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Is Throwing a Rock Through a Window “Terrorism”? Some Federal Prosecutors Think So


Image by Tomas Castelazo— Wikimedia

Did you know that throwing a rock through the window of a Whole Foods could be punished as a federal crime of terrorism?  An Assistant United States Attorney admitted as much last year, when defending the little-known Animal Enterprise Terrorism Act (commonly known as the AETA) against a constitutional challenge by the Center for Constitutional Rights.

The AETA is a piece of designer legislation passed quietly in 2006 and used a handful of times since then, primarily to punish activists who release animals from fur farms. While there is no single, unifying definition of “terrorism” in federal or international law, there is consensus in the academic literature identifying violence or acts dangerous to human life as universally accepted components, and this consensus is generally mirrored in federal law, including in the Foreign Intelligence Surveillance Act, the USA Patriot Act, the Homeland Security Act, and the federal terrorism sentencing enhancement. And yet, the Animal Enterprise Terrorism Act has little to do with violence (unless we’re talking about preventing violence against animals by releasing them from fur farms and other facilities). It prohibits using a facility in interstate commerce (think: traveling across state lines, using a cell phone, or researching something on the internet) for the purpose of “damaging or interfering” with the operations of an animal enterprise and, in connection with that purpose, “intentionally damag[ing] or caus[ing] the loss of any real or personal property (including animals and records) used by an animal enterprise.”

The AETA defines “animal enterprise” incredibly broadly, as “a commercial or academic enterprise that uses or sells animals or animal products for profit, food or fiber production, agriculture, education, research, or testing.” Whole Foods is a commercial enterprise that sells animal products—as is every other non-vegan restaurant, grocery store, and clothing store in the country. Throwing a rock through its window is intentionally damaging its property, and doing so after you found the address using your smart phone fulfills the interstate commerce requirement.  Continue Reading »

Who is Responsible for the Yemen Funeral Bombing, and How?

The aftermath of a bombing by the Saudi-led coalition in Yemen. Photo: Almigdad Mojalli/IRIN

The Saudi-led coalition has acknowledged that it carried out the funeral bombing in Sana, Yemen earlier this month, resulting in more than 140 dead and 525 wounded.  The attack was particularly egregious because it was a “double tap,” meaning that there were two strikes roughly ten minutes apart, heightening the chance that first responders and medical personnel would be hit in the second strike as they rushed to the scene following the first hit. A UN panel of experts concluded that the strikes “violated [the coalition’s] obligations” under international law and that it “did not take effective precautionary measures to minimize harm to civilians.” The US condemned the attack in the strongest terms and announced that it was reviewing the assistance being provided to the coalition.

According to Britain’s minister for the Middle East,  the coalition has announced, cryptically, that the disastrous airstrikes were the result of a “deliberate error” made by an “individual” who “breached” procedure and will now be disciplined. Let’s assume that indeed one individual committed those acts. What are the possibilities for how someone within the coalition chain of command might be individually responsible for the attack, and in what way might that person(s) be responsible? We will refer to the underlying offense as targeting civilians, which is shorthand here for either an attack on civilians per se or an attack involving an excessive loss of civilian life compared to the expected military advantage. Continue Reading »

The Early Edition: October 26, 2016

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

Just Security’s Three-Year Anniversary Event, “National Security and Transparency in this Administration and the Next,” is taking place on Nov.2. Join us for a wide-ranging discussion with panelists Amy Davidson (Staff Writer, The New Yorker), Jack Goldsmith (Henry L. Shattuck Professor, Harvard Law School), Jameel Jaffer (founding director of the Knight First Amendment Institute at Columbia University; Former deputy legal director at the ACLU; Executive Editor, Just Security), and David McCraw (Assistant General Counsel, The New York Times). Details are available here.


US commanders see the Islamic State resistance strengthening as Iraqi forces get closer to Mosul, the head of US Central Command Army Gen. Joseph Votel said during a surprise visit to the Qayyarah Airfield West logistics base in Iraq last night. [NBC News’ Courtney Kube]

Iraqi special forces evacuated over 1,000 people from villages near the front lines of the operation to retake Mosul from the Islamic State, the AP reports.

The US and its allies are planning to launch the operation to liberate Raqqa before the Mosul operation is done, Defense Secretary Ash Carter said yesterday. Matthew Dalton and Gordon Lubold report at the Wall Street Journal.

Carter spoke alongside French Defense Minister Jean-Yves Le Drian whom he met along with other key coalition members in Paris yesterday, Thomas Gibbons-Neff reports at the Washington Post.

Conducting major operations in both Raqqa and Mosul would stretch the coalition, a senior military official warned, reports the AP’s Lolita C. Baldor.

The Islamic State has moved hundreds of civilians from villages around Mosul to act as a human shield as security forces bear down on the city, the UN saying the militants may have killed almost 200 people, the New York Times’ Tim Arango writes.

The Islamic State’s “spoiler attacks” in towns far from Mosul have not forced the US-led coalition to divert resources from the battle to retake Mosul, US officials insisted. [AP’s Joseph Krauss and Qassim Abdul-Zahra]

The “scorched earth” tactics being employed by the Islamic State as it retreats have been captured by satellite imagery, reports Laris Karklis at the Washington Post.

There are concerns that Sunnis in Mosul may face a backlash for their perceived sympathy for the Islamic State during the offensive to recapture the city from the insurgents, who have occupied Mosul for two years, Kareem Fahim reports at the Washington Post.

Iraq’s central government in Baghdad is “tying itself to a terrorist organization” and Turkey will take whatever steps are necessary to defend its soldiers stationed at the Bashiqa military camp near Mosul, Turkey’s Foreign Minister Mevlüt Çavuşoğlu said yesterday. [Hürriyet Daily News]

Iraq may not be fully prepared for the liberation of Mosul, analysts have warned, Baghdad’s government having not yet formalized a national strategy for stabilizing the Sunni provinces that have been liberated from the Islamic State, which should help to end Sunni exclusion and neutralize radicals, Salah Nasrawi writes at Al Jazeera.


The Pentagon’s Syrian civilian casualty probes are inadequate and incomplete, Amnesty International said yesterday, calling for the Pentagon to share more information on the 300 deaths it said resulted from US-led coalition airstrikes between Sep. 2014 and July 2016, some of which may have violated international humanitarian law. Missy Ryan reports at the Washington Post. Continue Reading »

How We Read a NYT Story on UN Responsibility for Peacekeepers’ Misconduct

A new Haitian cholera vaccination program. Image by UN/MINUSTAH/Logan Abassi

In this post, we’re trying something attempted once before at Just Security. Below, we present an almost line-by-line annotation of last night’s New York Times story on UN acceptance of moral—but not legal—responsibility for UN peacekeepers having caused a cholera epidemic in Haiti. This issue transcends Haiti and issues of public health—it goes to the heart of UN legal responsibility for wrongful actions by peacekeepers across a range of situations now and in the future. And the story involves a potentially controversial position adopted by the US administration in this ordeal.

We fully understand that reporters are under pressure to communicate complicated ideas to a wide audience, and often under tight deadlines and subject to editorial control. With this in mind, the following is intended to identify legal implications of the news being reported, the significance of some of the revelations, and paths for further investigative reporting. (And, yes, we hope to make more of a habit of publishing these types of dissections of media reporting on national security issues.)

Also, full disclosure: Philip Alston and one of us (Ryan) are faculty directors and co-chairs of NYU Law School’s Center for Human Rights and Global Justice, where Just Security is also housed. That said, Just Security is editorially independent from the Center.

U.N. Plans to Pay Victims of Cholera Outbreak It Caused in Haiti[1]
by Somini Sengupta and Jonathan M. Katz
New York Times

[1] Yes, headlines need to be short and to the point, but this title leaves the reader with an overly positive impression, and ignores that the UN’s action is being taken on the back of a failure to admit any legal responsibility. The headline also doesn’t capture the implication for peacekeeping more generally. An example of a more accurate title might be something like: “U.N. Plans to Pay Victims of Cholera Outbreak It Caused in Haiti—But Won’t Admit Legal Fault of Peacekeepers.”   

UNITED NATIONS — Ever since United Nations peacekeepers introduced a devastating cholera epidemic to Haiti in 2010, Secretary General Ban Ki-moon has insisted that the global body is immune from legal claims[2]. In the past few months, he has acknowledged a “moral responsibility” for the epidemic[3], but he has stopped short of saying sorry[4].

[2] Immunity is not what’s in question in today’s news. Instead, it’s a dispute over whether the UN should acknowledge legal responsibility (different from immunity) for causing the cholera outbreak. This dispute is most clearly expressed in the disagreement between the UN Special Rapporteur Philip Alston and other UN officials. But both Alston and the UN seem to agree that the UN enjoys complete immunity and thus could not be sued in national courts. Framing the story as though the Secretary-General is insisting on immunity—against some (unstated) critics—also amplifies the most egregious mistake in the NYT story (see #11 below).

[3] This is factually inaccurate in a significant respect. The Secretary-General expressed “a moral responsibility to help the Haitian people stem the further spread of this cholera epidemic.” That is very different than acknowledging a moral responsibility for the epidemic.

[4] It would be legally more accurate to use a term like “apologize” instead of “sorry.” Indeed, the NYT story becomes unnecessarily confusing when it reports below that the UN Secretary-General has already expressed “deep regret.” Many readers will be left to wonder what the difference really is between “deep regret” and “sorry.” There may actually be no difference between saying “sorry” and expressing “regret.” Neither are key terms of art in international legal practice, and might even be interchangeable. Saying sorry is not necessarily  significant in legal terms. For example, an official can express “sorrow” (and words like, “I am sorry”) for harm caused by a third-party. The important question that close observers want to know is whether the Secretary-General will “apologize” for the UN actions. If he does, it could go a long way to indicating, or implicating, acceptance of legal responsibility.

Now, with barely two months left in his term, Mr. Ban’s administration is scrambling to compensate[5], for the first time, those who have suffered, with a plan to give them or their communities cash payments from a proposed $400 million cholera response package. He also wants to make good on an unfulfilled promise to eradicate cholera from Haiti as the disease continues to claim lives. Continue Reading »

Untangling the Web of Actors in Syria and Additional Complexities of Classifying Armed Conflicts

As the international community struggles to find solutions to the humanitarian crisis in Syria, several recent posts at Just Security and elsewhere have offered interpretations of international law that aim to provide greater protections for civilians and open up new opportunities for holding accountable those responsible for the daily suffering we see in the news.

But for a situation as complicated as Syria, considerable analysis is required to determine just what types of armed conflicts exist there and what laws apply. Essentially, we have to disaggregate the situation to see clearly who the various actors are and what their relationships are to the hostilities. (Let’s call this the “rule of disaggregation.”) When you don’t apply this rule —and I’m not suggesting any of the contributors I mention in this post have made this mistake—it is much harder to see what international law can offer. And yet, on the other hand, as James G. Stewart recently explained, disaggregating a conflict makes it much harder to sort out how to apply the law and to what actions exactly.  Continue Reading »

Shots Fired: A Reply to Gill and Watkin

Thanks to Terry Gill and Ken Watkin for their replies to my earlier post. To recall, the ICRC takes the view that the use of armed force by one State on the territory of another, without its consent, triggers an international armed conflict between the two States to which the law of international armed conflict applies. I offered my arguments in favor of this view here and responded to criticisms of that view by Gill and (to a lesser extent) Watkin here. We all agree that the classification of conflicts has important implications for the conflagration in Syria.

In his reply, Gill writes that his “position is that a State uses force against another State when it engages in hostilities against its armed forces, attacks national assets under the territorial State’s control, or occupies its territory.” On this view, a State that launches terror attacks on the civilian population of another State, or bombs refugee camps owned and operated by the UN or an INGO in the territory of another State, does not use force against that State. Nor does the attacking State violate the law of armed conflict (international or non-international) or commit war crimes. I find this view difficult to accept.

Gill also writes that

an intrusion or violation of sovereignty in itself does not determine whether conflict between them exists. If that were the case, any unlawful aerial incursion would seemingly trigger an armed conflict. That would be hard to defend considering the frequency at which such incursions occur.

Watkin endorses this objection in his reply as well.

This objection seems misplaced, for two reasons. First, the Commentary clearly refers to armed interventions and armed intrusions involving violence, that is, to attacks on the State’s territory. Second, the Commentary clearly

rule[s] out the possibility of including in the scope of application of humanitarian law situations that are the result of a mistake or of individual ultra vires acts, which – even if they might entail the international responsibility of the State to which the individual who committed the acts belongs – are not endorsed by the State concerned. Such acts would not amount to armed conflict.

Accordingly, an unlawful but harmless aerial incursion, resulting from a pilot’s mistake or contrary to a pilot’s instructions, would not trigger an armed conflict. Continue Reading »

The Early Edition: October 25, 2016

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.


Kurdish Peshmerga and Iraqi forces are advancing on Mosul on separate fronts in the face of stiff resistance from the Islamic State, which is launching counterattacks in other towns, Al Jazeera reports.

The Islamic State took full control of the town of Rutba in the western Iraqi province of Al Anbar yesterday, Al Jazeera reports.

The aim of the Islamic State’s attacks in other towns is to draw coalition troops and resources away from Mosul, explains the Wall Street Journal editorial board, discussing the progress of the battle for Mosul so far.

Kurdish forces surrounded key town Bashiqa and are preparing to launch a full assault, advancing with caution due to the threat of suicide bombs from the Islamic State. [BBC]

The Islamic State has refined innovative tactics and launched diversionary attacks along the frontiers of their self-styled caliphate, with many now fearing the group has “more surprises in store” as coalition forces close in on Mosul. Joseph Krauss at the AP takes a look at tactics the Islamic State might employ.

The Islamic State is using asymmetric warfare tactics to inflict damage on advancing Iraqi forces and terrorize civilians, CNN’s Tim Hume explains.

Turkey will use all rights and opportunities in Iraq if needed, including ground operations, Turkey’s foreign minister said. [Reuters]

Turkey’s decision to “pick a fight” with Iraq makes the logistical and strategic “nightmare” of reconciling the competing interests of multiple countries and groups in the battle for Mosul more likely, observes the New York Times editorial board.

Turkey’s disputed involvement in the fighting has intensified the risk that the Mosul operation could morph into a new frontline in the wider conflict between Sunnis and Shi’ites, Simon Tisdall writes at the Guardian.


Syrian government forces captured strategic high ground in besieged Aleppo yesterday as its ally Russia said it was not planning any more “humanitarian pauses” in the city’s rebel-held districts, the AP’s Bassem Mroue reports.

Russian and Syrian warplanes have not conducted airstrikes on Aleppo in the last seven days, the Russian Defense Ministry said today. [Reuters] Continue Reading »

Letter to the Editor: The Best Way to Protect Hospitals in Wartime—Enforce Existing Law

No warfighter should attack a facility that houses the infirm and those who care for them.  Likewise, no able-bodied warfighter should seek protection in a medical facility, and never should an attack be launched from one.  Each happens though, as Neve Gordon and Nicola Perugini address in, ‘Military Attacks on “Hospitals Shields”: The Law Itself Is Partly to Blame’.  The question is what legal policy best protects the innocent when combatants take advantage of a medical facility’s protected status.

The problem that the authors identify is not a legal issue, as they argue, but an empirical one.  No alternative to the status quo is better for the innocent than the rule and exception that now prevail.  The exception that the authors argue against is a crucial component of protecting the innocent.

The authors’ alternative norm will not protect individuals in medical facilities; it will merely subject them to different perils.  Gordon and Perugini advocate a rule that, “categorically prohibits the use of lethal force against (hospitals),” under all circumstances, without exception.  While the authors mention the perverse incentives this norm will create, they do not properly identify the consequences their preferred legal policy will have on patients, caregivers, and combatants.  Those consequences deserve examination.

The authors’ proposal invites warfighters to use hospitals as base camps and fighting positions.  Belligerent groups will force hospitals to host them.  It is unlikely that effective healthcare will remain a priority, but it is certain that in many if not most cases a hospital’s occupiers of that character will be cruel to the innocents found there.  Medical treatment will be subordinate to the belligerents’ needs, and countless doctors and patients, no matter how infirm, will be forced to accommodate or support their captors’ cause. Continue Reading »

Letter to the Editor: “Lines in the Sand”—A Reply to Professor Haque

I have noted with interest Professor Adil Haque’s critique of my posts (here and here) concerning the classification of armed conflicts involving non-consensual cross border action by non-State actors—U.S. strikes against ISIL in Syria being a case in point.  I have also had the opportunity to read Professor Terry Gill’s response to the Haque critique regarding Gill’s article on the classification of the Syrian conflict. It is important that this issue be looked at from all perspectives, especially in light of the ICRC’s 2016 Commentaries to the Geneva Conventions on this topic, and Professor Haque’s comments add to that dialogue. Unsurprisingly, I find Professor Gill’s response highly persuasive on a number of points that I would otherwise raise, and therefore confine my comments to the specific issues raised in Professor Haque’s piece concerning consent, and the issue of assessing what a State actually does, and against whom, before determining how military action is categorized. Continue Reading »

How to Move Beyond South Africa’s Notice of Withdrawal from the ICC


International Criminal Court, The Hague, Netherlands-Hypergio, Wiki Commons

As the dust settles following South Africa’s controversial and perhaps unconstitutional announcement on October 20 that it will withdraw from the International Criminal Court, both African and non-African States Parties of the ICC should explore ways to improve the pursuit of justice rather than backslide into dens of impunity.  The forthcoming session of the ICC Assembly of States Parties in The Hague on November 16-24 likely will see government and court officials try to grapple, once again, with the problem.

There is a long history underpinning the African relationship with the ICC.  I recall vividly how forthrightly the South African Government argued for justice and against impunity in the years of negotiations leading to and beyond the Rome Statute of 1998.  I personally witnessed it frequently, including when I sought African support for certain U.S. positions that would have narrowed the means by which to bring situations within the court’s jurisdiction.  South Africa pushed back hard on our proposals.  Frankly, there was no stronger voice than that of South Africa, which led the continent of Africa into the ICC with skillful enthusiasm as the country emerged from apartheid and gave us globally recognized leaders, such as Nelson Mandela, as champions for the protection of fundamental human rights and the enforcement of international criminal justice.

During six years of negotiations creating the ICC, including the two years drafting the Elements of Crimes and the Rules of Procedure and Evidence, I do not recall the South African delegation protesting the reach of the court’s personal jurisdiction to include the masterminds of atrocity crimes, particularly political and military leaders.  Indeed, holding such individuals accountable was always the clear objective of the ICC in the UN talks (as unambiguously demonstrated in Article 27 of the Rome Statute) even while negotiators from many countries would trumpet how South Africa had dealt with the perpetrators of apartheid of all ranks before its Truth and Reconciliation Commission.

The crime of apartheid was purposely included as a crime against humanity in Article 7 of the Rome Statute because of the South African experience and with the understanding that its illegality had become a matter of customary international law.  South African negotiators proudly pressed that point and to my recollection never suggested that only mid-level and low-level perpetrators of apartheid should be investigated and, if merited, prosecuted by the ICC.  Any such hypocrisy would have been noticed.

Nonetheless, as the angst of some—not all—African leaders rose during the last decade over the number of their own ilk being investigated, and lately convicted, of atrocity crimes by the ICC, there have been recurring talks and even amendment (Rule 134 quater) to the Rules of Procedure and Evidence to address African concerns.  There also has been defiance of the ICC by African leaders willing to prevent witness testimony (thus cratering cases), to permit travel to their countries of indicted fugitives from the ICC, and now action by Burundi to move toward withdrawal and formal notice by South Africa that it is doing so.  More African countries—led by individuals who seem not to be listening to their people and the victims of atrocity crimes but rather trying to protect themselves from scrutiny either for alleged criminal conduct or blatant failure to cooperate with the ICC—may take the cue.

Richard Goldstone and Alex Whiting have expressed excellent points in their two essays in Just Security.  Beyond their views, I want to propose several ways that African governments and the ICC itself can improve their relationship. Continue Reading »