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Two U.S. Positions on the Duty to Ensure Respect for the Geneva Conventions

When should the U.S. government reverse a previous U.S. interpretation of a treaty? Should there be a presumption against doing so, and what process and substantive reasons should be required to overcome that presumption? These are not overly academic questions given that a new administration will soon come into power. These are also issues that have arisen in recent times with respect to Executive Branch interpretation of the torture convention and of the geographic reach of human rights treaties. As I discuss below, this kind of interpretive problem may also be relevant for U.S. obligations under the Geneva Conventions.

Put another way, should Executive Branch lawyers follow something like a norm of stare decisis with respect to legal interpretations reached by their predecessors, and, if so, how should that norm apply? In a keynote speech before the Annual Meeting of the American Society of International Law in 2010, then-Legal Adviser to the State Department, Harold Koh, set out this framework:

“[G]overnment lawyers should begin with a presumption of stare decisis—that an existing interpretation of the Executive Branch should stand—unless after careful review, a considered reexamination of the text, structure, legislative or negotiating history, purpose and practice under the treaty or statute firmly convinces us that a change to the prior interpretation is warranted.”

Let’s now turn to the treaty provision in question. Common Article 1 of the Geneva Conventions provides the terms for state obligations under the Conventions. It succinctly states:

“The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”

The International Committee for the Red Cross (ICRC) recently published a set of commentaries which adopt an expansive view of Common Article 1. According to the ICRC, this provision means that all States that ratify the Conventions not only have a duty to respect the treaties but also have a duty to use their influence to ensure that other States respect the Geneva Conventions—regardless of where the armed conflict arises on the globe, which States or non-State actors are fighting in it, and whether the State that has influence has any real connection to the conflict.

In April 2016, the current Legal Adviser to the State Department, Brian Egan, also in a keynote speech before the Annual Meeting of the American Society of International Law, described efforts that the United States undertakes to ensure its military partners comply with the law of armed conflict. (Disclosure: During my time working for the Department of Defense, I played a role in commenting on some drafts of the speech.) The Legal Adviser then addressed—and rejected—an expansive reading of Common Article 1:

“Some have argued that the obligation in Common Article 1 of the Geneva Conventions to ‘ensure respect’ for the Conventions legally requires us to undertake such steps and more vis-à-vis not only our partners, but all States and non-State actors engaged in armed conflict. … [W]e do not share this expansive interpretation of Common Article 1 ….”

I have more recently come across an earlier position of the U.S. government on Common Article 1, and one that was adopted much closer to the drafting of the Geneva Conventions and to the timing of the U.S. decision to ratify the conventions. (Others, especially experts who work in this area, may already know about this earlier position, and so I may just be revealing my own ignorance in personally coming across it only recently.)

Continue Reading »

Just Security’s Questions for Clinton and Trump

Given the importance of tonight’s prime-time debate between US presidential candidates Hillary Clinton and Donald Trump, we’re again running our list of vital national security questions we want to see both candidates answer. The list below was originally compiled by a group of Just Security’s editors and contributors ahead the Commander-in-Chief Forum that took place earlier this month. Unfortunately, that event didn’t provide enough opportunity to press the candidates for their stances on some of the most important issues that will face whoever takes office next January. So once again, here are the questions we hope to see the candidates wrestle with in front of what may be the largest audience in presidential debate history.

(As with last time, this list is by no means exhaustive. If you’ve got questions that you’d like to see asked, Tweet at us —@just_security — and we might add them to the list.)

The contributors:

An Afghanistan veteran who wishes to remain anonymous; David Cole, Just Security editor and incoming national legal director at the ACLU; Daphne Eviatar, Just Security editor and Senior Counsel at Human Rights First’s Law and Security Program; Ryan Goodman, Co-Editor-in-Chief of Just Security and professor at NYU Law; Rose Jackson, senior policy advisor for the secure partnerships initiative at the Open Society Foundations and member of the Truman Project; Jameel Jaffer, Just Security executive editor and founding director of the Knight First Amendment Institute at Columbia University; Sarah Knuckey, Just Security editor and professor at Columbia Law School; John Reed, managing editor at Just Security and member of the Truman Project; Julian Sanchez, Just Security editor and fellow at the Cato Institute; Peter Singer, senior fellow at New America; Alex Whiting, Just Security editor and professor at Harvard Law School;Andy Wright, Just Security Editor and professor of law at Savannah University; Jonathan Zittrain, Just Security Editor and professor at Harvard University.

The questions:

Veterans issues

  • How do you plan to decrease the rate of sexual assault in the military?
  • Many veterans suffer from depression, anxiety, and PTSD because of their experiences in combat. What would you do to ensure that they all had access to high quality psycho-social services?
  • Why do you think so many veterans are committing suicide and how can this be better addressed?
  • If, in multiple surveys, veteran respondents have continued to show a preference for the VA health care system versus private care, why is there still such a strong push to privatize the VA?

International law

For Mr. Trump:

  • You have recently suggested that you would support the assassination, or at least removal by force, of North Korea’s leader, Kim Jong Un. Assuming that were for some reason a smart policy move but patently unlawful under international law including in violation of the UN Charter, would the fact that it was illegal make a difference to you and how so?

For Secretary Clinton:

  • In your book, you state that you proposed to President Obama to arm and train Syrian rebels to fight Assad. Assuming that was a smart policy move but patently unlawful under international law including in violation of the UN Charter, would the fact that it was illegal make a difference to you and how so?

For both

  • Do you commit to uphold international human rights law in all U.S. national security and counter-terrorism related actions at home and abroad?

Russia  Continue Reading »

The Early Edition: September 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. 

SYRIA

The emergency session of the UN Security Council on Syria ended last night with no action taken, reports the AP.

Russia was directly and repeatedly accused of war crimes at the UN Security Council, accusations centering on its widespread use of “bunker-busting” and incendiary bombs on the civilian population of the rebel-held areas east of the besieged city of Aleppo, Julian Borger and Kareem Shaheen report at the Guardian.

US ambassador to the UN Samantha Power accused Russia of supporting “barbarism” over the bombing of Aleppo, Power and her UK and French counterparts later walked out of the session as the Syrian representative addressed the Council. [Financial Times’ Erika Solomon and Geoff Dyer]

Russia’s bombing of Aleppo “blatantly contradicts Russia’s claim that it supports a diplomatic resolution,” Secretary of State John Kerry and the Foreign Ministers of the UK, France, Italy, Germany and the High Representative of the EU said in a joint statement issued yesterday.

Hundreds of civilians have been killed in Aleppo since the US-Russia brokered ceasefire broke down last week in the most intense bombing in Syria since the war there broke out, Raja Abdulrahim and Farnaz Fassihi report at the Wall Street Journal.

At least 26 civilians were killed in Assad regime airstrikes in Aleppo yesterday, Syrian activists said. [AP’s Philip Issa and Edith M. Lederer]

Aleppo was hit with dozens of airstrikes by Syrian government and allied forces overnight, the UK-based Syrian Observatory for Human Rights said. [Reuters]

The Syrian government and its Russian allies seem to be applying their “kill-all-who-resist” strategy to the most “ambitious” target so far: the rebel-held parts of Aleppo, Anne Barnard and Somini Sengupta observe at the New York Times.

The Syria ceasefire collapsed because the US and Russia could not overcome the “distrust and animosity” dividing them, Nathan Hodge writes at the Wall Street Journal.

The world needs to take a “global perspective” in fighting terror, the King of Jordan has said, pointing to Syria and Iraq as examples of where world leaders have failed, the Hill’s Jessie Hellmann reports. He also said that one problem in the fight against terror is that the US thinks it knows the Middle East better than the people who live there.  Continue Reading »

Recap of Recent Posts on Just Security (Sept. 19 – Sept. 23)

I. Saudi Arabia, Arms Trade, and the Law of Armed Conflict

II. US-Russia Pact and the Law of Armed Conflict

III. Surveillance

IV.  Turkey and Human Rights

V.  Pillaging and International Criminal Law

A Broken Playbook: The NYPD Targeted Muslims in Over 95-Percent of Investigations That Broke Surveillance Rules

The NYPD’s Intelligence Bureau consistently broke court-imposed rules governing investigations involving political activity, according to a recent report by the NYPD Inspector General. But the most troubling conclusion appears in a footnote on the first page: over 95-percent of these investigations targeted Muslims or individuals associated with Islam.

On its face, the report is about NYPD non-compliance with rules governing how officers must conduct certain sensitive investigations. Sampling cases closed between 2010 and 2015, the police watchdog found that the department continued more than half of its investigations beyond authorized limits, routinely used informants and undercover officers after authorizations expired, and justified their use with boilerplate language in records that were incomplete and riddled with errors. Left largely unsaid: American Muslims bore the brunt of these violations by a staggering ratio.

In a dizzying display of spin, the NYPD portrayed the report as a vindication of its past practices, appearing shocked – shocked! – to discover it’s been spying on Muslims all this time. But a look back at the origin of the report (and the office that produced it) shows that a motivating concern was the blanket surveillance of Muslim communities. A rulebook with alarmingly low standards only enabled this discriminatory pattern of surveillance, and it is long overdue for an overhaul.  Continue Reading »

The Early Edition: September 23, 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.

SYRIA

Crisis talks in New York aimed at reviving the ceasefire ended without resolution yesterday, reports Al Jazeera.

The Syrian army announced the launch of an offensive to recapture the rebel-held parts of Aleppo late last night making it clear it has no intention of adhering to US calls for the reinstatement of the failed US-Russia ceasefire deal, Liz Sly reports at the Washington Post.

The Assad regime’s bombing of rebel-held parts of Aleppo intensified to “unprecedented” levels today, residents and activists have told the AP.  The bombing appears to be “aimed at taking bit by bit the eastern sector of Aleppo and emptying it of its residents,” according to the UK-based Syrian Observatory for Human Rights, its head reporting that Syria is dropping barrel bombs while Russian planes are conducting strikes. [The Guardian’s Julian Borger and Kareem Shaheen]

The Aleppo offensive includes a ground attack, a Syrian military source said today. [Reuters]

“The United States will continue to pursue every avenue of progress that we can” in Syria, Secretary of State John Kerry said after the Syrian government offensive was announced, adding that he was “no less determined” but “even more frustrated.” [Washington Post’s Karen DeYoung]

Kerry and Russian Foreign Minister Sergey Lavrov are due to hold more talks today, though it’s doubtful that even “confidence-building measures” are within their reach at this point, according to the AP .

The UN resumed aid convoys to besieged parts of Syria yesterday. [New York Times’ Michael R. Gordon, Nick Cumming-Bruce and Somini Sengupta]

Grounding flights over Syria would only help Islamic radicals gain ground, Iranian President Hassan Rouhani said yesterday in opposition to the call to do so by Secretary Kerry. [AP’s George Jahn]

Turkey accused the US of supplying more weapons to Kurdish fighters in northern Syria this week, Reuters reports.

Russia and Turkey have been discussing the creation of a protocol to coordinate the their military flights over Syrian airspace, the Hürriyet Daily News reports, citing a Turkish military source.

The UN has extended the mandate of the investigation into chemical weapons attacks in Syria, the AP reports.

US-led airstrikes continue. US and coalition forces carried out 16 airstrikes against Islamic State targets in Syria on Sep. 21. Separately, partner forces conducted 13 strikes against targets in Iraq. [Central CommandContinue Reading »

Correcting the Record on Section 702: A Prerequisite for Meaningful Surveillance Reform, Part II

Last week, we argued that the public discussion surrounding two of the government’s most controversial mass surveillance programs – PRISM and Upstream – has not sufficiently acknowledged the broad scope of collection under these programs, which take place under section 702 of the Foreign Intelligence Surveillance Act (FISA). In short, hiding behind the counterterrorism justifications for section 702 is a broad surveillance program that sucks up massive amounts of irrelevant private data.

Today we show why, even though digital surveillance conducted under section 702 is directed overseas, such efforts collect substantial amounts of Americans’ private data. Next week we show how that data can be used for multiple purposes that have nothing to do with foreign intelligence or national security, including criminal investigations.

Our efforts come as lawmakers begin to debate the merits of the PRISM and Upstream surveillance programs ahead of section 702’s December 31, 2017 sunset date. We hope to clear misperceptions about the nature of a surveillance regime that is inconsistent with both the US Constitution’s “reasonableness” requirement as well as international human rights norms that require surveillance to be necessary and proportionate.  Continue Reading »

Are the U.S. and U.K. parties to the Saudi-led armed conflict against the Houthis in Yemen?

series of posts at Just Security have focused on the rules that apply to U.S. and U.K. support for the Saudi-led coalition’s military operations against the Houthi rebels in Yemen. A key question is whether supporting States, like the United States and the United Kingdom, avoid becoming a “party” to the armed conflict (and thus being bound by international humanitarian law) by providing assistance that stops short of engaging in direct combat. What type of support will render an assisting State a party to this conflict?

I. Current scope of U.S. and U.K. support

U.S. assistance to the Saudi-led coalition has included providing weapons, sharing intelligence, targeting assistance, and aerial jet refueling. In March last year the spokesperson for the NSC declared that in support of the Gulf Cooperation Council’s actions against Houthi violence, “President Obama has authorized the provision of logistical and intelligence support to GCC-led military operations.  While U.S. forces are not taking direct military action in Yemen in support of this effort, we are establishing a Joint Planning Cell with Saudi Arabia to coordinate U.S. military and intelligence support.”

In the UK, a joint report released last week by the House of Commons Business, Innovation and Skills and International Development Committees and another report by the Foreign Affairs Committee both state: “The UK’s support for Saudi Arabia’s military intervention in Yemen has been extensive while remaining short of engaging in the actual combat. … Our involvement extends from providing the planes and bombs for airstrikes to UK personnel in the Joint Combined Planning Cell and Saudi Air Operations Centre.”

This type of support is not exclusive to the armed conflict in Yemen. For example, we witnessed similar assistance when the U.S. provided aerial refueling and ferried allied soldiers from African nations to support France in the armed conflict in Mali in 2013.

II. Approaches for determining whether a State is a party to a pre-existing non-international armed conflict (NIAC)

In a context such as this particular conflict in Yemen, in which the U.S. and U.K. are not directly engaged in fighting, the traditional 2-pronged test to find them party to a non-international armed conflict (a certain intensity of fighting and level of non-state armed group organization) won’t be met as there are no direct hostilities between them and the Houthis. Nevertheless, as I set out in earlier posts at Just Security in 2015 (see here, and here), two approaches can assist in determining, from the facts, whether a country has become a party to a pre-existing NIAC for the purposes of applying international humanitarian law (IHL): (1) the “support-based approach”; and (2) the concept of “co-belligerency” under the international law of neutrality. Continue Reading »

The Early Edition: September 22, 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.

SYRIA

The US airstrikes on Syrian troops were “definitely intentional,” Syrian President Bashar al-Assad told the AP, and the US is to blame for the collapse of the cease-fire brokered with Russia.

Meanwhile, there is “strong” evidence that Russia carried out the airstrike on a UN aid convoy in Syria Monday, UK Foreign Secretary Boris Johnson said. [The Guardian’s Julian Borger]

Secretary of State John Kerry called for an immediate grounding of all military aircraft in “key areas” of Syria yesterday, in a last-ditch effort to preserve the ceasefire agreement. [Financial Times’ Geoff Dyer and Jack Farchy]

Kerry also accused Russia of inventing its “own facts” to explain Monday’s deadly attack on a UN aid convoy in Syria at a UN Security Council Meeting yesterday, after Russian Foreign Minister Sergei Lavrov first suggested it was perpetrated by terrorist ground forces in the area, and then implied it could have been the fault of a US drone, Karen DeYoung reports at the Washington Post.

Lavrov also sought to absolve the Syrian military of responsibility for the attack yesterday, saying it was not able to fly at night, when the attack took place. [New York Times’ Neil MacFarquhar]

While the US and Russia have previously butted heads over critical Syrian resolutions, the agenda for yesterday’s discussion did not even include a suggested course of action, instead paving the way for a meeting today in New York that will involve Kerry, Lavrov and their counterparts in over a dozen other European and Arab countries. [AP’s Bradley Klapper]

The international community’s credibility in upholding “our common humanity” is at risk of being destroyed by its failure to halt the war in Syria, UN Secretary-General Ban Ki-moon said yesterday as he called for full UN Security Council support for the Special Envoy working to convene formal peace talks.

The UN will resume aid deliveries suspended after the attack on the convoy, it said yesterday, the AP’s Philip Issa reports.  Deliveries to unspecified parts of Syria will begin as early as today, a spokesperson for the UN Office for the Coordination of Humanitarian Affairs said.[Al Jazeera]

Airstrikes on rebel-held parts of Aleppo killed dozens of Syrians overnight in what residents described as some of the most intense bombardments in months, Kareem Shaheen reports at the Guardian.

“Dark days lie ahead” unless John Kerry can convince his Russian counterpart to renew the ceasefire in Syria, observes the Economist.

“This is how Russia bombed the UN convoy.” Pierre Vaux at The Daily Beast lays out what he says is the “mounting body of evidence that “the Syrian regime and, in particular, the Russian military, hold responsibility for the atrocity.”

The evacuation of hundreds of Syrian rebels from their last foothold in the city of Homs began today, Reuters reports. The fighters and their families will head to the rebel-held Homs countryside.

Politics, not fighting, will bring the Syrian civil war to an end, Iran’s President Hassan Rouhani, whose country supports the Assad regime, said yesterday. [NBC News’ Jon Schuppe]

Russia will send its only aircraft carrier to waters off Syria’s coast, it announced yesterday. [CNN’s Tim Hume, Schams Elwazer and Bharati Naik]

US-led airstrikes continue. US and coalition forces carried out eight airstrikes against Islamic State targets in Syria on Sep. 20. Separately, partner forces conducted 14 strikes against targets in Iraq. [Central Command Continue Reading »