Could Qaddafi’s downfall be the last nail in the coffin for the War Powers Resolution?

As negotiations continue for the surrender of the few cities where deposed tyrant Col. Muammar el-Qaddafi could be hiding, how peaceful the endgame turns out to be may impact the rhetoric surrounding President Obama’s decision to enter the fray in the first place. Part of that discussion will undoubtedly concern the War Powers Resolution (“WPR”), the post-Vietnam legislation that promised to hold future presidents accountable to Congress when engaging in international conflicts. The law has been largely ignored by past commanders in chief, and no Congress has ever enforced the act. Although Obama has claimed that the WPR does not apply to US involvement in Libya, a successful intervention could make the legislation even less potent than it is now. Continue reading “Could Qaddafi’s downfall be the last nail in the coffin for the War Powers Resolution?”

Cuba Isn’t Worth the Headache. But See Colombia.

When ‘Cuba’ and ‘national security’ are mentioned in the same sentence, they tend to be followed by phrases like ‘refugee wave,’ ‘Marxist revolutionaries’ and ‘missile crisis.’ The steps towards normalization of relations with the old Communist foe have caused reactions as varied as the embargo is old, but the ship has set sail and Americans should start accepting that this country’s future with Cuba is going to look a lot different than it did to their parents. Or grandparents. Or great-grandparents. Continue reading “Cuba Isn’t Worth the Headache. But See Colombia.”

Difficulties in Prosecuting Islamic State Members Under International Law

Since its emergence in 2013, The Islamic State has used increasingly violent tactics in an attempt to establish a worldwide caliphate.[i] The Islamic State is accused of committing crimes of unspeakable cruelty including mass executions, sexual slavery, rape and other forms of sexual and gender-based violence, torture, mutilation, enlistment and forced recruitment of children, and the persecution of ethnic and religious minorities.[ii] On March 13th, 2015, the Office of the United Nations High Commissioner for Human Rights published a damning report depicting purported abuses committed by members of the Islamic State including crimes against humanity, war crimes against the civilian population, and genocide.[iii] Amnesty International reports that the Islamic State has carried out ethnic and religious cleansing “on a historic scale”, systematically targeting non-Arab and non-Sunni Muslim communities, killing or abducting thousands, and displacing hundreds of thousands.[iv] On March 14th, 2016, Secretary of State John Kerry announced that the United States government determined the crimes committed by the Islamic State against Yazidis, Christians, and Shiite Muslims in Iraq and Syria amounted to genocide.[v]

Although the decision to classify the Islamic State’s actions as genocide is significant, it will be difficult for the international community to prosecute the leaders, especially while the conflict is on-going. While it may be possible to indict members of the Islamic State, because the conflict is on-going and because so many members of the organization reside in territories controlled by the Islamic State, prosecution is severely frustrated due to an inability to locate or capture leaders. If a leader is captured, the international community has three options in prosecuting Islamic State members for international crimes including: prosecuting criminals in the domestic State courts, before and ad hoc tribunal, or before the International Criminal Court.[vi]

States whose citizens who are members of the Islamic State have the option to investigate their own citizens to determine if they are responsible for committing crimes that amount to genocide. Under this option States may prosecute their own citizens for assisting terrorist efforts or committing terrorist acts. Currently it is unlikely that a majority of members of the Islamic State who are citizens of Iraq or Syria will be prosecuted because of the on-going conflict. Many members reside in areas under complete control of the Islamic State, making even basic judicial functions, such as execution of warrants, impossible. Because high-ranking officials of the Islamic State are often in hiding, their capture and prosecution is highly unlikely. In addition, some States have long-arm statutes which allow them to prosecute alien terrorists who have engaged in or provided support for a foreign terrorist organization.[vii] The United States, France, and Germany are all able to prosecute members of the Islamic State under their own domestic laws if they are captured.[viii]

The United Nations Security Council can establish an ad hoc tribunal to prosecute Islamic State members. The Security Council has created two tribunals in the past, the first to prosecute criminal violations during the genocide in Rwanda and the second to prosecute criminal violations in Yugoslavia.[ix] Because both Iraq and Syria are members of the United Nations, both States would be required to cooperate and abide by the decision of the tribunal.[x]

There have been increasing calls for the International Criminal Court (ICC) to prosecute Islamic State leaders.[xi] The ICC prosecutor, Fatou Bensouda, addressed the issue and stated while the Islamic State has committed atrocious crimes, her jurisdiction is too narrow launch a prosecution.[xii] Article Thirteen of the Rome Statute, permits the International Criminal Court (ICC) to exercise jurisdiction where:

(1) A State Party refers the situation to the Court pursuant to Article 14;

(2) The UN Security Council refers the situation to the Court under Chapter VII of the UN Charter; or

(3) The Prosecutor opens an invest1igation proprio motu under Article 15 on the basis of information on crimes within the jurisdiction of the Court.[xiii]

Because Iraq and Syria are not parties to the Rome Statute, the ICC can only exercise jurisdiction over its nationals if the Security Council refers the situation to it. [xiv] Because there are members of the Islamic States who are citizens of States which are party to the Rome Statute, it would be possible for the ICC to prosecute those members.[xv] The ICC has reviewed the nationalities of the highest ranking officials and as determined that they are primarily citizens of Iraq and Syria, therefore the ICC has not chosen to prosecute those mid-level members as it conflicts with the Prosecutor’s policy to indict those high-ranking leaders who are most culpable.[xvi] The Security Council does have the ability to refer the situation to the ICC, although this option is hindered by the requirement that the referral be unanimous among permanent members of the Security Council. The United States may be wary of permitting and ICC investigation which would scrutinize its own military operation in the area. [xvii]

While options exist for the international community in prosecuting Islamic State leaders, the possibilities are severely limited by an inability to locate and capture Islamic State members. Until the situations in Iraq and Syria have stabilized and the militant branch of the Islamic State is defeated, it is highly unlikely that the international community will be able to prosecute the majority of Islamic State leaders. If the Islamic State folds into the legitimate governments of Iraq or Syria, it is unlikely that the international community will be able to force either State to prosecute it’s own citizens, or to comply with international prosecution.

 

 

 

[i] Tim Lister, What does ISIS rally want?, CNN (Dec. 11th 2015), http://www.cnn.com/2015/12/11/middleeast/isis-syria-iraq-caliphate.

[ii] Fatou Bensouda, Statement, on the Alleged Crimes Committed by ISIS, International Criminal Court, (Apr. 8, 2015), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-08-04-2015-1.aspx.

[iii] Anna Brennan, Prosecuting ISIL before the International Criminal Court: Challenged and Obstacles, 19 Amer. Soc. Int. L. 21, (Sept. 17 2015), https://www.asil.org/insights/volume/19/issue/21/prosecuting-isil-international-criminal-court-challenges-and-obstacles#_edn7. (citing UN Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Iraq in the Light of Abuses Committed by the So-Called Islamic State in Iraq and the Levant and Associated Groups, U.N. Doc. A/HRC/28/18, at 5–14 (Mar. 13, 2015)).

[iv] Ethnic Cleansing on a Historic Scale: Islamic State’s Systematic Targeting of Minorities in Northing Iraq, Amnesty International, (2014), file:///C:/Users/Sarah/Downloads/mde140112014en.pdf.

[v] Eric Banco, US Says ISIS Crimes Amount to Genocide, But Prosecution Is Difficult, Internal Business Times. (Mar. 17 2016)  http://www.ibtimes.com/us-says-isis-crimes-amount-genocide-prosecution-difficult-2338504

[vi] Id.

[vii] 18 U.S.C. § 2339A, !8 U.S.C. § 2339B.

[viii] Joshua Keating, Why It’s So Hard to Prosecute ISIS for War Crimes, Slate, (Apr. 8 2015), http://www.slate.com/blogs/the_slatest/2015/04/08/isis_and_the_icc_why_it_s_will_be_tough_to_prosecute_the_islamic_state_for.html

[ix] Eric Banco, US Says ISIS Crimes Amount to Genocide, But Prosecution Is Difficult, Internal Business Times. (Mar. 17 2016)  http://www.ibtimes.com/us-says-isis-crimes-amount-genocide-prosecution-difficult-2338504

[x] Id.

[xi] Joshua Keating, Why It’s So Hard to Prosecute ISIS for War Crimes, Slate, (Apr. 8 2015), http://www.slate.com/blogs/the_slatest/2015/04/08/isis_and_the_icc_why_it_s_will_be_tough_to_prosecute_the_islamic_state_for.html

[xii] Fatou Bensouda, Statement, on the Alleged Crimes Committed by ISIS, International Criminal Court, (Apr. 8, 2015), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-08-04-2015-1.aspx.

[xiii] Rome Statute of the International Criminal Court, art. 13, 2187 U.N.T.S. (Jul. 17 1998).

[xiv] Anna Brennan, Prosecuting ISIL before the International Criminal Court: Challenged and Obstacles, 19 Amer. Soc. Int. L. 21, (Sept. 17 2015), https://www.asil.org/insights/volume/19/issue/21/prosecuting-isil-international-criminal-court-challenges-and-obstacles#_edn7.

[xv] Id.

[xvi] Id., see, Fatou Bensouda, Statement, on the Alleged Crimes Committed by ISIS, International Criminal Court, (Apr. 8, 2015), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-08-04-2015-1.aspx.

[xvii] Id. at xiv.

United States Sanctions on Iran after the Nuclear Deal

The Iran Nuclear Arms Deal is a landmark, but this deal has been heavily criticized due to the United States economic penalties toward Iran. The circumstances in Iran has put the United States in a difficult situation as they have had to rely on sanctions to deter Iranian actions, but Iran has complied with the deal and expects more of an economic boom. This has led other countries in Europe and Asia uncertain whether to deal in legal business with Iran due to United States laws in sanctions and financial regulations.

The Iran Nuclear Deal stated that Iran would sacrifice two-thirds of its ability to enrich uranium, which is used to make the core of a nuclear bomb, and to be monitored by the International Atomic Energy Agency (IAEA).[1] Iran would agree to IAEA inspectors monitoring its nuclear plants and other facilities. Once the IAEA has confirmed that Iran has taken these steps, America would lift nuclear-related economic sanctions.[2] These sanctions include oil embargos and financial restrictions.[3] By lifting these economic sanctions, it was estimated $100 billion of frozen Iranian assets would be released. Iran would remain subject to a United Nations arms embargo for five years.[4]

The United States government has engaged in foreign trade with Iran even though it has forbidden most American commerce with Iran.[5] The United States implements sanctions through the Treasury Department Office of Foreign Assets Control (OFAC).[6] These sanctions apply to United States companies, and anyone in the United States.[7] If companies in the Untied States were to trade with Iran they could be fined and prosecuted for civil violations that do not require a showing of intent or knowledge, and are punishable by heavy penalties.[8]

These sanctions and regulations have caused uncertainty for Asian and European government and companies doing legal business due to the fear of being prosecuted by the United States.[9] Since United States banks can not do business in Iran, there is a prohibition of transactions in dollars.[10] This is a large issue as it is a main business currency through the United States financial system.[11] This causes international banks hesitant in processing Iranian transactions, due to fear that the United States prosecuting these banks because of sanctions they have implemented in Iran.

Even though some sanctions have been lifted it is not clear what type of trading is still allowed with Iran.[12] Furthermore, Iran’s action in the area is seen as hostile. They continue to test ballistic missals.[13] The United States fears that these ballistic missals could be used one day to deliver a nuclear payload.[14] Even though these tests are not covered by the nuclear deal the United States has responded by placing sanctions on Iranian business and individuals but not on the nation.

United States sanctions upon Iran have caused fear of prosecution to business and banks that deal with Iran. This in some ways has caused Iran not to see the large economic boom they expected. Due to Iran’s continued ballistic testing in the area, and fear that these missals could one day carry a nuclear payload, the United States has sanctioned Iran even more. This causes the United States to be in a precarious situation as one of the reasons to the nuclear deal was to help Iran get its economy back on track, but at the same time the United States must implement sanctions on hostilities, and walking away from the deal would cause further destabilization in the area.

 

[1] David Blair, A Summary of the Iran Nuclear Deal, (Jul. 14, 2015), http://www.telegraph.co.uk/news/worldnews/middleeast/iran/11739214/A-summary-of-the-Iran-nuclear-deal.html

[2] Id.

[3] Id.

[4] Id.

[5] U.S. Census Bureau, Trade in Goods with Iran, (Dec. 12, 2015), https://www.census.gov/foreign-trade/balance/c5070.html

[6] Alacra Compliance Primer, Enforcement Actions for U.S. Sanctions Violations Offer Lessons for Compliance, (Sept. 14, 2014), https://www.alacra.com/alacra/help/alacracomplianceprimer3.pdf

[7] Id.

[8] Id.

[9] Matthew Lee, Analysis: Iran Nuclear Deal Puts U.S. in Bind Amid Criticism, (Apr. 11, 2016), http://abcnews.go.com/Politics/wireStory/analysis-iran-nuclear-deal-puts-us-bind-amid-38301740

 

[10] PRESSTV, Banks still afraid of US fines to process Iran deals, (Mar. 23, 2016), http://www.presstv.com/Detail/2016/03/23/457187/Banks-still-afraid-of-US-fines-to-process-Iran-deals/

[11] Id.

[12] Tom Arnold and Jonathan Saul, Iranians Exasperated as U.S. sanctions frustrate deal making, (Mar. 22, 2016), http://www.reuters.com/article/us-iran-trade-finance-idUSKCN0WO1Y3

[13] Fox News, Iran to US: Missile Program “not open to negotiation,(Apr. 10, 2016), http://www.foxnews.com/us/2016/04/10/iran-says-missile-program-is-not-negotiable.html

[14] Id.

National Security v. International Law in the Wake of the Paris and Brussels Attacks

By Ayat Mujais

After the recent terror attacks on Brussels and Paris, there has been a push from numerous nations, such as the United States and France, to increase the use of force against the Islamic State of Iraq and the Levant (“ISIL”) in order to eradicate the dangers that it poses to national security. Both countries have already claimed that ISIL poses a major national security risk and have used force in Syria and Iraq to fight ISIL.[1] However, there has been backlash from various legal scholars who have determined that using force against ISIL to protect national security, particularly in Syria, is a violation of international law and the UN Charter.[2] This raises the important question of how to balance national security concerns against international law in the wake of extremists groups such as ISIL.

Article 2(4) of the U.N. Charter states that “All members shall refrain…from the threat or use of force against…any state”.[3] Although ISIL is not itself a “state”, ISIL resides within the territories of Syria and Iraq; therefore, any attacks on ISIL within either state essentially is an attack on the states’ territorial integrity. So how can one justify attacking ISIL? For countries such as France and Belgium, the answer is simple. The U.N. Charter provides in Chapter VII an exception, one that allows military intervention for the sake of self-defense if there is a threat of an imminent armed attack.[4] Because ISIL has succeeded in attacking cities in both France and Brussels, these states can justify using force without violating international law by claiming that they are acting in self-defense and protecting their national security.

The question is where does this leave states like the United States, who has claimed self-defense in order to use force against ISIL, but had not had an armed attack from ISIL within its borders. Many say the U.S. use of force against ISIL has been in violation of international law due to lack of justification under both traditional and customary international law – the United States lacks state consent from Syria[5] or from the Security Council[6] to use force on Syrian territory, and claims of humanitarian intervention[7] and anticipatory self-defense[8] are not viable. The only potential successful legal argument would be for the United States to claim self-defense of their national security.

To prove an armed attack is imminent for the sake of self-defense, the probability of an attack must be 100%.[9] However, the emergence of ISIL and its ability to carry out attacks on states at any time brings a new challenge to the concept of imminence. ISIL has proven that it will carry out its threats of attacks, as was seen with the incidents in Paris and Brussels.[10] Indeed, ISIL has threatened to attack the United States through proxies within the United States.[11] However, there is not 100% probability that ISIL will actually carry out these threats in the near future. It is possible that due to the fact that ISIL is by far the richest and most technologically advanced terrorist organization of its time, the concept of imminence under the right to self-defense is shifting to allow more leeway in states using force against ISIL in the name of national security, even without finding that there is 100% probability of an armed attack.[12]

This view is supported by the fact that the U.N. Security Council adopted Resolution 2249 this past November, which calls for “all necessary measures” to eradicate ISIL.[13] Although this Resolution does not provide a legal basis or authorization for the use of force, it does show that the use of force against ISIS may be permissible in self-defense of a state’s national security, especially in the wake of attacks such as those in Paris and Brussels.[14]

 

 

[1] Jethro Mullen and Margot Haddad, ‘France is at war,’ President Drancois Hollande says after ISIS attack, CNN (Nov. 16, 2015), http://www.cnn.com/2015/11/16/world/paris-attacks/; Letter from the President – Authorization for the Use of United States Armed Forces in Connection with the Islamic State of Iraq and the Levant, https://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection.

[2] Theo Farrell, Are the US-led air strikes in Syria Legal – and what does it mean if they are not?, Telegraph, Sept. 23, 2014, http://www.telegraph.co.uk/news/worldnews/middleeast/syria/11116792/Are-the-US-led-air-strikes-in-Syria-legal-and-what-does-it-mean-if-they-are-not.html.

[3] U.N. Charter art. 2(4).

[4] U.N. Charter art. 46-51, http://www.un.org/en/sections/un-charter/chapter-vii/

[5] Theo Farrell, Are the US-led air strikes in Syria Legal – and what does it mean if they are not?, Telegraph, Sept. 23, 2014, http://www.telegraph.co.uk/news/worldnews/middleeast/syria/11116792/Are-the-US-led-air-strikes-in-Syria-legal-and-what-does-it-mean-if-they-are-not.html

[6] U.N. Charter art. 46-51, http://www.un.org/en/sections/un-charter/chapter-vii/.

[7] David Kaye, The Legal Consequences of Illegal Wars, Foreign Affairs, August 29, 2013, https://www.foreignaffairs.com/articles/united-states/2013-08-29/legal-consequences-illegal-wars.

[8] Richard A. Falk, What Future for the UN Charter System of War Prevention?, 97 Am.  J. Int’l L. 590 (2003), http://www.tjsl.edu/slomansonb/9.1_FutureUNWarPrev.pdf.

[9] John C. Yoo, Using Force, 71 U. Chi. L.Rev. 1 (2004), https://www.law.berkeley.edu/files/yoo_using_force.pdf.

[10] Catherine E. Shoichet et al., New ISIS video threatens France, Italy, U.S., CNN (Nov. 19, 2015), http://www.cnn.com/2015/11/18/us/new-york-isis-video-threat/.

[11] Lee Ferran and Rym Momtaz, ISIS Trail of Terror, ABC News (Feb. 23, 2015), http://abcnews.go.com/WN/fullpage/isis-trail-terror-isis-threat-us-25053190

[12] Michael P. Scharf, How the War Against ISIS Changed International Law, 48 Case Western Reserve J. of Int’l L. 1 (2016), http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2741256.

[13] S.C. Res. 2249, U.N.Doc. S/RES/2249 (Nov. 20, 2015), http://www.un.org/en/sc/ctc/docs/2015/N1538413_EN.pdf.

[14] Michael P. Scharf, How the War Against ISIS Changed International Law, 48 Case Western Reserve J. of Int’l L. 1 (2016), http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2741256.