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?”

The Third Party Records Doctrine and Privacy in the Digital Age and Its Role in National Security

Everyday that passes the expectation of privacy of individuals diminishes. The newest technological crazes revolve around monitoring our day-to-day activities and maximizing every second we have. From wristwatches that measure your heart rate and let you read email or text messages at the same time, to smart meters installed at our houses collecting minute-by-minute data about energy consumption to transmit it back to energy companies for more accurate billing.[1] Everywhere we go and in everything we do there seems to no longer be a way to avoid transmitting some our most personal and private details of our life to a third party through the use of technology. In taking into account this reality it’s hard to accept the fact that just by making use of this existing technology we’ve inadvertently renounced to our privacy rights over some of our most personal information that was never intended to be public. Continue reading “The Third Party Records Doctrine and Privacy in the Digital Age and Its Role in National Security”

Supreme Court Approves Change to Rule 41 Search and Seizure Warrants for Electronic Property

On Thursday, April 28, Chief Justice John Roberts submitted to Congress, the amendments to the Federal Rules of Criminal Procedure that have been adopted by the Supreme Court.[1] The Supreme Court amended Rule 41(b), governing ‘Search and Seizure’ by expanding the scope of venue in which a warrant could apply.[2] Under certain circumstances, a federal judge could issue a warrant that would allow law enforcement to hack into a computer that may be located outside the district in which the warrant is being sought.[3] The rule states: Continue reading “Supreme Court Approves Change to Rule 41 Search and Seizure Warrants for Electronic Property”

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.