UN Contact Group on Somali Piracy Meeting

Here is a link to a blog post which I wrote recently for Intlawgrrls: http://www.intlawgrrls.com/2012/09/report-from-un-meeting-on-somali-piracy.html#more

On Dependent Independent States: South Sudan

This post has been cross-listed at Intlawgrrls.com. In recent years, several new states have been created: East Timor, Kosovo, and South Sudan, to name a few. While these entities’ statehood may appear unquestionable and almost universally accepted in the global community, their existence poses difficult questions about the contours of statehood and the desirability of supporting statehood for regions which remain heavily dependent on external aid. South Sudan, the most recently created state, illustrates some of these difficult questions. South Sudan, in other words, may be an example of a dependent independent state. South Sudan celebrated its independence a year ago, when its inhabitants voted in a popular referendum to separate from their mother state, Sudan. Sudan was a product of decolonization and of the principle of uti possidetis, whereby colonial powers created independent states throughout the African continent pursuant to pre-existing colonial borders and with little regard of the wishes of local populations. Sudan was doomed from the outset, as its predominantly Arab Muslim inhabitants of the north shared little in common with the predominantly black African southerners. Despite civil wars between the north and the south, Sudan remained a single state for several decades, possibly because of Cold War politics which dictated the continuation of status quo. Post-Cold War and post-9/11, the people of South Sudan ultimately succeeded in garnering enough support in the world community in order to assert their bid for independence and statehood. In the summer of 2011, the South Sudanese held an independence referendum, at which the overwhelming majority of the population voted to separate from Sudan. Thus, the new state of South Sudan was created and subsequently recognized by most world powers. Yet, from the outset, South Sudan has been plagued by existential problems. Border skirmishes threatening to evolve into full warfare have continued between Sudan and South Sudan. Many accuse the Khartoum regime of orchestrating deadly raids on the populations of the southern portion of Sudan, which have resulted in a massive refugee crisis and migrations toward South Sudan. Oil production has been cut off in South Sudan, resulting in hardship for its civilian population. Finally, the newly established government of South Sudan is by all accounts extremely corrupt, preventing the flow of foreign aid from reaching populations of South Sudan most in need of such help. Foreign investors have been turned off by the threat of warfare with Sudan and by the overall state of corruption, and the South Sudanese economic development has been stalled. Under such dire circumstances, South Sudan may survive only with external help: through United Nations Security Council involvement which could prevent war with Sudan; through economic aid by world economic, financial and trade organizations; through foreign investment; through the world powers’ willingness to support the statehood of South Sudan at all costs. South Sudan is thus a dependent independent state, a phenomenon which calls into question the legitimacy of its existence. The four criteria of statehood under international law include territory, government, population, and the capacity to enter into international relations. It is the fourth pillar of statehood which seems difficult to fulfill in the case of South Sudan, as its capacity to engage in any sort of international affairs remains dependent on external aid. Moreover, the phenomenon of dependent independent states sheds light on the (un)desirability of creating and supporting statehood for entities which cannot survive on their own. A better model for such entities could be the creation of a transitional period of shared governance between the independence-seeking entity, its mother state, as well as the United Nations or another international organization. During this type of a transitional period, the independence-seeking entity could strive to develop its own institutions, to promote economic development and to strengthen its borders, so that when it becomes truly independent, it no longer depends on its supporters for the protection of its sovereignty. Sovereignty and statehood typically co-exist and are mutually necessary; the phenomenon of dependent independent states creates artificially sovereign states which do not qualify for statehood under international law. Hopes for a better future for South Sudan remain slim, despite its independence and achieved statehood.

Attorney General Holder on Targeted Killings

Eric Holder, the Attorney General of the United States, recently clarified the United States' policy on targeted killings of American citizens abroad. According to the Attorney General, the targeted killing of a U.S. citizen would be lawful under the following circumstances:

“[A]n operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.”

For the first time ever, the Obama Administration has attempted to clarify legal parameters of the use of force against American citizens in a counter-terrorism operation. While this is a laudable endeavor, many questions remain unanswered, as other scholars have already pointed out. Who in the Administration is supposed to make the determination of which individuals pose such imminent threats? What kind of a review is necessary? What does the concept of "imminent threat" entail? And what does the feasibility of capture imply - would the promise of an otherwise unfriendly foreign government to help in the capture of a wanted suspect suffice?

Another important point to emphasize is that the Attorney General seems to imply that a variant of human rights law applies to the targeted killing of American citizens abroad. The Attorney General stated that the operation would have to be conducted consistently with applicable law of war principles; however, law of war principles do not contain the above-mentioned conditions of imminent threat and non-feasibility of capture. In other words, enemy combatants can be targeted under the laws of war at any time, irrespective of whether they pose an imminent threat and of whether they can be captured easily. On the one hand, it is reassuring to hear that the Attorney General believes that human rights law is applicable to targeted killings. On the other hand, it is disappointing to think that, according to the Attorney General and the Obama Administration, human rights law only applies to targeted killings of American citizens, but not to targeted killings of other countries' nationals. Marko Milanovic on EjilTalk has already made this point, in an excellent blog post. I agree wholeheartedly with Marko: the distinction between American citizens and non-citizens for the purposes of targeted killings is not only morally repugnant but potentially unlawful. Our Constitution, in the 5th Amendment Due Process Clause, states that “no person … shall be deprived of life, liberty, or property, without due process of law.” The Constitution does not state that "citizens" should not be deprived of life, liberty or property without due process of law. And our Bill of Rights fails to make this distinction as well. As Marko has written in the post mentioned above, "Why exactly is Al-Awlaki’s life deserving of more legal protection than (say) Osama bin Laden’s is simply beyond me."

Finally, what is also normatively incomprehensible is the distinction between the possibility of targeting American nations on U.S. soil versus the same kind of targeting outside the U.S. Why would it be lawful to target and kill American citizens when they are found abroad when it would be perfectly unlawful to target and kill the same citizens if they were to be found home? In the United States, it would be illegal to shoot any suspect at point blank, without due process of law. Why such killings should become lawful the minute that the suspect crosses the border to Canada or to Mexico remains a mystery.

New Post on IntLawGrrls

I posted the following on IntLawGrrls:

http://www.intlawgrrls.com/2012/02/syria-serbia-different-countries-same.html

Guantanamo: 10 Years Later

Exactly ten years ago, the first group of detainees arrived at Guantanamo Bay, Cuba. In the wake of 9/11, Donald Rumsfeld referred to them as "the worst of the worst." Some of them were exposed to harsh interrogation techniques, such as waterboarding, the use of stress positions and sleep deprivation in the early days of their confinement. While some have been cleared of enemy combatant status and released, either to their home countries or to third states, some are still at "Gitmo." Why? How can a presumably law-abiding nation, like the United States, justify the indefinite detention of terrorist suspects?
The simple answer is that we are engaged in the so-called "global war on terror." According to this theory, constructed by the Bush administration, 9/11 was an act of war; the United States thus became involved in a global war against terrorism. The parameters of the war are truly global: the battlefield is found wherever the combatants themselves can be located, and the United States can strike in any location where it situates such a combatant. The United States can choose to kill an enemy combatant, and this option has been exercised through drone attacks in Pakistan, and most recently in Yemen, when al-Awlaki, a U.S. citizen suspected of terrorist activity was killed The United States can also choose to detain enemy combatants and bring them either to Guantanamo Bay, or to another location such as the Bagram prison in Afghanistan. Enemy combatants brought to Gitmo can be held until the end of hostility - thus, indefinitely (when does the global war on terror end? presumably never as terrorists will always exist throughout the world......). Because of clever human rights lawyers and their work, which has resulted in Supreme Court cases such as Hamdi, Hamdan and Boumediane, some detainees have successfully challenged their detention at Gitmo in our federal courts. Some of such detainees have been released. However, other detainees, because of newly passed federal laws, have not been able to challenge their detention. Some will be tried in the military commissions, an option inferior to federal court prosecutions but infinitely better than indefinite detention without any access to court. Some will be prosecuted in federal courts. Yet, some of those same detainees may never be released because, despite a court or commission ruling that a detainee is not an enemy combatant, the United States' position is that it does not have to release such detainees because they may nonetheless constitute a threat.
The Obama administration initially opposed this view, and in his first days in office, President Obama signed an executive order to close Guantanamo Bay. The President explored options, such as bringing the alleged terrorists to the United States for trial, but has faced political backlash and tremendous opposition because of security concerns. The current position of the Obama administration is that Gitmo is here to stay. In a recent law, signed by the President, transfers of detainees into the United States for trial are prohibited, while transfers of cleared prisoners to third countries are restricted. The same law, which has been debated hotly on other blogs by experts in national security law (see, e.g., www.opiniojuris.org), reaffirms the presidential authority to detain and hold, without trial, other suspected members of Al Qaeda, Taliban, or other associated forces (read the article here: http://www.cnn.com/2012/01/11/world/analysis-gitmo-ten-years/index.html?hpt=ju_t2). This position by the Obama administration is more than troubling, and it seriously tarnishes the image of the United States as a law-abiding citizen of the world. Let's hope for changes after the forthcoming presidential election, and for a world without Guantanamo Bay.