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.

Prosecuting Somali Pirates in the Seychelles: A Great Idea

I recently blogged on IntlawGrrls about my trip to the Seychelles (click here: http://intlawgrrls.blogspot.com/search/label/Milena%20Sterio). Below, I explore additional issues related to the prosecution of Somali pirates in countries like the Seychelles.

After a week in the Seychelles,
where I attended meetings with the Seychelles’ Attorney General and Supreme
Court judges, I am back in the United
States, and would like to take this opportunity to reflect on some of the legal
issues related to Somali piracy and prosecutions in the Seychelles’ national
courts.
For any nation interested in
prosecuting Somali pirates, the threshold issue is jurisdiction. In other words, if a country wants to
prosecute pirates, it must amend and expand its jurisdictional statute to allow
for such prosecution on the broadest possible basis. The Seychelles has thus revised its national
law to allow for the prosecution of pirates captured on the high seas. This type of universal jurisdiction allows
countries like the Seychelles to prosecute acts of piracy to which they have no
nexus. Many countries, including the
Seychelles before this revision, have jurisdictional statutes that allow for
pirate prosecutions only if the act of piracy is committed in that country’s
territorial sea, a stretch of sea extending 12 nautical miles from the
country’s shore. Thus, acts of piracy
committed outside of such countries’ territorial sea cannot be prosecuted in
those countries’ national courts because of a basic jurisdictional
shortcoming. Mauritius, another island
nation in the Indian Ocean and another potential partner in the global fight
against Somali piracy, has also started tampering with the idea of expanding
its jurisdictional statute to allow for national prosecutions of Somali
pirates. It is unclear however how Mauritius
will revise its statute. Some reports
indicate that Mauritius’ law will only allow for prosecutions of piracy acts
committed in the Mauritius exclusive economic zone, a stretch of sea extending
200 nautical miles from the country’s shore.
This kind of a revision would seriously limit Mauritius’ ability to
prosecute Somali pirates, as acts committed on the high seas would be excluded
from Mauritius’ jurisdictional reach. In
the Seychelles, it appears that jurisdiction will not pose problems, in light
of the new universal jurisdiction statute that this country passed. One issue that remains unclear is whether the
Seychelles’ government will demonstrate an ongoing political willingness to
support piracy prosecutions on a true universal jurisdiction model. In fact, despite the mentioned universal
jurisdiction statute, the Seychelles’ authorities may prove unwilling for
policy reasons to extend their courts to prosecutions of Somali pirates who
have not threatened the Seychelles’ national interests in any way.
Another possible mode of
jurisdiction that countries like the Seychelles may adopt in the future is the
protective principle – a type of jurisdiction that allows for prosecutions of
acts which threaten the national interests of the prosecuting country. While traditionally this mode of jurisdiction
has been used to prosecute offenses such as treason, counterfeiting of national
flags, currency and emblems, and immigration violations, it is possible that
acts of piracy could be conceived of as violating the national interests of
certain countries and thus prosecuted under this model of jurisdiction. The advantage of using the protective principle
may be in the fact that it could allow for the prosecution of acts committed in
preparation of piracy, that do not qualify as piracy itself. For example, certain acts that do not
constitute piracy may nonetheless constitute presumptive offenses, such as
sailing on a skiff with a boarding ladder and weapons. For this type of preparatory act, universal
jurisdiction is of no help because universal jurisdiction statutes only cover
true acts of piracy and do not extend to planning and preparatory offenses. Protective principle jurisdiction, on the
other hand, could be used to cover these kinds of crimes and countries like the
Seychelles may successfully make the argument that the planning of a piratical
act could threaten their national interests, because the act of piracy, even if
committed on the high seas, could potentially be harmful to such countries if
it can be shown that pirates were about to target such countries’ vessels or
nationals or enter such countries’ exclusive economic zone. Using a combination of universal jurisdiction
to cover true acts of piracy with the protective principle to cover preparatory
offenses would enable countries like the Seychelles to prosecute the maximum
number of piracy-related violations occurring on the high seas.
The next issue related to the
prosecution of pirates for countries like the Seychelles is the ability to
prosecute Somali pirates in situations where the latter are detained by the
naval authorities of another country.
Here, the Kenya model of MOU’s which I discussed in my IntLawGrrls post proves useful. The
Seychelles, like Kenya, have thus concluded transfer agreements with the
European Union and the United Kingdom pursuant to which Seychelles has accepted
to prosecute Somali pirates detained by the EU or UK forces on the high
seas. The Seychelles’ Attorney General
has informed us that eleven successful piracy trials have already taken place
in the Seychelles’ courts; in all these cases the pirates had been detained by
the EU/UK forces and transferred to the Seychelles. The pirates have been prosecuted for the
offense of piracy existing under the Seychelles’ domestic criminal law. Moreover, pirates have been prosecuted under
the theory of “common intention,” a mode of joint criminal liability which
allows for combined prosecutions of all pirates involved in a single piracy
incident. This has enabled the Attorney
General to prosecute pirates in groups of ten or eleven, as well as to charge
all those involved in a piracy incident with the same offenses, irrespective of
their role in the incident itself. Thus,
the prosecutors in these cases did not have to bother with proving what exact
role each pirate played in the piracy incident.
Rather, each pirate is charged with the act of piracy itself and each
pirate will potentially be imposed the same criminal sentence. According to the Attorney General, convicted
pirates have received sentences ranging from five to twelve years of
imprisonment, and several other pirates are currently detained and awaiting
trial.
The next issue that countries like
the Seychelles face is prison capacity and the adequacy of detainment
conditions. The Seychelles as well as
Kenya have benefitted from financial assistance by major maritime nations as
well as the United Nations. Thus, in the
Seychelles a new prison wing has been built; this wing is “reserved” for the
detention of Somali pirates and arguably coincides with international detention
standards. This in turn will preempt the
non-refoulement human rights argument, that would prevent countries signatory
to major human rights treaties from transferring pirates to any place where
pirates would be likely mistreated. In
fact, the Seychelles has clearly demonstrated that its prosecutions are fair
and neutral, and that pirates are detained pre- and post-trial in humane
conditions. Capturing nations should not
face non-refoulement type issues when deciding whether to transfer detained
Somali pirates to the Seychelles’ authorities.
Finally, countries like the
Seychelles may be faced with post-detention issues – in other words, once
Somali pirates have finished serving their sentences, they may choose to apply
for political asylum in the Seychelles.
While nobody should be blamed for wanting to live in this tropical
haven, it is reasonable for the Seychelles’ authorities to question the need to
extend their country’s protection to individuals who have committed heinous
offenses such as piracy. It is one thing
to detain Somali pirates for a set number of years, it is quite another to
offer them political asylum and the possibility to freely live in the
Seychelles forever. I would be loath to
discourage countries like the Seychelles from prosecuting Somali pirates, but post-detention
issues remain a complex issue that the Seychelles’ authorities may have to
ponder in the near future.
I look forward to blogging about
Somali piracy in the future, and hope that other countries, like Mauritius,
will follow in the footsteps of the Seychelles and seriously consider opening
their courthouse doors to piracy prosecutions.

Does Libya Have the "Right" To Prosecute Gadhafi's Son?

Luis Moreno-Ocampo, Prosecutor of the International Criminal Court (ICC), announced today that Libya could prosecute Saif al-Islam Gadhafi, son of the recently ousted and killed Libyan dictator Moammar Gadhafi (click here to read the story: http://www.cnn.com/2011/11/23/world/africa/libya-icc/index.html?hpt=wo_c2). Al-Islam, his father's heir
apparent, was captured by the Libyan authorities last weekend. Both Moammar
Gadhafi and his son had been indicted by the ICC on charges of crimes against
humanity earlier this year. Moammar Gadhafi was killed shortly after his
capture, but al-Islam was captured alive. Thus, Moreno-Ocampo originally announced that the ICC would try al-Islam- possibly because this is the only Gadhafi who would face
international justice, and possibly because such a high-profile prosecution
would enhance the legitimacy of the ICC and mark the last grandiose achievement
of the outgoing prosecutor, Moreno-Ocampo, whose term will be expiring at the
end of this year. However, in a stark reversal of position, Moreno-Ocampo announced that Libya had the right to try Gadhafi's son, if it could prove to the ICC judges that it had the capacity to
do so. In fact, Libyans will have to demonstrate to a panel of ICC judges that
their country has a functioning and independent judiciary. If ICC judges confirm that this is true, then al-Islam will face justice in Tripoli instead of at the Hague.
Many may wonder about Moreno-Ocampo's seemingly sudden
change of heart. The ICC prosecutor stated to the media today that Libyans "are proud," and that it would be a "matter of national pride to show that Libyans can do the case."
While this may be true, is Moreno-Ocampo correct in his assessment that Libyans
have the "right" to prosecute Gadhafi's son? Yes, but only if Libyans
can demonstrate a true capacity to conduct a fair, neutral criminal case
against Gadhafi's son. The ICC system functions based on the principle of complementarity
- the idea that national jurisdictions take precedence over international
prosecutions at the Hague, if they (national courts) are willing and able to prosecute
charged defendants. Thus, the ICC should only prosecute in those cases where the concerned state is unwilling and unable to prosecute a defendant. In the case of
al-Islam, the relevant inquiry becomes Libya’s willingness and ability to
prosecute him. While Libya is certainly "willing" to put Gadhafi's son before its judges, it is uncertain if it is "able" to do so. "Ability" in this context refers to the possibility of
conducting a fair and just trial, with impartial judges and the application of reasonable
national or international criminal laws. Under this standard, is Libya truly "able" to prosecute
al-Islam? This is what Libyans will have to prove to ICC judges, and if ICC
judges are satisfied, then arguably Libyans do have the right to prosecute Gadhafi's son.
Is Moreno-Ocampo's decision advantageous for the future of the ICC and its overall
reputation and legitimacy? In the context of Libya, this decision signifies
that any other Gadhafi collaborators caught by the new Libyan authorities could
also be prosecuted in Libya (that is, if ICC judges determine that Libya is
"able" to prosecute Gadhafi’s son), based on the al-Islam precedent. This could mean that the ICC may never get its hands on any Libyan defendants, despite several existing arrest
warrants. If national prosecutions in Libya
are conducted in a fair manner, them the lack of ICC prosecutions may not be
too disadvantageous. If Libyan prosecutions turn out to be a sham, however, then the ICC may appear as yet another international law organ: a player capable of issuing legal orders, but
incapable of enforcing them. And in terms of a global deterrence message to other rogue leaders across the world, a potential ICC prosecution carries significantly more weight than a national one where proceedings may be carried out behind closed doors and where the
international law community may have very little impact. Thus, leaders in countries like Yemen and Syria may not be particularly deterred in their abusive governance by a Libyan prosecution
of Gadhafi's son, especially if such Libyan prosecution is marred by irregularities. If ICC judges grant Libya the right to prosecute Gadhafi's son, and if Libyan prosecution of Gadhafi's son is not
properly conducted, Moreno-Ocampo may forever regret his decision.