The Volokh Conspiracy

The credibility of NGOs like Human Rights Watch depends on their being above and apart from the conflicts they monitor – to not take sides. Human Rights Watch has been criticized by many, including its founder, for giving up all objectivity an adopting an anti-Israel campaign.

Their grudge against Israel has been clear for a while, and David Bernstein has written about it frequently here.

Now, we find evidence of direct personal animus. A news story reveals a private Facebook group whose members include a medley European journalists, NGO officials, and far-left activists. Recently the group turned to discussing an Israeli government report that the famous killing of a Palestinian boy at the start of the Second Intifida was in fact staged. Not only was he not shot by Israel, as much prior evidence suggested, he appears not to have been killed at all. (It would not be the last time Palestinians elaborately staged deaths for PR purposes.)

The issue is not the IDF report, but the comments made about it by Peter Bouckaert, HRW’s Emergencies Director (responsible for civilians in wartime, according to his twitter page). He wrote: “Typical IDF lies. As usual, it takes them a long time to really build up the falsehood.”

He goes on the complain that the New York Times coverage of the Israeli report will be used by supporters of Israel.

I previously criticized HRW for releasing reports on alleged Israeli crimes without waiting for the IDF’s comments - now we know: why wait for a “typical lies” that just build up the more time they get? Seriously, HRW should reveal what reports the “emergencies director” was involved in writing.

Academic writing on human rights and international law often treats groups like HRW as custodians of the truth, and accepts their claims without much further scrutiny. That practice is methodologically unsound.

UPDATE: Buockaert is apparently responsible for the HRW report on the 2nd Lebanon War, entitled “Why the Died,” which accuses Israel of war crimes largely based on relies on (favorable) credibility judgements regarding Lebanese testimony about whether certain targets were Hezbollah sites. The report also admits significant errors in earlier report (that doesn’t make them lies!).

In addition to the IRS’s particular interest in right-wing groups focussed on domestic policy, it has taken an unusual interest in right-wing pro-Israel groups. (I am friends with the leader of the group written about in the link.)

One major question raised by the IRS scandal is where these ideas came from. At least as far as Jewish groups go, the IRS scrutiny is not a fluke. That is not to suggest it was ordered by the White House – that is highly unlikely. At the same time, it certainly does not come out of the blue. The past several years have seen a concerted campaign in the mainstream liberal press to bring the IRS down upon certain pro-Israel groups, particularly those that support activities in the West Bank (or the Territories Formerly Occupied By Jordan).

For example, in 2009 David Ignatius had a story in the Washington Post, A Tax Break Fuels Middle East Friction. “Critics of Israeli settlements question why American taxpayers are supporting indirectly, through the exempt contributions, a process that the government condemns,” he wrote. The Guardian in 2009 also had a piece calling for IRS action.

In 2010, the New York Times continued the theme with a massive, expose-style front page story, which concluded that while such tax breaks do not seem to be exactly illegal, it creates :a surprising juxtaposition: As the American government seeks to end the four-decade Jewish settlement enterprise and foster a Palestinian state in the West Bank, the American Treasury helps sustain the settlements through tax breaks on donations to support them.” The article then tried to raise questions about whether such groups really satisfied U.S. tax-deductible requirements, suggesting the IRS should look into them. The activities the supported, the Times article suggests, were illegal and extremist.

Picking up the gauntlet, J Street called on the IRS to “probe” groups that support settlements, despite there being no apparent violation of tax laws involved.

And last year, an op-ed in the Times by Peter Beinart argued that “we should push to end Internal Revenue Service policies that allow Americans to make tax-deductible gifts to settler charities.”

This is just a sampling: the notion that right wing Jewish groups should be “probed” by the IRS because they do not line up with President Obama’s (former?) absolutist anti-settlement policy is not a new one. All the organs of intelligent opinion agreed that some generally right wing Jewish groups need to be dealt with by the IRS because they contradict government policy, not because of any evidence of tax fraud. And surely IRS bosses read the Post and the Times; it may even be their “absolute truth” as Times editor Jill Abramson memorably put it.

It would be interesting to find out whether the particular groups mentioned in these articles received any unusual requests from the IRS: I’d love to know either way.

Of course, there may be no direct connection between the campaign for such audits, and the action the IRS in fact took. But nor can one say the IRS action came out of nowhere, was some random frolic and detour.

Similarly, the action against Tea Party groups is not surprising. If one reads that they are racist, dangerous groups, then one might think their tax status is worth looking into.

This morning the U.S. Court of Appeals for the Sixth Circuit decided Romeike v. Holder.  Judge Sutton’s opinion for the court begins:

Uwe and Hannelore Romeike have five children, ages twelve, eleven, nine, seven and two, at least at the time this dispute began. Rather than send their children to the local public schools, they would prefer to teach them at home, largely for religious reasons. The powers that be refused to let them do so and prosecuted them for truancy when they disobeyed orders to return the children to school. Had the Romeikes lived in America at the time, they would have had a lot of legal authority to work with in countering the prosecution. See Wisconsin v. Yoder, 406 U.S. 205, 213–14 (1972); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S. 390, 400–01 (1923).

But the Romeikes lived in Germany when this dispute began. When the Romeikes became fed up with Germany’s ban on homeschooling and when their prosecution for failure to follow the law led to increasingly burdensome fines, they came to this country with the hope of obtaining asylum. Congress might have written the immigration laws to grant a safe haven to people living elsewhere in the world who face government strictures that the United States Constitution prohibits. But it did not. The relevant legislation applies only to those who have a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). There is a difference between the persecution of a discrete group and the prosecution of those who violate a generally applicable law. As the Board of Immigration Appeals permissibly found, the German authorities have not singled out the Romeikes in particular or homeschoolers in general for persecution. As a result, we must deny the Romeikes’ petition for review and, with it, their applications for asylum.

Judge Rogers also adds this brief concurrence:

At one point in the petitioners’ brief, they assert that “the sole question before this Court is whether Germany is violating binding norms of international law through its treatment of homeschoolers.” Petitioners’ Br. 37. Our role, however, is not that of an international court adjudicating Germany’s obligations to other countries in respect of its own citizens. Instead we sit as a court of the United States, enforcing statutes that implement some of the international obligations of the United States to other countries in respect of asylum applicants. As explained by the majority opinion, those obligations are fully met in this case.

I wrote yesterday about the French Court of Appeals decision holding that French train companies did not violate international law (and particularly the Fourth Geneva Convention) by building a light rail system in Jerusalem, including areas occupied by Jordan before 1967.

The case, PLO v. Alstom, is a perfect foreign coda to the Supreme Court’s decision in Kiobel, as it also deals with suits for extraterritorial conduct of multinational corporations (though without the universal jurisdiction twist of Kiobel). It illustrates how the efforts of some American courts to implement international law norms through civil damages remedies is in fact a rather parochial exercise detached from international practice.

1) Most significantly, the Court found that international law does not create liability for corporations. This accords with the view of the Second Circuit in Kiobel – corporate liability was the issue on which cert in Kiobel had been granted, though the case was ultimately decided on extraterritorially grounds. Many who favored corporate liability argued that on this issue, courts should apply not international law, but rather federal common law. In future ATS litigation against companies with some U.S. nexus, the PLO v. Alstom decision will not make plaintiffs’ work easier.

2) The Versailles court also seemed to take a narrow view of aiding-and-abetting liability. The issue is hard to separate from the corporate liability issue, but the Court basically found that even if Israel’s conduct violated international law, the corporation does not incur liability for its involvement.

3) Ironically, the best examples of corporate liability under international law came from ATS cases (where courts had upheld such liability after having been assured of its existence outside ATS cases). Yet the French court brushed off precedents under the ATS by noting that they were merely applications of a “domestic statute” and thus not really international law. There goes global judicial dialogue – or perhaps they heard that the ATS was just federal common law!

4) The Court was pretty dismissive of “soft law” – international guidelines, best practices statements, and so forth, in creating or defining customary norms.

5) I argued recently that the U.S. is particularly attractive to human rights plaintiffs for the same reasons it is attractive to all other plaintiffs, and this cases illustrates this well. Because Alstom was the prevailing party, the Court required Palestinian plaintiffs to cover 60,000 Euros of the defendants’ costs. You don’t get that in a dismissed ATS case.

In an important but largely ignored case, a French Court of Appeals in Versailles ruled last week that construction of a light rail system in the Israeli-controlled West Bank by a French company does not violate international law. In doing so, the court sided with many of the arguments long made against the blanket application of the relevant provisions of the Geneva Conventions to Israeli settlements. National courts rarely if ever address such issues, and thus the decision is important both for its rarity and for what it says.

In this post, I’ll address issues relevant to the substance – Israel’s presence in the West Bank. In the next post I’ll deal with the “Kiobel” issues raised by the case – corporate liability, the value of American ATS cases, and so forth. I should note at the outset that what follows is based on a rough translation of the opinion and my vague French; I would be grateful for corrections on matters of language that I have misapprehended. I venture forward because it is an important decision that deserves attention, yet has been met by complete silence by international legal scholars.

The Jerusalem Light Rail, which began running last year after a long period of construction, links the Western part of the city with the parts occupied by Jordan prior to and annexed by Israel after the 1967 War. The project was widely criticized by pro-Palestinian groups, as was the participation of French rail companies in the project. Along with a variety of political pressure and boycott activities, a Palestinian group sued the French-based multinational conglomerate Alstom Transport for its role in in the project. The case was dismissed below in 2011, and the Court of Appeals upheld the decision last week.

Crucially, the Court held that only the Government of Israel, and not private parties, can violate the relevant provisions of the Geneva Conventions. The arguments that Israeli communities in the West Bank violate international law start with Art. 49(6) of the Fourth Geneva Convention, which provides that “The Occupying Power shall not deport or transfer its civilian population into the territory it occupies.” The provision was also relied on heavily in the lawsuit. The Court ruled that 49(6) only speaks to and applies to action by the Israeli government (“the Occupying power”), and does not regulate Alton’s activities in the occupied territory.

This is an extraordinarily important holding in light of the decades old-debate about the meaning of 49(6) in the context of Israeli civilian migration into the West Bank. It is in direct opposition to the political and international law position on settlements. In the standard narrative, any migration of Israeli Jews past the Green Line, or the expansion of their residences and communities once there, is a war crime. Thus when private citizens decides to buy or build a house across the Green Line, or even expand an existing one, it is a war crime.

Moreover, Israeli citizens who migrate to the West Bank are often said to be guilty of war crimes themselves as aiders-and-abettors. The Versailles decision would seem to reject such a position.

This conventional reading of 49(6) as generally banning Jewish settlements is disconnected from the text, which only speaks of “transfers” carried out by the Government. Some scholars, including myself, have long maintained that private movement of persons is in no way covered by 49(6), and the Court apparently adopts this position (though I am unclear how much of a role domestic legal principles played). Now one might say the government is always “involved” – roads, security, zoning, etc., but ubiquitous “background” roles do not trigger the state action doctrine in U.S. constitutional law, and it is not clear why they would under international law. (On the other hand, if one gets a package bus/light rail ticket, it would be an unusual literal case of “transfer” into occupied territory.)

Indeed, the French case would be a strong one for inferring governmental role, since the defendant worked under contract with Israeli governmental entities. My understanding of the Court’s opinion is a little fuzzy here, but it seems they say contractual privity is not enough to trigger 49(6) either. This would certainly make it inapplicable to the vast majority of Israeli settlers (not all, necessarily, since 49(6) is ultimately a case-by-by-case factual question.

The Court goes on the reject the notion that the relevant norms have become customary or jus cogens and apply without the particular textual restrictions of 49(6).

Israel’s critics have long claimed that “everyone agrees” that all “settlements” (a term referring to all Israeli activity in the West Bank, at least that benefits Jews) clearly violates international law, and that only Israeli apologists could believe the arguments to the contrary. I assume the Versailles Court of Appeals won’t be accused of being unduly sympathetic to the Jewish State.

Indeed, many might share my surprise on such a decision coming from a European court, especially given the supposed uniformity of views on the underlying legal issues. Perhaps two factors may explain the surprising decision: this is not an international court, but an ordinary municipal one, and it was an important French industrial concern, rather than Israel, in the dock. International lawyers may what could positively be described as professional or scientific knowledge of the matter, or more cynically as guild orthodoxy. Judges unversed in these verities might see things differently. And of course, here international law is being used against important and powerful domestic interests.

The plaintiffs could still appeal to the Cour de Casssation, which however is not obligated to hear the appeal.

[Cross-posted on OpinioJuris.]

Alongside the Health Care Act decision, Kiobel is an example of the professoriate failing to predict the issues that would be taken seriously by the Court both on substance and style. When the Second and Ninth Circuit began questioning “foreign cubed” suits a few years ago, the great majority of scholars dismissed such claims as entirely spurious. The conventional wisdom was very much on the side of universal jurisdiction over corporate human rights abuses. Indeed, such cases had been around for a few decades without much controversy over the universal jurisdiction aspect per se.

Most surprising about Kiobel is the Court’s unanimity. Everyone, including myself, predicted a decision closely divided on ideological lines. Yet ll nine justices seem entirely on board with ending multinational corporate suits. (While Justice Breyer’s concurrence would leave room for Filartiga-style suits where the defendant resides in the U.S., such cases against individuals have largely fallen out of favor with plaintiffs’ lawyers.) The misapprehension of the vote of course relates back to the merits. Many scholars thought the foreign cubed issue a conservative invention to roll back human rights litigation. That position is now hard to maintain.

(And: thanks to Instapundit for linking to the new policy essay by Matthew Waxman and me from the Hoover Institution, referenced at the end of this post, Law and Ethics for Autonomous Weapon Systems – thanks Glenn!)

Last November, two documents appeared within a few days of each other, each addressing the emerging legal and policy issues of autonomous weapon systems – and taking strongly incompatible, indeed opposite, approaches.  One was from Human Rights Watch, whose report, Losing Our Humanity: The Case Against Killer Robots, made a sweeping, preemptive, provocative call for an international treaty ban on the use, production, and development of what it defined as “fully autonomous weapons” and dubbed “Killer Robots.”  Human Rights Watch has followed that up with a public campaign for signatures on a petition supporting a ban, as well as a number of publicity initiatives that (I think I can say pretty neutrally) seem as much drawn from sci-fi and pop culture as anything.  It plans to launch this global campaign at an event at the House of Commons in London later in April.

The other was the Department of Defense Directive, “Autonomy in Weapon Systems” (3000.09, November 21, 2012).  The Directive establishes DOD policy and “assigns responsibilities for the development and use of autonomous and semi-autonomous functions in weapon systems … [and] establishes guidelines designed to minimize the probability and consequences of failures in autonomous and semi-autonomous weapon systems.”

By contrast to the sweeping, preemptive treaty ban approach embraced by HRW, the DOD Directive calls for a review and regulatory process – in part an administrative expansion of the existing legal weapons review process within DOD, but reaching back to the very beginning of the research and development process.  In part it aims to ensure that whatever level of autonomy a weapon system might have, and in whatever component, the autonomous function is intentional and not inadvertent, and has been subjected to design, operational, and legal review to ensure that it both complies with the laws of war in the operational environment for which it is intended – and will actually work in that operational environment as advertised.  (The DOD Directive is not very long, and makes the most sense, if you are looking for an introduction into DOD’s conceptual approach, read against the background of a briefing paper issued earlier, in July 2012, by DOD’s Defense Science Board, The Role of Autonomy in DOD Systems.)

In essence, HRW seeks to ban autonomous weapon systems, rooting a ban on autonomous lethal targeting by machine per se in its interpretation of existing IHL, while calling for new affirmative treaty law specifically to codify it. By contrast, DOD adopts a regulatory approach grounded in existing processes and law of weapons and weapons reviews.  Michael Schmitt and Jeffrey Thurnher offer the basic legal position underlying DOD’s approach in a new article forthcoming in Harvard National Security Journal, “‘Out of the Loop’: Autonomous Weapon Systems and the Law of Armed Conflict.” They say that autonomous weapon systems are not per se illegal under the law of weapons, and that their legality or restriction on their lawful use in any particular operational environment depends upon the usual principles of targeting law. There will be machine systems that will never be lawful for use in some operational environments or even in any operational environment – but maybe some that will.

II

I think Schmitt and Thurnher have it right as a legal matter – and quite clearly so – but there are important dissenting voices.  A different view is offered by University of Miami’s Markus Wagner in, for example,“Autonomy in the Battlespace: Independently Operating Weapon Systems and the Law of Armed Conflict” (chapter in International Humanitarian Law and the Changing Technology of War, 2012).   New School for Social Research professor Peter Asaro has offered a reading of Protocol I and other laws of armed conflict treaties aiming to show that human beings are assumed to be present as moral agents engaged in targeting in these texts (forthcoming special section of the International Review of the Red Cross). Asaro is careful to hold out only that this interpretation is implicit, rather than explicit – a thoughtful and creative reading, though not finally one that persuades the hard-hearted lex lata lawyer in me.  (Asaro is not a lawyer, but a “philosopher of technology,” thus establishing himself as having the Coolest of Jobs, and also co-founder of an organization that has been calling for a ban for several years; Peter and I have cordially disagreed at several academic discussions, most recently at the outstanding WeRobot 2013 conference at Stanford Law School earlier this week.)

A debate over autonomous weapon systems is thus underway in academic law and policy – and in the Real World.  It promises to heat up considerably. Much of the debate (as Peter’s and my exchange at the WeRobot 2013 conference suggests) goes to what one believes is the bedrock moral principle (and which, if true, ought to be embraced as law) for targeting and weapons.  Is it per se immoral for a human being ever to be targeted autonomously by a machine that (as “full autonomy” is defined by DOD) has no human being “in” or “on” the loop, either in target selection or engagement with the target?  Is a human being essential to those two actions – target selection and target engagement – and is the absence of a human being fatal to its morality, irrespective of how good or how bad the machine does at targeting only what it ought to and minimizing collateral harms? Peter takes the position that the human being is essential; my position is that the bottom-level moral principle at issue here is not whether it is a human or not a human, but whether whatever does the targeting is able to comply with the requirements of the laws of war.  The “package” is simple an incident of nature, contingent, and not morally controlling.

Peter’s position, not mine, is the one taken by a number of very smart ethicists and philosophers, including, for example, Wendell Wallach, who describes a machine taking such a lethal decision “mala in se.“ University of Sheffield computer science professor Noel Sharkey (the well-known public commentator on these issues, with whom I’ve had the pleasure of friendly disagreement before and no doubt will again) also takes this position, though he also takes others that are factual in nature.  But on this moral argument, the requirement of a human being is the end of the moral chain, so to speak.  I don’t agree with it, but I understand the arguments driving it.  HRW’s report, by contrast, launches into quite a different kind of argument, and a much more problematic one.  Though it appears to accept the buck-stopping moral position, it also and mostly argues strenuously for two factual claims.

The first is that, no matter how much time goes by, as a matter of fact, machine intelligence will never be adequate to the moral decision-making that lethal targeting requires.  To which, of course, the proper response is, fifty years?  A hundred years? Two hundred years?  Maybe HRW is right.  But how does it know and what gives being a human rights monitor any special ability to see the future of technology – and tell us what to ban and not ban today, in order to ensure that a future that it purports to see does not come about?  Not all of us are quite as certain about where technology might go and what it might yield – and we are quite unwilling, on HRW’s say-so, to give up the possible future social gains (including reducing harm on the battlefield) that such technologies might produce along the way because HRW foresees a future somewhere between a Philip K. Dick novel and Terminator.  (Or as a friend put it, knowing Ken co-blogs with Ilya, “So who sailed from the Grey Havens and gave HRW a palantir? -ed.)

The second is that, no matter what technological developments take place, machines could never offer the affective and emotional qualities that targeting decisions in war do and properly should require on the battlefield – sympathy, empathy, compassion. Again, this is a factual claim about the future of machine intelligence – a prediction extending into the future, forever – that leaves one to ask, how does HRW claim to know any such thing?  And it’s a particularly peculiar claim coming from a human rights monitor whose bread and butter in armed conflict reporting not infrequently involves things soldiers did on the battlefield because of fear, desire for vengeance, simple bad judgment from cold and hunger, and the limits of human cognition in the fog of war – a conspicuous, yet all-too-human, absence of empathy and compassion.  One wonders why HRW didn’t just as easily focus on those less praise-worthy human emotions and at least entertain the possibility that a machine that has no emotions either way, but which might be programmed to behave in ways that respect the humanity of non-combatants and, further, might be programmed to simply sacrifice itself in order to spare non-combatants, might after all said and done be a very good thing.

III

In conversations with HRW, I’ve been told, and encouraged to note publicly, that it does not want its report and call for a ban to be understood in extreme ways.  I’m happy to do that, with one caveat.  So, for example, it does not mean everything one might read its call for a ban on “development” of fully autonomous weapons to say.  It also appears to want to find a way not to be interpreted as declaring the future history of technology, though that appears more difficult, given the language of the report.  My (genuine) advice to HRW on this point (though not my view, of course) is to say that it’s not predicting where technology will and won’t go, as a matter of necessity.  Instead, it’s saying that, in its judgment, it is overwhelmingly likely that all these bad scenarios would emerge over the long run – and that these scenarios are sufficiently bad to justify banning all these many things today. Continue reading ‘The Debate About to Heat Up Over HRW’s Call to Ban “Killer Robots,” AKA Autonomous Weapon Systems’ »

Co-blogger Ken Anderson praises Joan of Arc’s lengthy 1429 declaration of war against the English. I prefer the more concise approach adopted by Sviatoslav I, the 10th century Prince of Kiev: “Иду на вы.” I would loosely translate this as “I’m coming to get you.” Admirably to the point. International law mavens could learn a valuable lesson from Sviatoslav’s clarity and brevity.

Wikipedia claims that “Иду на вы” (the traditional Russian rendering of Sviatoslav’s statement) is not an entirely accurate modern Russian translation of the original Old East Slavic. But even the slightly wordier translation they advocate is a model of word economy compared to most modern international law documents.

A district court recently ruled that Congress’s power to “Define and Punish... Felonies on the High Seas” extends beyond the high seas, to conduct entirely within a foreign country (on dry land), with no U.S. nexus. The case is U.S. v. Carvajal, 2013 WL 619890 (Feb. 20, 2013).

The Maritime Drug Law Enforcement Act (MDLEA) allows for the projection of U.S. narcotics law to foreign vessels on the high seas. Routinely the law is applied to the crews of vessels captured on the high seas near Latin American countries with no evidence they were headed our shores. I have argued in a series of papers that such universal jurisdiction over drug trafficking exceeds Congress’s powers under the Felonies power, which presumes a U.S. nexus. While the 11th Circuit has not been swayed from its longstanding prior precedent by these views, other federal judges have increasingly endorsed them.

Yet last November, the 11th Circuit in U.S. v. Bellaizac-Hurtado limited its prior cases by ruling that the Felonies Clause would not apply to conduct in foreign territorial waters, which are not part of the “high seas.”

Caravajal involved a defendant even further from international waters than those in Bellaizac-Hurtado: all of his activity took place in Columbia. But he was charged with conspiracy for a long-standing business of sending vessels through international waters.

The District Court acknowledged the novelty of applying the Felonies Clause to activities in foreign territory. But it concluded that the Felonies Clause reached such activity because the defendant’s co-conspirators committed acts on the high seas. Thus the defendant, who never entered the high seas, could be charged as if he had. (I do agree with the district judge that as far as the vessel goes, it is enough that it entered the high seas on the particular voyage, and it need not be arrested there.)

The Court’s reasoning simply restates the substantive theory of conspiracy liability. It does not explain why conspiracy principles can be used to expand the jurisdictional bounds of a constitutional provision. That is, what gives Congress the power to project federal conspiracy law past the high seas and into the foreign territory to conduct without a U.S. nexus.

Federal criminal law’s broad notion of conspiracy cannot necessarily be read back into the Constitution. This is particularly true when the constitutional provision has a specific jurisdictional provision – “the high seas.” The Framers surely understood that a piratical or felonious act on the high seas could be planned abroad, but chose to define jurisdiction by the locus of the defendant’s conduct.

Put differently, Congress’s ability to “Define” felonies is limited to those on the “high seas.” If Congress can define felonies on land as being connected to the high seas by conspiracy principles, it can presumably go even further – since conspiracy has no special constitutional status. Thus could it define conduct in a foreign country, with no U.S. nexus, that has some effect on the high seas (perhaps affects shipping) as a crime under the clause?

The Carvajal opinion does address my work on the Define and Punish Clause, which it declines to follow because while it “reflects extensive research, it ultimately simply reflects an “opinion of what the law ought to be, not what it is.” Given that my analytic approach the Clause is primarily originalist, I am not sure what this means. Certainly the 11th Circuit has not followed the broader implications of the understanding I develop, though it did accept the narrower ones regarding territorial waters. But the 11th Circuit already had a lot of water under the bow on application of the MDLEA to vessels on the high seas, which it could not easily disregard. Carvajal, however, is a case of first impression, and not in the 11th Circuit.

Indeed, Carvajal is in serious tension with another recent case in the D.C. District, U.S. v. Ali, 885 F.Supp.2d 17 (July 13, 2012), where another judge reached the opposite conclusion recently as to whether land-based conspiracy could be prosecuted as a high seas piracy. That case turned principally on the definition of piracy in international law, but also explicitly invoked constitutional avoidance principles, suggesting that federal conspiracy principles do not get read into the “Piracy on the High Seas” power. The Court in Ali also relied heavily on the Charming Betsy cannon, finding that it would violate international law to apply U.S. law to such conduct. It would equally violate international law principles of jurisdiction to apply U.S. law to a drug conspiracy in a foreign country – but the MDLEA explicitly rules out international law as a defense.

It is a neat coincidence that such cases of first impression concerning conspiracy and the High Seas crimes would arise within a few months of each other. And of course, all these extraterritorial issues are being decided in the shadow of Kiobel, where the distinction between the high seas and foreign territory has been argued quite sharply.

I have put up a new working paper on SSRN, entitled Jurisdiction Over Israeli Settlement Activity in the International Criminal Court. It is not about the legality of settlements. Rather, it is about whether repeated and growing threats by Palestine and its supporters to make an international case out of it are consistent with the admissibility requirements of the ICC. I welcome substantive comments (as well as inquiries from law review editors).

Here is the abstract:

In the wake of the U.N. General Assembly’s recent recognition of Palestinian statehood, the Palestinian government has made clear its intention to accept the jurisdiction of the International Criminal Court (ICC), where it could challenge the legality of Israeli settlements. This Article explores the previously unexamined jurisdictional hurdles for such a case. (To focus on the jurisdictional issues, the Article assumes for the sake of argument the validity on the merits of the legal claims against the settlements.)

First, the ICC can only consider situations “on the territory” of Palestine. Yet the scope of that territory is undefined. An “occupation” can arise even in an area that is not the territory of any state – but ICC jurisdiction does not extend there. Thus even if Israel is an occupying power throughout the West Bank for the purposes of substantive humanitarian law, this does not establish that settlement activity occurs “on the territory” of Palestine. Moreover, the ICC lacks the power to determine the boundaries of states, and certainly of non-member states. Moreover, the Oslo Accords give Israel exclusive criminal jurisdiction over Israelis in the West Bank. Palestine cannot delegate to the ICC territorial jurisdiction that it does not possess.

Second, the ICC only takes situations of particular “gravity.” Yet settlements are not a “grave breach” of the Geneva Conventions. No international criminal tribunal has ever prosecuted non-grave breaches. The ICC’s gravity measure involves the number of people killed; for settlements it would be zero. Indeed, the ICC prosecutor triages situations by the numbers of victims; settlements do not appear to have direct individual victims. Finally, the ICC would at most only have jurisdiction over settlement activity from the date of Palestine’s acceptance of jurisdiction. Settlement activity in this time frame would not immediately cross the Court’s gravity threshold.

The impact of these issues goes beyond a possible settlements case. The controversy over a referral of Israel, a non-member state, raises important questions about the meaning of the ICC Statute. These have great importance for other non-member states, such as the United States. They also demonstrate the extent to which major aspects of the ICC Statute remain vague and undefined.

A group of armed men attack a U.S. warship on the high seas. Piracy under international law? Yesterday, the U.S. District Court in Richmond convicted a group of Somalis for an attack on the U.S.S. Ashland (such incidents are not uncommon). Boy these guys were dumb – what were they thinking?

Of course, if Judge Kozinski’s piracy opinion were wrong, the prosecutors would actually have to prove what they were thinking as an element of the case. That is, attacking a warship is the kind of thing one would ordinarily due for political purposes, so unless one actually takes a purely subjective approach to “private ends” (which I think obviously and entirely unworkable), this prosecution would be difficult under the “private isn’t political” rule.

The defendants argued they were distressed mariners just trying to get the Ashland’s attention. They should have said they were Somali militants protesting the unfairness of global wealth distributions. (The Stolen Seas movie that features me also features Noam Chomsky putting the Somali pirates in some such a light.)

These guys were the ones whose case was originally thrown out by a district judge who read international law very narrowly as not covering attempts, before the Fourth Circuit reversed (citing me...).

Also yesterday, Nigerian pirates released some hostages. The Ashland case is really a throwback; Somali piracy is largley (at least until the sequester kicks in). However, a new and much more violent piracy problem has emerged in the Gulf of Guinea, involving attacks on oil industry there. Thus far the attackers have invariably been described as pirates by the the UN, IMO, and the world at large as far as I known.

Yet the Nigerian pirate attacks are an operation of MEND (Movement for the Emancipation of the Niger Delta), who has carried on attacks for years on and off the high-seas. Its generally thought of as a political group. A big part of MEND’s “politics” is the redistrubtion of oil wealth in favor of local interests. They are treated as pirates (though I don’t know of any foreign prosecutions yet). Thankfully not much turns on their precise state of mind, or the imponderable line between politics and theft.

Piracy is a universal jurisdiction crime. We do not like to have jurisdictional considerations turn on vague, subjective factors – especially sensitive things like universal jurisdiction. Some might say the “political” exemption is for only “purely” political motives, but given the ubiquity of mixed motives, I have no idea how one excludes the possibility of non-political motives, or even how one defined “political” in a world where money and its distribution is a major political issue.

A look at the legislative history does not support the notion of a subjective, political exemption for politically-motivated pirates.

Kevin Jon Heller’s argument that political motives are excluded from piracy rests less on the Law of the Sea Treaty itself than on its intellectual predecessors, the League of Nations Report of 1927 and the Harvard Draft Convention of 1932. The ILC Commentary to the Law of Sea Treaty specifically endorses the latter, saying that “in general” it agrees with the Draft Convention (it does not provide such deference to the former.

The Harvard Draft supports the lack of any subjective, motive-based inquiry. Here is exactly what it says in its commentary on the “private ends” part of the definition of piracy:

[A]lthough it is true that the typical pirate of fiction and tradition was an indiscriminative plunderer, expediency and not traditional epithets or the fancy of traditional concepts should direct the definition of the common jurisdiction over piracy, and every consideration of certainty in prosecution and of assured protection in places outside the territory of all states argues that the jurisdiction to seize and to punish a robber or a killer for private ends should not depend on whether the offender had by acts or words displayed an intent to plunder or slay only once or oftener, or on whether he intended to attack only the
citizens of certain states and their ships and other property, or to prey on the people and commerce of all nations indiscriminately. Such matters of collateral intent of an offender (often uncertain and indistinct) and of his transactions other than those involved in the case at hand, are very unsatisfactory as elements in a basis of state jurisdiction.

On the other hand, the language in the Draft that Prof. Heller says best supports his position does not come from the commentary on “private ends,” or indeed from the definition of piracy at all (contained in Art. 3). Rather, it comes from the commentary on Art. 14, which is not defining, or even discussing piracy at all, but rather the authority of states with traditional jurisdiction to apply non-piracy law.

Having looked further through the Committee’s work, I see no hint of an exclusion of political motives, and several pieces of evidence suggesting it was included.

The Commission’s final Commentary to the definition of piracy explained: “The intention to rob (animus furandi) is not required. Acts of piracy may be prompted by feelings of hatred or revenge, and not merely by the desire for gain.” The argument for Sea Shepherd is that they are not motivated by negative feelings, but by positive ones. Of course “hatred and revenge” are only illustrative – and quite typical of political violence. The language about “hatred and revenge” borrows from the League of Nations Committee of Experts for the Progressive Codification of International Law had to say in 1927. That document goes on the exclude “purely political motives” from piracy. Notably the ILC Commentary does not reference or endorse that second limitation. Quoting part of the 1927 report but not other relevant parts suggests the exclusion of the latter.

Let us now consider the proceedings leading up to the final text. At the May 8, 1956 meeting, Sir Gerald Fitzmaurice and others expressed some concern that “merchant vessels” could in wartime “seeking to acquire, quite inadmissibly, the status of warships by hoisting a naval flag in order to board, capture, or sink other vessels, after which they would revert to their former status of merchant ships.” Thus the general immunity of warships, and their exemption from piracy, had to strictly be limited to real, regularly constituted warships. The relevant point for our purpose is that if political purposes were enough to create immunity for a private vessels, a merchant vessel would have no need to redress itself to raid enemy commerce in wartime; such acts are by definition political. Yet in the view that piracy is the lack of public status, such concerns make sense.

The key aspect of private ends is the lack of public authority As Fitzmaurice commented at the May 9, 1956 meeting of the Commission: “The Commission’s conception had been that piracy was essentially an act committed by a ship’s company or persons acting on their own authority, thereby excluding warships.” He thus supported extending the piracy exemption to government ships other than war ships, since they also operated under public authority.

On a side note, I should add that I’m quite surprised and amused by the intensity of feeling on this issue. I wish there was as much sympathy for Ali, a guy who may spend his life in federal prison for something that isn’t piracy.) I must admit, I don’t have a TV, and do not know anything about the heroic depiction of Sea Shepherd. But Ali got a very sympathetic turn in Stolen Seas.

Judge Kozinski has gotten considerable criticism from liberals for ruling that Sea Shepherd is involved in piracy under international law. A subsequent post will provide additional support for the decision on the merits. Here, I’d like to look at the big picture and suggest that liberals should be thanking Kozinski: a contrary ruling would have torpedoed two liberal causes – the U.S. ratification of the Law of the Sea treaty, and a broad construction of the Alien Tort Statute.

A ruling that politically motivated attacks are exempt from piracy would certainly add weight to conservative skepticism of the Law of the Sea Treaty. The root of this skepticism is a concern that the meaning of international legal instruments is actually quite uncertain, and unforeseen vagaries will later be used against the U.S., which will have no monopoly on interpreting the law that applies to it. The retort is that such fears are paranoid; the treaty is clear, by now well-worn, and pretty harmless.

Well if the piracy provisions – which have not been the ones causing conservative anxiety – are actually highly disputed in their meaning on basic definitional points, there may be more to worry about than previously thought. Lets say the meaning of “private ends” is in fact undefined, with both interpretations open. The U.S.’s ability to treat maritime terrorists as international pirates will thus probably depend on what a bunch of professors and European foreign ministry lawyers say “private ends” means.

Again, if this is true of piracy – which has been in the Treaty for sixty years, and in international law for hundreds, imagine what other unplumbed surprises lay in the UNCLOS’s depths. Why by a pig in a poke? One cam imagine the fun at Senate hearings on UNCLOS after terrorists are ruled immune from piracy, or after the meaning of piracy is ruled to be indeterminate.

Second, piracy is the poster-crime for well-defined, universally agreed on crimes. U.S. v. Smith treated it as the paradigmatic crime that international law defines well enough to allow for domestic punishment, and Sosa similarly treated it as a clear, universally agreed on crime of the kind that makes ATS liability unproblematic. But if the one of the central elements of the crime is essentially undefined, that blows the central assumption of Smith and Sosa out of the water. Indeed, it gives credence to the district court in U.S. v. Hasan, a prosecution of Somali pirates where the District Court in 2010 concluded that piracy is no longer well-defined enough to be punishable without a legislative definition. I criticized that decision extensively (and the Fourth Circuit reversed), assuring the world that piracy is indeed well-settled. Maybe I was wrong!

Finally, just to show I have no whale in this fight, let me suggest a way for Sea Shepherd to wriggle off the hook on remand. If I were them, I would say that while piracy is the paradigmatic ATS crime, “political” piracy is not universally accepted enough to be a basis of ATS liability. This is different from arguing that it is not covered by LOST Art. 101; rather, it argues that the ATS imposes a higher standard than just violating international law. It requires actual judicial precedents demonstrating the universal accord about the crime.

The Ninth Circuit was right to reverse the district court in the Sea Shepherd Case. The district court erroneously read “private ends” as excluding political ends like saving the whales. But the “private ends” requirement has never been understood to inject a subjective element to the piracy inquiry. It does not turn on whether the actor’s motives are pecuniary, political, operating under mistake of fact, or simply insane. Private ends are those ends held by private parties. The converse is also true: a government-owned ship in government service cannot commit piracy even if it attacks another vessel solely to enrich itself.

The rule is clear as both a matter of customary international law and the Law of the Sea Convention. On the latter score, the “private” ends requirement of the UNCLOS Art. 101 (which defines piracy) has to be read in conjunction with Art. 102, which distinguishes between “warship” or “government ship” – which cannot commit piracy while under governmental control and “private” ships, which are the kind that can be pirates. Thus “private” clearly means “non-governmental,” rather than selfish or not selfish.

The strongest refutation of the district court’s reasoning are opinions finding that attacks by rebel or guerilla groups that had not become recognized belligerents (i.e., de facto state actors) constitute mere piracy. See The Ambrose Light, 25 F. 408
(D.C. N.Y. 1885). Indeed, Confederate privateers would have been treated as pirates had it not been for a political (i.e., executive) decision not to do so. Obviously no such decision has been made in favor of Sea Shepard, which is essentially waging “private war” – or rather, “private Whale Wars.”

Indeed, Judge Story in The Marianna Flora (1822) made it clear there not be any intent for pecuniary gain:

[N]or do I conceive that it is indispensable to constitute piracy, that there should be an intent of private gain, for if a piratical burning or sinking of a ship or murder of her crew should take place by freebooters on the sea, it would be as genuine piracy as if the primary object were immediate plunder. The act would exhibit a piratical and felonious intent, an intent to despoil the owner of his property.

The necessity for this rule is clear. Motives are often mixed and not transparent. The Irish pirates of prior centuries attacked British ships for gain, but also for politics. Similarly, British pirates against the Spanish in the early 1700s stole – and had political motives. Today’s Somali pirates are said to be motivated in part by foreign overfishing in Somali waters; some pirate bands have manifestly political names (National Volunteer Coast Guard of Somalia). (Ironically, Greenpeace argues that the foreign fishing fleets are the real “pirates,” who have caused the problem in Somalia.) Yet in not one of the dozens of Somali pirate trials around the world has this been even considered as even potentially defeating liability.

Indeed, even saving the whales is not clearly political: it could be selfish, in the sense that some people, like the defendants, are happier knowing there are whales in the world, some people are no. Indeed, redistribution from the rich is itself a political agenda, and such a political motive would make all pirates mere Robin Hoods.

Some may chafe at the notion that Sea Shepherd, which they see as a wonderful group devoted to a noble purpose, should be deemed pirates. But there is a valuable lesson here: one should not mistake the rules of international law with those of morality or decency or environmentalism; sometimes they coincide, sometimes they don’t. If one does not like the result, it means one thinks the international rule is bad. I do not know if this is a good rule in a grander sense, but it is certainly the best one that nations could have actually agreed on.

For thoughts on what this means for ATS litigation overall, see my previous post.

The Ninth Circuit’s reversal of a district court decision ruling that actions by Sea Shepherd against Japanese whaling vessels could not constitute piracy because they did not satisfy the “private ends” requirement is obviously correct. (Institute of Cetacean Research v. Sea Shepard Conservation Society.) The district court’s analysis always struck me as strange and disconnected with piracy practice and caselaw. In this post, I’ll discuss the relevance of the decision to Alien Tort Statute issues, and in a subsequent one, I’ll examine the merits.

The Japanese whalers brought suit under the ATS, and the case is notable in two other ways relevant to the Supreme Court’s upcoming decision in Kiobel. First, it shows that the ATS can have both liberal and conservative uses, as I’ve noted before. It is true that there have been few conservative uses, but there weren’t any uses of any kind for 200 years, until Filartiga inspired a wave of human rights litigation. Thus a ruling narrowing the ATS in Kiobel cannot be simply interpreted as “conservative” decision.

Second, it shows that even the narrowest possible ruling in Kiobel – finding the statute to not apply on foreign territory or create corporate liability – cannot be said to close the door to all ATS litigation, or read the statute so narrowly as to make it a dead letter. This case, for example, would clearly survive the narrowest possible post-Sosa view of the ATS.

I am less sure that the ATS applies to piracy at all, though the Ninth Circuit was safe to assume this, as it was assumed by both parties and the Supreme Court in Sosa. I have criticized that that assumption:

It is not clear that Sosa was right about Congress’s belief that the ATS would be a vehicle for piracy suits. Although piracy was one of the three offenses incorporated into common law, it stood on very different remedial footing than the other two. Civil remedies against pirates were almost exclusively in rem. While damages actions were possible, it is hard to find any evidence of such suits, and they would likely have been far too marginal to command Congress’s solicitude. (pg. 107)

Today’s ruling was just on a preliminary injunction. Hopefully on remand, the defendants will take the opportunity to inquire why anyone would thing Congress would have added a supplemental damages remedy to the standard in rem recovery against pirates – to say nothing of an equitable remedy!