Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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The War on Culture

Kia Roberts-Warren

The destruction of culture has become an instrument of terror, in a global strategy to undermine societies, propagate intolerance and erase memories. This cultural cleansing is a war crime that is now used as a tactic of war, to tear humanity from the history it shares,” (Irina Bokova, head of UNSECO).[1]

The destruction and looting of art is a widespread and systematic attack to erase people’s memories and identities. The Nazis destroyed and looted hundreds and thousands of books, art, and other cultural relics.[2] Paintings were vandalized during the armed conflict between Macedonia and the National Liberation Army[3] The siege of Dubrovnik, damaging the ancient Mostar bridge, and the Sarajevo national library during the Yugoslav wars.[4]

Terrorist organizations have put destruction of cultural heritage back on the war agenda. Since ISIS’ has taken over territory in Syria and Iraq, they have destroyed and looted numerous World Heritage Sites that the group deems idolatrous and blasphemous.[5] A World Heritage Site is determined by United Nations Educational, Scientific, and Cultural Organization (UNESCO) and is defined as “belonging to all peoples of the world, irrespective of the territory on which they are located.”[6] By historical standards, ISIS’ actions in Iraq are “on a rampage of destruction not seen since the Mongol’s sacking of Baghdad in 1258.”[7]

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Temple of Bel (or Baal) in Syria. The Temple was one of the main attractions Palmyra, a Roman-era trading outpost in the desert, northeast of Damascus, Syria

In Syria, ISIS has destroyed the ancient cities of Palmyra, Mar Elian Monastery, Apamea, Dura-Europos, and Mari.[8] In Iraq, ISIS has destroyed the oldest Christian monastery (Dair Mar Elia), Assyrian Empire artifacts in the Mosul Museum, Nineveh archeological site, razed the Tomb of Jonah and other religious sites, Nergal Gate (an entrance to the ancient Assyrian city of Nineveh, where the men use power tools to destroy a pair of massive statues of winged bulls with a human heads), and the Nimrud archaeological site.[9]

Moreover, the Sunni Muslim library, the Mosul Museum Library, and the library of the 265-year-old Latin Church and Monastery of the Dominican Fathers have also been heavily damaged. These libraries contained collections from the Ottoman Empire, Iraqi newspapers from the early 20th century, and other ancient texts were burned in the streets.[10] Irina Bokova stated that it was “one of the most devastating acts of destruction of library collections in human history.”[11] (You can see video here)

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A member of ISIS destroying an ancient Assyrian lamassu (screenshot from an ISIS propaganda video)

Intelligence officials say looting is the terror group’s second largest source of income after oil.[12] ISIS encourages civilians to plunder historic sites and then charges a 20 percent tax on anything they sell.

Last February the UN Security Council adopted a new resolution, UNSCR 2199, which was drafted by Russia and co-sponsored by the United States.[13] The Resolution prohibits the trade of artifacts illegally removed from Syria since 2011 and Iraq since 1990.[14] The UN General Assembly, also, passed a resolution called “Saving the Cultural Heritage of Iraq,” which states that ISIS’ actions may amount to war crimes as well as details about ISIS’s attacks on cultural heritage sites and demands its members be stopped and held accountable.[15]

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In the wake of ISIS’ cultural destruction, Italy has teamed up with UNESCO to create a task force.[16] This task force called The Peacekeepers of Culture, will be a 60-person team of art detectives from the art-squad police from Italy’s Carabinieri military police, historians, and Italian-trained restoration experts.[17] The goals of the peacekeepers are to protect ancient artworks, artifacts, and archaeological sites in conflict zones from extremists, protect against “cultural cleansing” and the fear-mongering propaganda, and to cut off some of the Islamic State’s funds acquired through the sale of looted artifacts, statues, and other antiquities on the black market.[18] It will establish facilities in Turin, where it will train cultural heritage protection experts. It aims to “assess risk and quantify damage done to cultural heritage sites, develop action plans and urgent measures, provide technical supervision and training for local national staff,” as well as help move some objects to safety.[19] The task force has not chosen a country for its first mission but is ready to go where UNESCO sends them.[20]

In April 2013, the Smithsonian Institute created the Safeguarding the Heritage of Syria and Iraq (SHOSI) Project. It provides emergency preservation work, conservation materials, and training to Syrian and Iraqi museums to help salvage damaged collections and sites.[21] In the summer of 2014, SHOSI held an emergency workshop in Syria. One of the missions was to provide equipment and supplies for workshop participants to secure the immovable mosaics collection at the Ma’arra Museum in Idlib Province. This museum housed one of the most important collections of third-to-sixth century Roman and Byzantine mosaics in the Middle East.[22]

This may seem to be weak enforcement on the part of the international community. However, destruction of art is as war crime under the Rome Statute of the International Criminal Court (ICC). Article 8 (2)(b)(ix) states: “Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.”[23]

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Ahmad al-Faqi al-Mahdi, on trial at the International Criminal Court in The Hague

The ICC is currently hearing its first ever war crime trial addressing the destruction of cultural heritage.[24] Malian Jihadi leader, Ahmad al-Faqi al-Mahdi is accused of destroying ancient mausoleums in Timbuktu, specifically, medieval shrines, tombs of Sufi Saints, a 15th century mosque and over 4,000 ancient manuscripts were lost or destroyed all which were considered World Heritage sites.[25] This case is considered to be an important case at the ICC in fighting against war crimes directed at cultural heritage.[26] The last time a case like this was brought to trial was in 2013 when Balkan warlords were charged with the shelling Dubrovnik in the early 1990s, damaging the ancient Mostar bridge, and the Sarajevo national library by the International Criminal Tribunal for the former Yugoslavia (ICTY).[27]

When we think of atrocious crimes committed by ISIS, destruction of art and cultural sites are not on the list. We think of targeting civilians, rape, and general pillage. However, it is important because these sites aren’t just the destruction of Iraqi or Syrian history, but, rather history that belongs to the world. These artifacts and sites cannot be repaired or replaced. Once they are destroyed, they are gone completely. To let them perish at the hands of terrorists cannot go unpunished or unnoticed any longer.

Kia Roberts-Warren is a 2l at UB Law. She is concentrating in international law and business law. Kia graduated from Temple University receiving a BA in East Asian Studies during that time she spent a semester in Tokyo, Japan. Kia has an interest in private international law particularly trade and business as well as public international law. She also interested in fashion law and art law in the international context. Last spring, she was an extern at the Hudson Institute, a think-tank in DC that deals mainly with national security issues. Kia is currently the Career Development Director of ILS and recently participated in the 2016 Philip C. Jessup Moot Court Competition. She also plans on attending the Aberdeen Summer Abroad Program this  summer. 

 

[1] http://saudigazette.com.sa/world/mena/this-map-reveals-full-extent-of-daeshs-cultural-destruction/

[2] http://saudigazette.com.sa/world/mena/this-map-reveals-full-extent-of-daeshs-cultural-destruction/

[3] http://www.dailyevergreen.com/news/article_38faf3bc-da91-11e5-a5e1-fb5b07906df6.html

[4] https://news.artnet.com/art-world/icc-cultural-destruction-trial-timbuktu-mausoleums-437882

[5] https://news.artnet.com/art-world/icc-cultural-destruction-trial-timbuktu-mausoleums-437882

[6] http://whc.unesco.org/en/about/

[7] http://saudigazette.com.sa/world/mena/this-map-reveals-full-extent-of-daeshs-cultural-destruction/

[8] http://news.nationalgeographic.com/2015/09/150901-isis-destruction-looting-ancient-sites-iraq-syria-archaeology/

[9] http://nymag.com/daily/intelligencer/2015/03/isis-destroys-ancient-art.html#

[10] http://nymag.com/daily/intelligencer/2015/03/isis-destroys-ancient-art.html#

[11] http://nymag.com/daily/intelligencer/2015/03/isis-destroys-ancient-art.html#

[12] http://hyperallergic.com/183201/un-security-council-takes-aim-at-isis-antiquities-trafficking/

[13] http://hyperallergic.com/183201/un-security-council-takes-aim-at-isis-antiquities-trafficking/

[14] http://hyperallergic.com/183201/un-security-council-takes-aim-at-isis-antiquities-trafficking/

[15] http://hyperallergic.com/210944/un-says-isiss-cultural-destruction-may-amount-to-war-crimes/

[16] http://hyperallergic.com/276208/italy-and-unesco-establish-task-force-to-protect-cultural-heritage-in-conflict-zones/

[17] http://hyperallergic.com/276208/italy-and-unesco-establish-task-force-to-protect-cultural-heritage-in-conflict-zones/

[18] http://hyperallergic.com/276208/italy-and-unesco-establish-task-force-to-protect-cultural-heritage-in-conflict-zones/

[19] http://hyperallergic.com/276208/italy-and-unesco-establish-task-force-to-protect-cultural-heritage-in-conflict-zones/

[20] http://hyperallergic.com/276208/italy-and-unesco-establish-task-force-to-protect-cultural-heritage-in-conflict-zones/

[21] http://unitetosave.si.edu/projects/response/

[22] https://global.si.edu/success-stories/safeguarding-cultural-heritage-syria-and-iraq

[23] http://legal.un.org/icc/statute/99_corr/cstatute.htm

[24] https://news.artnet.com/art-world/icc-cultural-destruction-trial-timbuktu-mausoleums-437882

[25] https://news.artnet.com/art-world/icc-cultural-destruction-trial-timbuktu-mausoleums-437882

[26] https://news.artnet.com/art-world/icc-cultural-destruction-trial-timbuktu-mausoleums-437882

[27] https://news.artnet.com/art-world/icc-cultural-destruction-trial-timbuktu-mausoleums-437882

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The Visa Waiver Program’s New and Improved Two-Tier System

Shane Bagwell

America’s most recent change to its immigration system has been a disastrous oversight of secondary consequences that often come as the result of hasty, reactionary politics. Updates to the Visa Waiver Program were generally positive, but a provision included in the update meant to restrict the travel rights of certain groups backfired. Here we will review the program, the changes, and the potential repairs planned for VWP.

The Visa Waiver Program authorizes citizens of participating countries to travel to the United States without a visa for stays of 90 days or less, avoiding the burden of applying through a U.S. Embassy or Consulate prior to entry into the country.[1] Started in 1986, the program was intended to facilitate tourism and short-term business stays, while cutting red tape and shifting State Department resources to more high priority tasks.[2]

Countries which are currently authorized under the Visa Waiver Program:

VWP

 

In light of recent events around the world, anti-immigrant, anti-refugee, and anti-Muslim sentiments have been inflamed, particularly in the west. As a result of these fears, the U.S. Congress passed the “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015”, section 3 of which prevented persons from entering the United States under the Visa Waiver Program if the person: “has been present, at any time on or after March 1, 2011, in Iraq or Syria, in a country designated as one that has repeatedly provided support for acts of international terrorism, or in any other country or area of concern designated by the Department of Homeland Security (DHS); and regardless of whether the alien is a national of a program country, is not a national of Iraq or Syria, a country designated as a country that has repeatedly provided support for acts of international terrorism, or any other country or area of concern.”

The second part of this change, that “regardless of whether the alien is a national of a program country” a person may be excluded as a member of a class due only to their other citizenship has been most troubling to civil rights advocates and others.[3] There has been particular uproar from the Iranian-American community, due in part to the fact that Iranian citizens are unable to renounce citizenship, and it passed down to children in certain situations. For example, Article 976 of the Civil Code of Iran states that a child born to an Iranian father, no matter where they may have been born, is an Iranian citizen. This means that, for citizenship purposes, a child whose grandfather was Iranian, but who has no cultural or political ties to Iran may be an Iranian citizen through patrilineal descent.

The second section of the act failed to make exceptions for any group visiting countries such as Syria or Iraq for legitimate purposes. The Obama administration announced that certain groups would be exempted from the visa requirement, such as journalists, humanitarian workers, those traveling on behalf of international organizations or local governments, as well as those who have visited Iraq for “legitimate business-related purposes,” or travelled to Iran after July 14, 2015.[4] These actions have received pushback from Republicans, who believe that the unilateral granting of exemptions was not authorized in the bill.

PassportControl

Because the Visa Waiver Program is reciprocal, there is a likelihood that these restrictions will be matched by partner countries.[5] Rep. Jared Hauffman (CA-2)., in a letter to President Obama, stated that “[b]ecause the VWP is founded on reciprocity, our U.S. citizen constituents are concerned that this exclusion could result in our VWP partners severely restricting, or entirely ending, visa-free travel for certain U.S. citizens.” This presents an awkward circumstance for Americans who hold multiple citizenships, either by choice or involuntarily.

Rep. Justin Amash (MI-3) introduced the Equal Protection in Travel Act of 2016 on January 13th to repeal the controversial section that applies only to dual nationals of Visa Waiver Program countries.[6]  The bill has received broad bipartisan support, but, in an unpredictable Congress, nothing is certain. As such, it is possible that the restrictions could remain in place, and that retaliatory measures could be taken reducing the utility of U.S. passports for dual nationals under the program.

Until the Equal Protection in Travel Act is signed in to law, the status of dual nations in Visa Waiver Program countries remains in flux. Without swift congressional action, the rules will remain in place, and could cause chaos for dual national travelers within the network. It is worth noting that Canadian citizens are visa exempt and are not participants in the Visa Waiver Program, and therefore the new restrictions do not apply to Canadian citizens who have dual nationality in one of the specified countries.[7]

Shane Bagwell is a 3L at the University of Baltimore School of Law, and a graduate of West Chester University with a Bachelor of Arts in Political Science. He currently serves as the President of the Military Law Association. His interests are Middle Eastern politics, international conflicts, and the law of land warfare. He is currently a law clerk for the Office of the State’s Attorney for Baltimore City, Economic Crimes Division.

[1]     “Visa Waiver Program,” U.S. Dept. of State, https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html

[2]     Visa Waiver Permanent Program Act, Pub. L. 106-396, https://www.gpo.gov/fdsys/pkg/PLAW-106publ396/html/PLAW-106publ396.htm

[3]     These Changes To Tighten Visa Waiver Program Are Now In Effect, NPR. http://www.npr.org/sections/thetwo-way/2016/01/21/463846286/these-changes-to-tighten-visa-waiver-program-are-now-in-effect

[4]     Visa Waiver: U.S. Visa Rules Eased For Some European Travelers Who Visit Terrorist Hotspots, HNGN. http://www.hngn.com/articles/172169/20160122/visa-waiver-u-s-rules-eased-european-travelers-who-visit.htm

[5]     Austin, L. G. (2015, December 18). Visa Waiver Program Improvement Act short on prevention but punitive towards Iranian Americans, the Hill. http://thehill.com/blogs/congress-blog/foreign-policy/263661-visa-waiver-program-improvement-act-short-on-prevention

[6]     Equal Protection in Travel Act of 2016, H.R.4380, 114th Cong. (Referred to the House Committee on the Judiciary 1/13/2016)

[7]     8 CFR §212.1(a)

 


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Authorization to Use Military Force Against ISIL: What the President Wants and Why it Doesn’t Matter

Matt Matechik

What did President Obama “ask” Congress?

On February 11, 2015 President Obama formally approached Congress and implicitly sought their approval to use American military force against the Islamic State of Iraq and the Levant (ISIL). Specifically, the President submitted a draft joint resolution Authorization to Use Military Force (AUMF) and encouraged Congress in a formal letter to pass it.[i]

If passed in its current draft form (highly unlikely), the AUMF would grant the President Congressional approval to use American military forces against ISIL “and associated persons or forces” for a period of up to three years. The draft does not impose any geographic restrictions. Therefore, the President would be authorized to conduct military operations against ISIL in Iraq, Syria, Libya (where ISIL appears to have gained a foothold[ii]) and absolutely anywhere else in the world he deems “necessary and appropriate.”[iii] (NOTE: The AUMF only gives the President the domestic legal authority to enter into either Iraq, Syria, Libya, or other states. This blog will not deal with the international authority the President has to do so.)

Although the draft AUMF would not limit the location of military operations, it does purport to limit their scope. The draft prohibits activity that rises to the level of “enduring offensive ground combat operations.”[iv] The administration claims that this phrase prohibits large-scale long-term military campaigns such as those recently conducted by the United States in Afghanistan and Iraq. However, the stipulation would not prohibit the use of ground forces for less involved purposes such as rescue operations and pursuit of ISIL leadership. Additionally, the AUMF would allow “the use of U.S. forces in situations where ground combat operations are not expected or intended, such as intelligence collection and sharing, missions to enable kinetic strikes, or… other forms of… assistance to partner forces.[v]

This draft language, even with the limitation, is actually very broad, despite what some members of Congress are claiming. The draft intentionally uses open-ended phrasing that President Obama could potentially cite in committing American forces to ground combat.

AUMF ISIS Blog

Why did the President reach out to Congress?

President Obama approached Congress as part of his “commitment to working with Congress… to authoriz[e] the continued use of military force to degrade and defeat ISIL.” The President urged Congress to “join [him] in supporting our Nation’s security… which would show the world we are united in our resolve to counter the threat posed by ISIL.”[vi]

Did the President really “ask” Congress for anything?

No! The language of President Obama’s letter to Congress is extremely precise. A careful reading reveals that the President is not actually asking Congress for anything at all. To the contrary, the letter explicitly states that he already has all the authority he needs.[vii] The President is simply inviting Congress to provide their stamp of approval for military action that he is already undertaking and presumably will continue to undertake with or without Congress.

President Obama’s posture is not surprising. Historically, the sitting President, no matter his party, and Congress have performed a delicate dance around the subject of who controls the use of American military force abroad. The tension between the executive and legislative branches stems from the Constitution, which confers upon the President unspecified powers commensurate with the title “Commander in Chief” while endowing Congress with numerous specific war powers including, but not limited to, the power to “declare war” and “organize, fund, and maintain the nation’s armed forces.”[viii]

What about the War Powers Resolution?

This “dance” took on its modern form in 1973 when Congress passed the War Powers Resolution (WPR) to “to insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.”[ix] The WPR, at least on paper, requires the President to involve Congress at various points before, during, and after his decision to use force. One of its most controversial provisions requires the President to terminate military action within sixty days of its initiation unless Congress has declared war, extended the sixty-day period, is physically unable to meet, or provided statutory authorization.[x]

In practice, the WPR has done little to prevent the President from unilaterally committing American forces to foreign theatres. The sitting President, no matter his party, typically finds some way to circumvent the WPR’s purpose of involving Congress while still purporting to be consistent with the WPR. The President usually claims he already has all the authority he needs by virtue of his title as Commander in Chief and/or he interprets a statute in a particular way to find the Congressional approval he needs.

AUMF ISIS Blog 2

Sixty Days?! Haven’t we been fighting ISIL for months?!

Yes! The present scenario illustrates the WPR’s questionable influence. President Obama initiated a sustained air campaign against ISIL targets in Syria on September 22, 2015.[xi] Since that time there has been no declaration of war, no extension of the sixty-day period, and no problems with Congress meeting. Under the WPR, President Obama therefore has two choices: obtain Congressional statutory approval for the military action sixty days after initiation or terminate the mission. And yet, only now, 142 days later, far past the sixty-day deadline, is the President seeking statutory authorization and, as noted above, he is not truly even asking for it.[xii]

It should be noted that President Obama’s apparent disregard for the WPR is not unique to his administration. President George H.W. Bush ordered thousands of American servicemen to Somalia during December 1992 without explicit approval from Congress. He “found” statutory approval for the military deployment by broadly interpreting a statute that supported a US humanitarian mission in Somalia. President Bill Clinton ordered over 20,000 American troops to invade Haiti during September 1994 without explicit approval from Congress. His primary argument for nixing Congress was that the operation did not rise to the level of “war” requiring a declaration and therefore Congress need not be involved. These are only a few examples of many.

What happens now?

War (at least the political kind)! Congress must debate the draft AUMF and then either pass it as written, pass it with changes, or pass no AUMF at all. Ultimately, whatever Congress decides will not matter. If they pass any AUMF, the granted authority will be largely for symbolic purposes only. If they do not pass an AUMF, it is all but certain that President Obama will continue to commit American forces to the fight anyway. For the President, it’s a win-win. He will either by a wartime Commander-in-Chief enjoying the support of Congress as he battles America’s enemies abroad or he will be the President who was willing to stand up to the evil that is ISIL when Congress seemingly refused.

AUMF ISIS Blog 3

The political game surrounding the draft AUMF is likely to continue for some time. Politicians will squabble and legal scholars will debate the legal powers of he executive and legislative branches. Meanwhile, the United States is already at war with ISIL, regardless of who formally signs off on it, and will be for the foreseeable future.

Matthew Matechik is an Evening J.D. student at the University of Baltimore School of Law (Class of 2016). He currently works full-time for the U.S. Federal Government as a Counterterrorism Analyst. He has a Bachelors of Arts (Magna Cum Laude, 2008) from Florida State University. All views in this blog post are Matthew’s own views and do not represent that of the U.S. Government. 

[i] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[ii] http://www.telegraph.co.uk/news/worldnews/islamic-state/11418966/Islamic-State-planning-to-use-Libya-as-gateway-to-Europe.html

[iii] http://www.whitehouse.gov/sites/default/files/docs/aumf_02112015.pdf

[iv] http://www.whitehouse.gov/sites/default/files/docs/aumf_02112015.pdf

[v] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[vi] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[vii] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[viii]  U.S. Const., art. II, § 2, cl. 1, U.S. Const., art. I, § 8, cls. 1114.

[ix] 50 U.S.C.A. § 1541.

[x] 50 U.S.C.A. § 1544.

[xi] http://www.whitehouse.gov/the-press-office/2014/09/23/statement-president-airstrikes-syria

[xii] President Obama seems to be keeping the 2001 AUMF in his back pocket to claim Congressional authorization even if Congress does not pass an ISIL-specific AUMF. The 2001 AUMF authorized the President to use force against “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,  2001, or harbored such organizations or persons, in order to prevent any  future acts of international terrorism against the United States by such nations, organizations or persons.” The Obama administration suggested as early as September 2014 that they could rely on the 2001 AUMF. See http://www.whitehouse.gov/the-press-office/2014/09/23/background-conference-call-airstrikes-syria. This position is problematic given that ISIL, a new group distinct from al-Qaida, had nothing to do with the September 11 attacks.


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The Law is Lacking: How PMSCs are Able to Circumvent National and International Law, Part II

Lindsay Stallings

The law that governs private military security contractors in times of armed conflict is, at the same time, both too broad and too narrow. Historically in most of its legal instruments, international humanitarian law (IHL) has addressed the role of mercenaries in armed conflict. The Hague Conventions of 1907, the Geneva Conventions of 1949 and the 1977 Additional Protocols all speak to the protections for mercenaries in armed conflict.[1]  Most specifically, the International Criminal Court states that they do not hold any jurisdiction over the “crime of mercenarism”.[2] With the increased incorporation of private military security contractors in conflicts around the world, this historical approach needs to be revisited and we need to determine, as an international community, the legal rights and regulations that bind PMSCs. 

PMCExperience-1

Today, PMSCs are largely self-regulated. They set company-specific standards for themselves and proceed with carrying out their contracted mission. To be clear, the parts of IHL that references mercenaries does apply, in large part, to the activities of PMSCs; and further, it provides a launching point for determining where the responsibility lays for the actions of PMSCs. It does not provide a law by which PMSCs must abide by however. They exist in a legal limbo, both on an international and a national level. In the US, PMSCs do not fully fall within the parameters of the Uniform Code of Military Justice (UCMJ),[3] as they are not active duty military, they will likely not become subject to laws of the “Host Nation” as that requires consent by the “Sending State”[4] – something that the US would refrain from for many reasons, and they fall out of reach of the Military Extraterritorial Jurisdiction Act of 2000 (MEJA) as it applies only to Department of Defense contractors.[5]

This legal hole leaves the international community with a large problem, who and how are these important armed conflict actors going to be held responsible for violations of IHL?

There are multiple examples that highlight the need for this question to be answered; one of the most intricate is the inspiration for these posts. The former Blackwater PMSCs who fired upon and killed 17 Iraqis in 2007 fall just outside of the parameters of all applicable law. We can analyze the situation moving from US law to international law and see how important it has become to reign in the activities of these non-state actors.

blackwater-logo1

Self-regulation doesn’t always work. t has become clear throughout the investigation of this incident that Blackwater was a troubled company. Many PMSCs are former military, specifically special operations, and have a strong sense of duty to their country and their cause. The Blackwater CEO at the time had begun to make changes in the company, demanding all employees declare their loyalty to just him. This is just one example of why self-regulation is not the sole solution to this legal struggle.

Moving to the next level of law, trying PMSCs under US criminal law poses distinct constitutional issues as well as practical investigatory and evidentiary issues. A crime committed outside of the US is difficult to investigate and creates issues when trying to preserve the integrity of the evidence across such geographic expanses. In that same vein, allowing for the Host State to prosecute crimes committed by PMSCs in their territory poses even more practical issues. Many times, Host State governments and court systems are ill equipped to handle the situation or are corrupt. In this specific situation concerning Blackwater, the US was not going to allow the Iraqi government that level of unchecked power over US citizens.

Moving to the next level, the UCMJ covers only civilians accompanying US armed forces in contingency operations.[6] This provides jurisdiction for the US Armed Forces to prosecute contractors for criminal acts committed in the course of their operations. Practically, however, the Department of Defense has failed to publish the regulations guiding Judge Advocates Generals so they can properly proceed with prosecuting contractors under the new UCMJ.[7] Again, this legal solution is also not enough.F546ED2D-F118-47E6-9719-BBB3041D7DB7

Moving into international law, the Hague Conventions of 1907 discusses the implications of mercenary, not PMSC, activity on neutral states. If a state is neutral in a conflict, they are not permitted to allow recruiting or other mercenary activity to occur in their territory.[8] Additionally, in the Additional Protocol I of the Geneva Conventions (1977), Article 47(1) states that individuals who are found to be a mercenary would be deprived the rights of the combatant or prisoner-of-war status. Finally, the Rome Statute specifically states that the International Criminal Court has no jurisdiction over the “crime of mercenarism”.[9]

Looking at just these few sources of legal authority governing current PMSC activities, it is clear that the facts of each instance of PMSC criminal behavior must be creatively applied to the law to ensure accountability. In the case of the former Blackwater employees, the legal case encountered all of the presumed legal difficulties; who, where, how, when? A solution, seven years later, as stated in my first post, likely put more of a diplomatic strain on the relationship between the US and Iraq.

It is a call for more of an international law solution for the growing PMSC presence in international conflicts. It is a call we cannot ignore as more and more PMSCs participate in conflicts globally.   

Lindsay Stallings is third year student at the University of Baltimore School of Law, planning to graduate in May 2015 with a J.D. and concentration in International Law. She graduated from The Ohio State University in June of 2011 with a Bachelors of Science in Political Science with minors in Sociology and International Studies. She has also studied  Spanish and Arabic language and culture extensively. While at The Ohio State University she was a member of the International Affairs Scholars program, through which she studied abroad in Bulgaria. She was active in the Undergraduate Student Government and was a member of various academic and student life university-level committees.

Her primary interests are international law, national security, and U.S. Military and diplomatic policies. Through her coursework and relationships with our international law faculty she has developed a more focused interest in the policies surrounding international conflict and the capabilities of international courts. Lindsay currently serves as the Careers Director on the International Law Society and is a Staff Editor on the Journal of International Law. Her legal coursework and extracurricular activities have given her the opportunity to mold her passion for cultural studies and problem solving into an exciting international legal career.

[1] Katherine Fallah, Corporate actors: the legal status of mercenaries in armed conflict,

[2] Id. At 610 (articles 5, 121, and 123 of the Rome Statute do indicate that the question of jurisdiction can be revisited if there is consideration of the definition of “aggression” by states parties.)

[3] GWLR

[4] GWLR 1312

[5] GWLR 1311

[6] 10 U.S.C. § 802(a)(10) (2006).

[7] GSLR 1314; see also Memorandum from Gordon England, Deputy Sec’y of Def., to Secretaries of the Military Departments, et al. (Sept. 25, 2007) available at http://www.aschq.army.mil/gc/files/Dep-SecDef%20Memo%20Mgt%20of%20Contractors%2025Sep07.pdf.

[8] Hague Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, of 18 October 1907 (Hague Convention V).

[9] Rome Statute


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Holding Private Military Security Contractors Accountable, Part I

Lindsay Stallings

What is the role of private military security contractors (PMSC) in international war today? At the beginning of the War on Terror there were an innumerable amount of private security personnel working for the United States in Iraq and Afghanistan. On October 23, 2014, a jury convicted four former Blackwater (now known as Academi) security personnel of first degree murder, voluntary manslaughter, attempted manslaughter, and using military firearms in the commission of a felony.[1] These convictions send a message that the actions of PMSCs can incur criminal liability for their actions.

The role PMSCs play in international conflicts is very important. They often do work that active duty military cannot do because of various international law constraints, they often have military training themselves, but are often not held by the same international law standards due to the status of forces agreements (SOFA) that they operate under in the host country. These agreements often afford PMSCs immunity under the domestic laws of the host country. This case featuring the four former Blackwater operatives is of great importance because it is the first instance that puts limits on the activities of the PMSC’s. 

KHALID MOHAMMED/AP - An Iraqi traffic policeman inspects a car destroyed by a Blackwater security detail in al-Nisoor Square in Baghdad, Iraq in 2007. A federal jury in Washington convicted four former Blackwater security guards on trial in the shootings of more than 30 Iraqi citizens in the heart of Baghdad.

KHALID MOHAMMED/AP
An Iraqi traffic policeman inspects a car destroyed by a Blackwater security detail in al-Nisoor Square in Baghdad, Iraq in 2007. A federal jury in Washington convicted four former Blackwater security guards on trial in the shootings of more than 30 Iraqi citizens in the heart of Baghdad.

Condoning their Behavior?

In 2007 four Blackwater operatives killed 14 unarmed Iraqi’s, largely women and children. At the time of the incident the US refused to allow the Blackwater employees to be tried by the Iraqi justice system. They were brought back to the US to stand trial here instead. The first trial was dismissed by the judge based on the unconstitutional collection of evidence.[2] In terms of US-Iraqi diplomatic relations the mistrial was the second blow. First, the US protected the Blackwater employees by bringing them back to the US for trial. Second, when they did face trial, it was inconclusive. To the Iraqis this likely seemed as if the US was condoning the Blackwater employee’s actions, as there was no justice for those that were killed.[3]

At the conclusion of the second trial on October 22, 2014, there was little rebounding from the presumption that the US did not really intend to punish the Blackwater employees. In response to this daunting assertion, US attorney in Washington, DC said that this verdict “is a resounding affirmation of the commitment of the American people to the rule of law, even in times of war.”[4] Holding these security contractors accountable, even seven years later, will hopefully bridge the diplomatic differences exacerbated by this incident.[5]

Former Blackwater Worldwide security guard Nick Slatter, second from left, and Donald Ball, third from left, arrive with their lawyers at the U.S. District Court before surrendering to authorities in Salt Lake City, Utah, in Dec. 2008.

Former Blackwater Worldwide security guard Nick Slatter, second from left, and Donald Ball, third from left, arrive with their lawyers at the U.S. District Court before surrendering to authorities in Salt Lake City, Utah, in Dec. 2008.

What Role Will PMSCs Play in International Conflicts in the Future?

The true question is what legal status should PMSCs have in future international  and non-international armed conflicts?

In this case, the lack of international legal status is likely what caused the most diplomatic strife. These men are American citizens, but they are not American military. They do not report to the Department of Defense, the Uniform Code of Military Justice, and the US enters into agreements with the host government that waives the applicability of host country domestic law for their actions. PMSCs are private American citizens employed by the Department of State. PMSCs operate in a legal vacuum. Prior to these convictions, legal precedent was unclear as to what law applied to private citizens committing criminal acts in foreign lands. There is still not a clear legal direction as to what status PMSCs hold when they are acting in a foreign country. This could be further muddled if distinguishing between the types of conflicts that PMSCs are participating in, whether or not they are working overtly or covertly, and who has hired them (the United States government or other nations). In the second installment of this blog post, however, I will delve further into the legal status PMSC’s should have when acting within various types of international conflicts based on the legal precedent set by this case.

While legal precedent is important, it sometimes works much slower in the real world than public policy could work. The Iraqis doubted the US commitment to bringing the Blackwater employees to justice for their attack on unarmed Iraqi civilians. This ruling is a palpable step towards establishing a barrier between acceptable and unacceptable behavior of private citizens acting in a war zone. Although the Iraqis may not have their full faith in the US justice system restored after waiting seven years for a ruling, this is indeed a positive step in showing the world that we are willing to hold these private citizens accountable for their actions. This could, and hopefully does, show the world that the US does not think it is completely above the law – foreign or domestic.

blackwater_trial_04-22-2014

Legal precedent is important and actively developing due, in large part, to this case. In the meantime, the evolving public policy will hopefully calm any remaining diplomatic strain stemming from this incident. Further, it should remind the international community that the US is taking responsibility for the actions of their PMSCs and, while it took some time in this case, impunity will not carry on into the future.

In Part Two of this blog post I will discuss the legal standards that should be applied to PMSCs in different types of international conflicts.

Lindsay Stallings is third year student at the University of Baltimore School of Law, planning to graduate in May 2015 with a J.D. and concentration in International Law. She graduated from The Ohio State University in June of 2011 with a Bachelors of Science in Political Science with minors in Sociology and International Studies. She has also studied  Spanish and Arabic language and culture extensively. While at The Ohio State University she was a member of the International Affairs Scholars program, through which she studied abroad in Bulgaria. She was active in the Undergraduate Student Government and was a member of various academic and student life university-level committees.

Her primary interests are international law, national security, and U.S. Military and diplomatic policies. Through her coursework and relationships with our international law faculty she has developed a more focused interest in the policies surrounding international conflict and the capabilities of international courts. Lindsay currently serves as the Careers Director on the International Law Society and is a Staff Editor on the Journal of International Law. Her legal coursework and extracurricular activities have given her the opportunity to mold her passion for cultural studies and problem solving into an exciting international legal career.

[1] Justine Drennan, Four Blackwater Guards Convicted of Killing 14 Unarmed Iraqis, Oct. 23, 2014 http://thecable.foreignpolicy.com/posts/2014/10/22/four_blackwater_guards_convicted_of_killing_14_unarmed_iraqis.

[2] Dwyer Arce, Federal judge dismissed charges against indicted Blackwater guards, Jan. 1, 2010 http://jurist.org/paperchase/2010/01/federal-judge-dismisses-charges-against.php.

[3] Mary Casey, U.S. Jury Convicts Four Former Blackwater Guards in 2007 Killings, Oct. 23, 2014 http://mideastafrica.foreignpolicy.com/posts/2014/10/23/us_jury_convicts_four_former_blackwater_guards_in_2007_killings

[4] Id.

[5] Matt Apuzzo, Blackwater Guards Found Guilty in 2007 Iraq Killings, Oct. 22, 2014 http://www.nytimes.com/2014/10/23/us/blackwater-verdict.html?ref=middleeast&_r=0.


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Eliminating the IS Threat – Why a U.S. Led Coalition Was the Only Way It Would Work

Lindsay Stallings

The Islamic State (IS), also known by the acronyms ISIS (Islamic State of Iraq and Syria) or ISIL (Islamic State of Iraq and the Levant), has been growing in their power and their influence around the Arab world. However, while they are creating a daily panic in Syria and Iraq, they are causing great concern for the rest of the world.  IS is largely autonomous. They have stolen, robbed, or bartered for their money, weapons, and even slaves. The international concern for IS’ activities stems not only from their humanitarian violations against those in Syria and Iraq; but more, the fear that comes from their sheer power. It is for this reason that President Obama, who had once had been so adverse to relying on the 2001 and 2002 AUMFs, felt it necessary to rely on these very legal instruments to bolster his arguments for air strikes against IS. In doing so, he has made his smartest and most mature foreign policy decision of his Presidency – taking charge and leading a coalition of states in eliminating the IS threat.

In the middle of August of 2014, IS released their first viral video – the beheading of American journalist James Foley, who was beheaded for the sins of the Americans. They have beheaded innocent people, have raped and pillaged villagers, and have terrorized countless populations; and there seems to not be an end in sight. [1] President Obama has admitted that US intelligence on the strength of IS was lacking.[2] Over the past few years of Syrian unrest, IS has been able to use widespread lawlessness to recruit and develop their jihad. The United States, along with five Arab nations and France,[3] began air strikes against IS two weeks ago. From outside reports it seems that strikes are currently being aimed at infrastructure and oil strongholds.[4] Thus far, there is a general avoidance of targeting individuals and more of a focus on materials. This makes it clear that the US and their allies recognize the importance of IS’ resources. It is obviously important to not underestimate the strength of IS’ message, both in the Arab world and globally, but their resources will run out long before their passion for the advancement of the Islamic State and, in reality, the loss of resources will hurt them first.  However, to compound the obvious hole in U.S. intelligence, an IS combatant has publicly stated that IS was prepared for the U.S. airstrikes, claiming they have been ineffective against IS.[5] _77944799_iraq_syria_air_strikes_624_01_10_14_v2 The US made the first move on the airstrikes and did so without the full support of the international community. Should the world and, potentially more importantly, US citizens take notice of this deviation in President Obama’s approach to unrest in the Middle East? In a time when the US is fighting an image battle in the Middle East, this was a bold move, and one that seems to have been made less for political reasons than it was for moral ones. It is worth a great deal of commendation that our administration is willing to take this step. Mind, we are not doing this alone, there are multiple Arab countries fighting for their own borders, along with French, British, Belgium, and Danish support, a total of fifty countries have signed on to support the airstrikes.[6] This support comes in the form of ground support, air support, and of course, political support. But, this all began before President Obama went to the United Nations. Before he was forced to explain why the US thought they could, should, and had the right to get involved. The event to be considered here is why the President of the United States decided to commence air strikes and then, at least two weeks later, plead with the international community for their support and encourage action to be taken against ISIS. During the course of his presidency, President Obama has rarely taken international action without wandering around the world, garnering as much support, either implicit or explicit, as he could. But here, he essentially said, “World, we know what we are going to do to deal with this -what are you going to do?” UN-SECURITY COUNCIL-OBAMA This shows a certain level of foreign relations maturity on the part of POTUS. He and his advisors made a decision that we could not stand by and let ISIS terrorize Iraq, Syria, Christians, Jews, the Yazidi (a Kurdish ethno-religious community who practice Yazidism in Iraq), and threaten to lash out at America, without doing something. The President ran his first campaign on the auspices that the “War On Terror” must end. He ended the war in Iraq, he started to pull out of Afghanistan – and is continuing that effort for all intents and purposes – but the Middle East is still in constant, bubbling, turmoil. And, in the end, the US is the US. The world’s savoir, the moral-driven, freedom to all races and creeds-focused, rescuer of all, right!? But, is that our job? Is that the job of the American Armed Forces to step in and save all of those deemed unable to save themselves? I think that President Obama’s decision to direct airstrikes against IS is indeed his most mature foreign policy move to date. He did not wait for the rest of the world powers to support him, he did not ask permission from anyone aside from Congress[7], and did what was right for the United States and the areas in the Arab world we have taken responsibility for over the last ten years. It would have been sadistic on the part of the U.S. to just sit back and watch as Iraq, a country we essentially decimated over the past decade, to struggle to fight this new radical bastardization of Islam that currently terrorizes them. The US took on this responsibility in 2001. We tried to establish communities and governments that would help the weakened and tired populations of the Arab world. We tried to empower them and build democracy. It has not worked yet and we are, clearly, not done. So, when a new group rises up, a group more terrifying than Al-Qaeda has ever been, we cannot step away. The President put on his ‘I am a world leader’ pants and he worked with those who were suffering the most. He created a coalition of the willing and took responsibility for the role the United States played in allowing this to happen. French When President Obama spoke to the United Nations he did not tell the world that we were doing the right thing for everyone. He made it clear that this was important to the US, and why. He did not tell the United Nations that the US was better than the rest of them for taking action; he actually made clear that the US has struggles too.[8] There are school shootings, race riots, militarizing police forces, renegade shooters targeting law enforcement officers, individuals setting wild fires – the list of domestic struggles the US is facing is not less than that of any other country. And finally, President Obama recognized that by not pretending we were better than every other country, those countries were more willing to listen to our silent pleas for help. The President was begging for other countries to step in, to step up and recognize that the threat from IS is not just against those in the Arab world or just against the US, it is a threat to the general level of safety most citizens of the world feel as they go about their daily lives. The French joined in the airstrike offensive on September 19 with the US and Arab partners.[9] Thus far, France has only acted in Iraq, wary to move into Syria and encourage any more disturbances. However, as of Friday, September 25, they have said they are considering moving into Syria on the tail of a French tourist’s beheading by an Algerian terror organization.[10] Yesterday, the UK carried out its first air strikes in Iraq[11]  after voting last Friday to authorize action in Iraq.[12] No mention was made of the UK going into Syria, which shows that they too are wary of moving into an area where they are not invited. UK Parliament Each country currently involved or considering involvement in this offensive is doing so for country-specific reasons, not based on the perceived duty owed to the international community as a whole. A sense of general duty did not work as well as they hoped ten years ago in Iraq, but maybe this time there will be more successful. Personal involvement, a sense of devotion the protection of oneself, will hopefully deal with this matter with less bureaucracy and more effectiveness. Only when there is an understanding that this is not only a worldwide threat but also a worldwide responsibility can we finally defeat IS.

Lindsay Stallings is third year student at the University of Baltimore School of Law, planning to graduate in May 2015 with a J.D. and concentration in International Law. She graduated from The Ohio State University in June of 2011 with a Bachelors of Science in Political Science with minors in Sociology and International Studies. She has also studied  Spanish and Arabic language and culture extensively. While at The Ohio State University, she was a member of the International Affairs Scholars program, through which she studied abroad in Bulgaria. She was active in the Undergraduate Student Government and was a member of various academic and student life university-level committees.  Her primary interests are international law, national security, and U.S. Military and diplomatic policies. Through her coursework and relationships with our international law faculty she has developed a more focused interest in the policies surrounding international conflict and the capabilities of international courts. Lindsay currently serves as the Careers Director on the International Law Society and is a Staff Editor on the Journal of International Law. Her legal coursework and extracurricular activities have given her the opportunity to mold her passion for cultural studies and problem solving into an exciting international legal career.

[1] Rod Mills, Family anguish over Glasgow schoolgirl turned jihadi (Sep. 4, 2014) http://www.express.co.uk/news/uk/506765/Family-anguish-over-Glasgow-schoolgirl-turned-jihadi; Teenage jihad: 2 Austrian girls stopped en route to join ISIS, (last edited Sep. 10, 2014) http://rt.com/news/186536-austria-schoolgirls-join-isis/.

[2] Stephen Rex Brown, President Obama admits U.S. ‘underestimated ISIS’ strength – but knocks other superpowers for failure to act (Sep. 28, 2014) http://www.nydailynews.com/news/politics/obama-admits-u-s-underestimated-strength-rise-isis-article-1.1955804.

[3] France Says Carried Out Air Strikes In Iraq September 25 (Sep. 25, 2014) http://www.rferl.org/content/iraq-france/26605701.html.

[4] Scott Neuman, Airstrikes Move to Syria, Target More Than Just ISIS (Sep. 23, 2014) http://www.npr.org/blogs/thetwo-way/2014/09/23/350820165/airstrikes-move-to-syria-target-more-than-just-isis; New airstrikes, new tactic to beat ISIS (Sep. 25, 2014) http://www.cbsnews.com/news/u-s-arab-allies-airstrikes-target-isis-oil-refineries/.

[5] Arwa Damon and Holly Yan, ISIS fighter says U.S. airstikes aren’t effective (Sep. 29, 2014) http://www.cnn.com/2014/09/29/world/meast/isis-fighter-and-defector-interviews/index.html?hpt=hp_t1.

[6] Stephen Castle and Steven Erlanger, Nations Offer Limited Support to Attack on ISIS (Sep. 26, 2014) http://www.nytimes.com/2014/09/27/world/europe/british-parliament-vote-isis-airstrikes.html?_r=2; Michael Pearson, Greg Botelho, and Ben Brumfield, Anti-ISIS coalition grows, but that doesn’t mean victory is near (Sep. 27, 2014) http://www.cnn.com/2014/09/26/world/meast/isis-syria-iraq/index.html.

[7] Lisa Mascaro, Congress mostly approves of airstrikes in Syria so far (Sep. 23, 2014) http://www.latimes.com/nation/politics/politicsnow/la-pn-congress-syria-airstrikes-20140923-story.html (explaining that Congress approved of support of training and equipping moderate Syrian rebels).

[8] Stewart M. Patrick, President Obama’s UN Speech: Defending World Order (Sep. 24, 2014) http://blogs.cfr.org/patrick/2014/09/24/president-obamas-un-speech-defending-world-order/.

[9] France Carried Out Airstrikes, supra note 2.

[10] Id.; France Considers Airstrikes Against ISIS in Syria After Beheading (Sep. 25, 2014)  http://www.nbcnews.com/storyline/isis-terror/france-considers-airstrikes-against-isis-syria-after-beheading-n211221.

[11] Jenny Gross, U.K. Carries Out First Airstrikes in Iraq (Sept. 30, 2014) http://online.wsj.com/articles/u-k-ministry-of-defense-raf-carried-out-its-first-airstrikes-in-iraq-1412097556

[12] Nicholas Winning and Jenny Gross, British Parliament Approves Airstrikes in Iraq Against Islamic State (Sept. 26, 2014) http://online.wsj.com/articles/david-cameron-calls-for-u-k-parliament-to-vote-for-iraq-airstrikes-on-islamic-state-1411725035


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Justification for Attacking IS – Is it Legal?

Clark Smith

In the wake of the President’s address to the nation on forthcoming US-led action against the Islamic State (IS) in Iraq and Syria, foreign officials abroad and legal scholars at home are lambasting the President for his presumed lack of legal justification.  In a primetime speech on September 10, the President laid out his strategy to “degrade and ultimately destroy” IS.  In short, his four-part strategy includes: continued air strikes against IS targets, though now expanding to Syria; increased support to forces fighting IS, in the form of additional US uniformed trainers and advisors in Iraq and providing of arms, equipment, and coordination for training to forces inside Syria; continued counterterrorism efforts aimed at denying IS necessary logistics and support by working with international partners to cut off funding, stem the inflow of foreign fighters, and countering IS propaganda; and further humanitarian assistance to those displaced by IS.  Although the President claims bipartisan support, he also claims “the authority to address the threat from ISIL.”  It is the airstrikes planned for Syria-based IS targets and the President’s presumed basis for authority to attack IS more broadly that concerns legal experts.

Iraq map locator

Both Syria and its ally Russia assert that any US airstrikes against targets in Syria would be in violation of international law.  A Syrian government spokesman warned that “any action [against IS] without the consent of the Syrian government would be an attack on Syria.”  And despite ongoing Russian involvement in the Ukraine, a Russian spokesman warned that any US action in Syria absent “an appropriate decision of the UN Security Council, [] would become an act of aggression, a crude violation of the norms of international law.”  Article 2(4) of the UN Charter would certainly seem to support Russia’s assertion of the Syrian position.  And with Russia’s position on the Security Council, a Security Council decision supporting the US strategy is all but impossible.  But, a Security Council decision condemning, or even prohibiting, the forthcoming US action in Syria is equally impossible.  Just as international law has been ineffective in curbing Russian aggression in the Ukraine, so too will it be ineffective in facilitating the efforts of any of the US’s detractors in dismantling IS.  Even if legitimate international law concerns did exist regarding the US strategy for addressing the IS threat, the US interests do, and should, outweigh those concerns (I make this argument here in my law article, on page 192).

Mapping the Syrian Conflict

More concerning to legal scholars, at least from a domestic perspective, is the President’s claim that he already has “the authority to address the threat from ISIL.”  Presumably, the President is referring to the Authorization for Use of Military Force (AUMF) passed by Congress in 2001 in response to the 9/11 attacks.  The key language of that AUMF indicates…

“…the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Since being passed for combat operations in Afghanistan, the AUMF has also provided the legal basis for attacks against al Qaeda, and affiliates, in Pakistan, Yemen, and Somalia.  Just last year Pentagon legal experts defended broad authority under the AUMF when testifying at a Senate Armed Services Committee hearing.  According to the Pentagon legal experts, “the broad interpretation of the AUMF [] gives them the flexibility to deal with the changing threat in a lawful, effective manner.”  Members of the Committee disagreed with the broad authorization assessment, yet no specific solutions were suggested.  Just weeks after that Senate Committee hearing, the President called for a repeal of the AUMF referring to it as the “perpetual war” law.  What he did not call for, however, was a deadline by which to repeal it.  Probably not a calculated risk, but not addressing the “perpetual war” law was a good move in hind-sight.

Obama IS Announcement

In recent months, the Commander in Chief appeared to be relying on his Article II powers to prosecute the limited campaign against IS targets in Northern Iraq.  This was evidenced by the multiple War Powers Resolution letters sent to Congress keeping them informed.  Relying on this authority for the limited strikes and in light of several AUMFs being considered, if not avoided, in Congress in the run up to the President’s speech, it was no doubt quite a surprise when the President claimed he already had the necessary authority to prosecute a sustained campaign against IS.  Experts question why the President did not insist first on Congressional support, but the President has been down that road only a year earlier when Congressional support for action against Assad’s Syrian regime for their use of chemical weapons on their own citizens was clearly, and embarrassingly, unobtainable.

The President’s justification for waging sustained conflict against IS, reliance on the 2001 AUMF, is a stretch indeed.  But it is plausible.  According to the language of the AUMF, the President determines those persons or organizations that participated in the 9/11 attacks.  That was clearly al Qaeda.  Since that time, the President has retained authority to use that AUMF to attack al Qaeda affiliates in South Asia, the Arabian Peninsula, and Africa.  The stretch, albeit a plausible one, is identifying IS as an al Qaeda affiliate or at least something that was at one time an affiliate of al Qaeda.  IS was born of al Qaeda in Iraq and only recently did Ayman Zawahiri disavow IS.  This same organization, regardless of name, attacked US forces in Iraq during the Iraqi war and continues to carry on the legacy of the former al Qaeda leader, Osama bin Laden.

In the end, the point may be moot if the President can get the Congressional authorization he very much wants, but is very reluctant to ask for.

Clark Smith is a third-year law student pursuing a concentration in International Law. He has undergraduate and graduate degrees in Political Science and International Relations. In addition to being a Student Fellow, he is the Submissions Editor for the Journal of International Law. His previous experience includes work in both security and policy and his previous overseas postings include Western Europe, the Balkans, the Middle East, and South Asia. His professional interests include international development.