Defense Secretary Ash Carter meets with Turkish Defense Minister Fikri Işik during a U.N. Peacekeeping Ministerial meeting at Lancaster House in London, Sept. 8, 2016. DoD photo by Air Force Tech. Sgt. Brigitte N. Brantley

Last week, I wrote that three recent developments involving U.S. military forces in Syria may trigger an “international armed conflict” between the United States (and its co-belligerents) and Syria (and its co-belligerents). I discussed why these actions could satisfy even a narrow legal view of what it takes to initiate such an armed conflict. Of course, a more expansive legal view—a position which is notably held by the International Committee of the Red Cross—would make this an even easier case. This topic—whether an international armed conflict already exists in Syria—has significant implications for a range of military actions (just take a look at Professor Dapo Akande’s useful post over at EJIL Talk tomorrow).

I want to drill down on one of the elements in this analysis: Turkey’s incursion into northern Syria—Operation Euphrates Shield.

I am motivated to elaborate on this point, in part, due to a criticism from Professor Deborah Pearlstein over at Opinio Juris, in which she expresses major doubt about my analysis. I believe Deborah’s criticism is unfounded. She writes:

“[T]he Turkish operation was, like all stated U.S. operations in Syria, aimed (in different ways) at various non-state actors in theater. And while Syria expressly objected to Turkey’s operation, I have found no mention of Syria’s objection to the U.S. role in the operation. In all events, there is no indication that either Turkey or U.S. forces engaged in hostilities against Syrian forces in those operations.”

Let’s break down this analysis.

First, does Euphrates Shield trigger an “international armed conflict” under common Article 2 of the Geneva Conventions, which, by definition, includes “all cases of partial or total occupation of the territory” of another State?

The facts:

(1) Turkey is reportedly in effective control (has established and exercised authority) over several villages and towns in northern Syria. A Turkish military official told CNN, “The Jarablus-Azaz line is totally under the control of FSA (Free Syrian Army) backed by coalition forces.” To get a sense of it, the territory under Turkish control reportedly includes a land mass similar in size to Rhode Island and now holds a population in the tens of thousands (see graphic from Turkey’s Anadolu Agency).

Anadolu Agency photo

Continue Reading »

Just Security has hosted a number of interesting exchanges over the last week concerning the international and political implications of identifying the existence of an armed conflict. Ryan Goodman noted the international legal benefits that might attach to identifying the existence of an “international armed conflict” between the US and Syria, and discussed the political repercussions that nevertheless deter Presidents from describing a conflict as “war.” Ryan and Michael Adams took issue with the received orthodoxy on the threshold for the existence of a non-international armed conflict (or NIAC, meaning a conflict with a non-state armed group such as ISIL) and Adil Haque proposed an extremely low standard constrained only by the organized armed group’s “capacity to sustain military operations.” All are laudably focused on the protective benefits that accrue as a matter of international law to applying the rules and enforcement mechanisms of International Humanitarian Law — often referred to in the U.S. as the law of armed conflict — to such scenarios.

Yet beyond the political and international legal ramifications to identifying a state of war or armed conflict, there are significant domestic legal consequences which flow from, and may influence decisions regarding, the determination that an armed conflict exists. First, to Ryan’s point that political ramifications of identifying actions against Syria, or any state, as “war” may hinder President’s from doing so, I would add that the use of that term raises domestic legal consequences for the separation of powers between the President and Congress. Second, in response to arguments favoring a lowered threshold for determining the existence of a non-international armed conflict, I highlight some significant domestic dangers as well. The U.S. President relies upon the existence of an armed conflict for a host of domestic powers to take actions that domestic law would otherwise prohibit in the absence of such a conflict. Lowering the threshold for determining the existence of an armed conflict thus lowers the threshold for the use of those powers.

I. Domestic legal consequences of asserting a “war” with Syria  Continue Reading »

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

As a life-long observer of Russia, I have never been as concerned as I am now on the state of Russian-American relations.

During the Cold War, the two sides opened up lines of communications that identified, broadened and deepened areas of common interests. Global stability was ultimately maintained on the basis of hard earned mutual understanding that conflict was in neither side’s interests.

That lesson of history seems to have been forgotten today.

What the US sees as being stabilizing to global order, Russia sees as being destabilizing. What the US regards as being destabilizing behavior, Russia assesses as being stabilizing. This fundamental disagreement is not tactical; it is strategic. It is not based on expediency; it is based on principle. As such, a dangerous zero sum game pattern has emerged as US and Russia make moves and countermoves that mimic practice during the Cold War. Continue Reading »

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

IRAQ

The long-awaited operation to retake the Iraqi city of Mosul from the Islamic State has begun, Iraq’s prime minister announced early this morning. [AP]

Kurdish forces began advancing on villages east of Mosul this morning, officials said, with the US providing aerial support. Around 4,000 Kurdish Peshmerga troops are involved in the campaign, Michael R. Gordon and Tim Arango report at the New York Times. Peshmerga officers said they expected to be joined by Iraqi forces in a couple of days, helping them to secure their gains and ultimately push toward Mosul itself.

Seven villages have been seized by Peshmerga forces so far, Bonnie Malkin and Damien Gayle report at the Guardian, providing live updates on the operation.

The Islamic State experienced fraying support and disarray ahead of the Mosul operation, residents and Iraqi intelligence officials observed. Tamer el-Ghobashy and Ali A. Nabhan report at the Wall Street Journal.

Turkish forces will not allow sectarian violence in Mosul, Turkey’s President Erdoğan said. [CNN Turk]

Questions about the future of Mosul are coming thick and fast now that the battle to liberate the city is underway, amid concerns that each faction involved in the fight holds opposing views about what happens next, Beverley Milton-Edwards writes at Al Jazeera.

A suicide bombing targeting security forces outside Baghdad killed at least nine people today, the AP reports.

Another suicide bomber killed at least 32 people at a crowded market in Baghdad Saturday, the Islamic State claiming responsibility, NPR’s Merrit Kennedy reports.

SYRIA

Syrian rebels backed by Turkey captured the symbolically important village of Dabiq from the Islamic State, reports Reuters.

The loss of Dabiq, prophesized location of an “apocalyptic battle,” is a “blow” to the Islamic State, but the more serious threat of Armageddon for the terrorist group comes in the form of the continued loss of territory it has experienced this year, writes James Denselow at Al Jazeera.

Support for military intervention in Syria is weak, Secretary of State John Kerry and UK Foreign Secretary Boris Johnson said yesterday following a meeting in London of 11 governments opposed to Syrian President Assad’s rule, though both men insisted that all options were still on the table. The AP’s Bradley Klapper reports. Continue Reading »

I.  Law of Armed Conflict

• Michael J. Adams and Ryan Goodman, De Facto and De Jure Non-international Armed Conflicts: Is It Time to Topple Tadić? (Thursday, Oct. 13)
• Adil Ahmad Haque, Between the Law of Force and the Law of Armed Conflict (Thursday, Oct. 13) 
• Sean Watts, International Law and Proposed U.S. Responses to the D.N.C. Hack(Friday Oct. 14)
• Terry Gill  Letter to the Editor from Professor Terry Gill on Classification of International Armed Conflict (Friday Oct. 14)

II. International Criminal Court and Burundi Withdrawal

• Alex Whiting, If Burundi Leaves the Int’l Criminal Court, Can the Court Still Investigate Past Crimes There? (Wednesday, Oct. 12)

III. Surveillance, Privacy, and the Microsoft Ireland Case

• Jameel Jaffer, “A First Amendment in the Digital Age”—Peter Zenger Lecture (Tuesday, Oct. 11)
• Jennifer Daskal, Hot off the Presses: DOJ Rehearing Petition in the Microsoft Ireland Case (Full Text) (Thursday, Oct. 13)
• Jennifer Daskal, The Dangerous Implications of the Microsoft Ireland Case (Friday, Oct. 14)

IV.  China and North Korean Nuclear Program

• Sun Zhe, China’s “Strategic Impatience” on the North Korean Crisis (Wednesday, Oct. 12)

V.  Iraq and ISIS

• Belkis Wille, How Retaking Mosul Could Spell Disaster for Civilians (Friday, Oct. 14)

VI.  Saudi-led Operations in Yemen

• Ryan Goodman, Full Text: Saudi-Led Coalition’s Statement of Explanation on Funeral Hall Bombing in Yemen (Saturday, Oct. 15)

VII. Syria and the Law of Armed Conflict

• Beth Van Schaack, 5 and Counting: Russia Vetoes No-Fly-Zone in the Security Council
  (Monday, Oct. 10)
• Ryan Goodman, Is the United States Already in an “International Armed Conflict” with Syria? (Tuesday, Oct. 11)
• Ryan Goodman, Why French President’s Threat of War Crimes Prosecutions against Russia, Syria Rings Hollow—But Needn’t (Tuesday, Oct. 11)
• Gabor Rona, Letter to the Editor: Not So Fast on Calling it an “Armed Conflict” Between the US and Syria (Thursday, Oct. 13)

On Saturday, an investigation team with the Saudi-led coalition operations in Yemen released a statement explaining its findings of the reasons that led to the coalition’s bombing of a funeral home last weekend. Earlier this week, Brig. Gen. Ahmed al-Asiri, a spokesman for the Saudi-led coalition, had initially stated that the coalition had not carried out any strikes near the funeral hall. The military strike resulted in more than 140 people dead and more than 525 wounded, according to early reports. [Update: According to Human Rights Watch, the munition used in the strike was as a US-manufactured air-dropped GBU-12 Paveway II 500-pound laser-guided bomb.] The full text (English-version) of today’s statement by the coalition’s investigation team — the Joint Incidents Assessment Team (JIAT) – is below.

Notably, on Friday, a senior U.S. official told reporters that “the strike on the funeral was really, really hard to swallow. I mean, we thought that that was particularly egregious.” In the same briefing for reporters, a second senior U.S. official stated: “We just thought there was absolutely no justification for the strike. It sort of pales next to anything else that had been done before, and as a result, there was a consensus that we needed to look at the full scope of the assistance that we provide to the coalition that impacts the war, and so that’s what we have underway.”

According to the JIAT statement, the strike was the result of two problems:

1. Intelligence failures: “JIAT has concluded that a party affiliated to the Yemeni Presidency of the General Chief of Staff wrongly passed information that there was a gathering of armed Houthi leaders in a known location in Sana’a.”
2. Rules of engagement failures: “The Air Operations Center in Yemen directed a close air support mission to target the location without obtaining approval from the Coalition command to support legitimacy and without following the Coalition command’s precautionary measures to ensure that the location is not a civilian one that may not be targeted.”

At Just Security, we have been closely following the issue of US and UK support for the Saudi-led coalition. Stay tuned for legal analysis of these developments.

Press Statement by the Joint Incidents Assessment Team (JIAT) on the Great Hall Incident in Sana’a

Riyadh, Muharram 14, 1438, Oct 15, 2016, SPA — The Joint Incidents Assessment Team (JIAT) initiated an investigation into the October 8th 2016 ceremony hall bombing immediately after it sadly occurred. The Coalition Forces Command have fully cooperated with this investigation.

In a statement to Saudi Press Agency (SPA), JIAT examined all related documents, and assessed evidence, including the rules of engagement (ROEs) and the testimonies of concerned personnel and those involved in the incident. JIAT has concluded that a party affiliated to the Yemeni Presidency of the General Chief of Staff wrongly passed information that there was a gathering of armed Houthi leaders in a known location in Sana’a, and insisted that the location be targeted immediately as a legitimate military target.

The Air Operations Center in Yemen directed a close air support mission to target the location without obtaining approval from the Coalition command to support legitimacy and without following the Coalition command’s precautionary measures to ensure that the location is not a civilian one that may not be targeted. A Coalition aircraft in the area carried out the mission, which resulted in several deaths and injuries.

JIAT has found that because of non-compliance with Coalition rules of engagement (ROEs) and procedures, and the issuing of incorrect information a Coalition aircraft wrongly targeted the location, resulting in civilian deaths and injuries.

JIAT has therefore concluded that appropriate action, in accordance with Coalition regulations, must be taken against those who caused the incident, and that compensation must be offered to the families of the victims. Moreover, Coalition forces must immediately review their rules of engagement (ROEs) and update their procedures to ensure adherence in future.

JIAT is still gathering and analyzing data related to the incident, namely reports about some sides that used this erroneous bombing to increase the number of victims, in coordination with the relevant agencies of the legitimate Yemeni government and concerned states, and will announce the results as soon as its investigations are complete.

–SPA
12:28 LOCAL TIME 09:28 GMT

Yesterday evening, the government filed its petition for rehearing or rehearing en banc in the Microsoft Ireland case. Throughout the brief, the government warns of both the crippling effect on law enforcement investigations and the sowing of chaos among service providers. And while such parade of horrible claims should always be viewed with a skeptical eye, this time I am convinced. Or at least convinced that the Second Circuit opinion creates a bigger problem than I had previously acknowledged or understood.

As anyone who is reading this undoubtedly knows, the Second Circuit’s opinion limits the government’s warrant authority under the Stored Communications Act (SCA) to data that is held within the United States. If a US-based service provider stores communications content outside the United States, the US government can no longer compel the production of that data directly from the provider. It instead must seek the data from the country where it resides—making a diplomatic request through the time-consuming and often laborious the Mutual Legal Assistance (MLA) process.

I had long assumed that this would limit the government’s ability to access data from a company like Microsoft, which tends to house its users data in particular, identifiable data centers. It can readily distinguish between, say, US-held and Irish-held data. Hence, the lawsuit. Continue Reading »

After over two grueling years living under the control of the Islamic State (ISIS), Mosul’s 1.2 million civilians may  suffer yet more abuse when the government tries to retake the city if recent lessons from the operations to retake Fallujah, Tikrit and other areas are any guide. To avoid this scenario, the US, other international forces, and the government in Baghdad should prevent abusive forces from entering Iraq’s second-largest city during and after the military operation.

Just take a look at past operations against the extremist group in Iraq to see why. Most recently, in the May-June battle to retake Fallujah, members of the Badr Brigades and Hezbollah Brigades (two powerful units within the Iraqi government’s Popular Mobilization Forces), and, in at least one instance, Iraqi federal police officers, detained and beat men fleeing the fighting, summarily executed and forcibly disappeared others, and mutilated corpses.

The disappearances took place as the armed units working with the government forces and the police separated men from their families at checkpoints, as well as in mass roundups in certain suburban neighborhoods. The abuses in Fallujah followed numerous earlier allegations of widespread abuses during the government’s anti-ISIS operations, including destruction of homes by the Popular Mobilization Forces in Tikrit, and Amerli. All of the operations to retake territory from ISIS were supported by US-led coalition airstrikes.

Prior to the Fallujah operation, Prime Minister Haider al-Abadi, the Badr leader, Hadi al-Amiri, and the US-led coalition spokesman, US Army Col. Steve Warren, all gave assurances that the Popular Mobilization Forces would not be entering Fallujah, given their record of abuse. But there they were. Continue Reading »

Firstly, many thanks to Professor Adil Haque for reading my piece and for his thoughtful comments on it, both favorable and less so. Let me briefly reply to some of the points he raises.

If a State intervenes on another’s State’s territory with its consent it is, as Prof. Haque says, fair to assume there is no conflict between them. If it does so without its consent, it does not follow that a conflict necessarily exists. The ICRC commentary to me seems to clearly imply that any non-consensual intervention automatically constitutes an armed conflict simply because it is non-consensual. Consent or lack of it is an ad bellum issue to my mind and says nothing about whether actual hostilities occur or don’t. This is the reason behind my first two reasons put forward in my article. If lack of consent automatically implies a conflict, then it is hard to escape the impression that the ICRC sees it as decisive. So the distinction Prof. Haque put forward between a violation of sovereignty or an intrusion into the territorial State’s sphere of sovereignty is to me a distinction without much—indeed any—difference. My point is that an intrusion or violation of sovereignty in itself does not determine whether conflict between them exists. If that were the case, any unlawful aerial incursion would seemingly trigger an armed conflict. That would be hard to defend considering the frequency at which such incursions occur. Continue Reading »

US Army’s CyberCenter of Excellence – Wikimedia Commons

In a short essay in Foreign Policy, retired Admiral James Stavridis addresses recent election season cyber operations against the Democratic National Party that the U.S. has attributed to Russia. ADM Stavridis sketches five potential responses that he estimates would demonstrate U.S. willingness to “respond with a firm hand.”

His proposals implicate a broad range of issues, not least of which is whether, as a technical or political matter, any of them would actually prevent or deter these hacks. ADM Stavridis’s fourth proposal is especially intriguing. It suggests:

“the United States could use its own offensive cyber-tools to punish Russian hackers by knocking them off-line or even damaging their hardware. This response would be open to objections that it represents an unwarranted escalation. But under prevailing international law, if a nation has information of a nexus of offensive activity, has requested it to stop, and the offending nation declines to do so, that offensive center is liable for attack. The burden of proof for attribution would be higher in crafting such a response; it would be viable only if Washington had definitive information on the command and control centers that launched the hacking activity.” (emphasis added)

In addition to important issues for technicians, tacticians, and policymakers to consider, the proposal gives international lawyers a lot to think about.

A first legal consideration concerns the proposal’s purpose. As a response to perceived illegal activity by another State, the proposal sounds like what international law might call a countermeasure. Countermeasures are acts by a victim State (and only that State) against another State that would ordinarily be unlawful but are justified as responses to the offending State’s unlawful activity. Because of their potential to disrupt international peace and security, self-help methods such as countermeasures are subject to important limitations. With respect to the proposal, it is critical to clarify that the only lawful purpose for a countermeasure is to induce the offending State to cease its unlawful activity. Punishment, retribution, and for that matter, securing strategic advantage are not permissible purposes for countermeasures. To justify the proposal as a countermeasure, the U.S. would have to undertake it for the primary purpose of simply convincing Russia to cease unlawful hacks rather than “to punish.”

A second legal consideration concerns how to characterize the alleged Russian hacks. International law offers a menu of potential characterizations but the most appealing here are that the hacks amount to either a prohibited intervention in the internal affairs of the U.S. or an unlawful violation of U.S. sovereignty. That the hacks implicate the political process of the U.S. makes intervention an initially attractive characterization. Interference with another State’s system of internal governance is a classic example of prohibited intervention. Yet to amount to a prohibited intervention, interference must reach a matter committed exclusively to another State’s prerogative and it must be coercive. That is, the operation must force the target State into a course of action it would not otherwise undertake (and some might say, is powerless to prevent). That said, if a State were to hack election results of another State, a clearer case for prohibited intervention might be made—especially if the victim State were to swear-in the wrong candidate. In the case of the D.N.C. hacks, however, it is not overwhelmingly clear that the U.S. has been coerced in any significant respect (or at least not yet?). Although the prohibition of intervention is longstanding, States have not done much to clarify precisely where this threshold of coercion lies. Continue Reading »