counter-terrorism

New ECtHR judgment on terrorism legislation and respect for private life: is Beghal v UK the conclusion to an old chapter, or the beginning of a new one?

/ Marie Davoise / Leave a comment

On 28 February 2019, the European Court of Human Rights gave its judgment in Beghal v United Kingdom, in which it unanimously held that there had been a violation of Sylvie Beghal’s right to respect for private and family life, enshrined in Article 8 of the European Convention on Human Rights (“ECHR”).

The case concerns the power of police to stop and question travellers at ports and airports in Britain without the requirement for reasonable suspicion.

This post will provide a short description of the facts of the case and briefly set out the legal arguments put forward by both sides. It will then argue that, as some areas of the current terrorism legislation remain largely untested (e.g. power to seize sensitive electronic information outside the journalistic context), and with the introduction of new powers in the recent Counter-Terrorism and Border Security Act 2019, Beghal is unlikely to be the end of the story on no-suspicion stop and question powers.

The facts in Beghal

The applicant, Sylvie Beghal, is a French national living in Leicester, United Kingdom. On 4 January 2011, she arrived at East Midlands Airport following a visit to her husband, Djamel Beghal, who is in prison in France for terrorism offences. Upon arrival, she was stopped under the infamous Schedule 7 of the UK Terrorism Act 2000, a piece of counter-terrorism legislation which gives British police and immigration officers the power to stop, search and question passengers at international points of border-crossing (ports, airports and international rail terminals).

Such powers are to be exercised for the purpose of determining whether the person “appears to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism” – and can be exercised without any suspicion of involvement of terrorism. If someone fails to co-operate he or she is deemed to have committed a criminal offence and could face up to three months in prison, a fine or both.

After being stopped, Sylvie Beghal was taken to an interrogation room and given the opportunity to call a lawyer. She was searched, and her luggage was searched too. She was told that she was not under arrest, but would be questioned under Section 7. She told the officers that she would only answer questions after her lawyer arrived, but the lawyer took a few hours to arrive and the officers started the examination. Thereafter, she was asked a number of questions about her family, her financial circumstances and her recent visit to France. She refused to answer most of those questions. She was later charged with wilfully failing to comply with a duty under Schedule 7.

Legal arguments: was the interference ‘in accordance with the law’?

The fact that there had been an interference with Ms Beghal’s right to respect for private life was not contested by the UK Government. The question, therefore, was whether such an interference was “in accordance with the law”.

The applicant argued that it was not in accordance in the law, because the powers under Schedule 7 were not sufficiently circumscribed and did not provide adequate safeguards against abuse:

  • The absence of any requirement for objective grounds for suspicion, or even subjective suspicion, meant that an officer could exercise powers based on no more than a hunch, which in turn gave considerable scope for extraneous factors and motives – such as biases and ingrained stereotypes – to influence how an officer selected individuals to stop and question.
  • In Gillan and Quinton v UK, sections 44 and 45 of the 2000 Act (which set out a power to stop and search exercisable in relation to any person anywhere in the street), had already been held not to be in accordance with the law despite having a narrower purpose and scope of application, and despite not allowing as intrusive a search as the one permitted under Schedule 7.
  • The Code of practice in force at the time of the applicant’s examination did not tell examining officers how to determine whether the exercise of Schedule 7 powers was proportionate, nor did it require them to keep to a minimum all interferences with fundamental rights.
  • Although individuals were entitled to consult a solicitor, that did not prevent arbitrary selection in the first place, and in any case officers were permitted to interrogate a person in the absence of their solicitor anyway (which is what happened to Sylvie Beghal).
  • There was no requirement for officers to explain the reasons why a particular individual has been selected for examination, and no obligation to record such reasoning either.
  • Because the lawful exercise of the powers was not conditional on any suspicion (reasonable or otherwise), the scope for using judicial review proceedings to challenge the decision was extremely limited.

The Government argued the following:

  • The power was focussed on entry and exit points to the United Kingdom, which were the first line of defence against the entry and exit of terrorists, and as such they provided a unique opportunity to target checks where they were likely to be the most effective.
  • There were sufficient effective safeguards in the operation of the scheme to meet the requirements of legality. The Government cited a list of factors demonstrating the existence of such safeguards, such as the restriction on the duration of the interview and on the type of search, the availability of judicial review, and the continuous supervision of the scheme by an Independent Reviewer.
  • There was no evidence that the powers had been used in a racially discriminatory fashion, and such a use was expressly prohibited by the Code of Practice.

The Court found that the legislation in force at that time had not been sufficiently circumscribed, nor were there adequate legal safeguards against abuse. In particular, people could be subjected to examination for up to nine hours and compelled to answer questions without being formally detained or having access to a lawyer.

To reach this conclusion, the Court considered the following factors:

  1. Geographic and temporal scope of the powers: The Court found that the wide scope of application of Schedule 7 (applying at all ports and border controls) did not in itself run contrary to the principle of legality. Consideration was also given to “the very real threat that Contracting States face on account of international terrorism” and the need to control international movement of terrorists.
  2. Discretion afforded to the authorities in deciding if and when to exercise the powers: The existence of a requirement of reasonable suspicion is an important factor in assessing the lawfulness of a power to stop and question or search a person, but the lack of such a requirement does not in itself render the exercise of the power unlawful. The Court gives Member States a wide margin of appreciation in matters relating to national security, and noted that there was clear evidence that the Schedule 7 powers have been “of real value in protecting national security”. Interestingly, the Court seemed to make a case against the requirement for reasonable suspicion, by pointing out that such a requirement could actually lead to terrorists avoiding the deterrent threat of Schedule 7 “by using people who had not previously attracted the attention of the police (“clean skins”)” and noting that “the mere fact of a stop could alert a person to the existence of surveillance”.
  3. Any curtailment on the interference occasioned by the exercise of the powers: Individuals could be subjected to examination for up to 9 hours, without any requirement of reasonable suspicion, without being formally detained, and without having access to a lawyer. The only ‘curtailment’ at the time of the applicant’s examination was therefore this 9-hour time limit.
  4. Possibility of judicial review: The Court found that the absence of a requirement of suspicion made it difficult to challenge the lawfulness of the decision to exercise Schedule 7 powers.
  5. Independent oversight of the use of the powers: The use of the powers is subject to independent oversight by the Independent Reviewer of Terrorism Legislation. Although the Court noted the Reviewer’s important role in providing unbiased, scrutinised oversight, it found that such oversight was not capable of compensating for the otherwise insufficient safeguards applicable to the operation of the Schedule 7 regime (noting, for example, that a number of important recommendations had not been implemented by the UK Government).

Do recent changes to Schedule 7 powers make Beghal v United Kingdom moot?

The writing had been on the wall for the most extended of Schedule 7 powers long before the Court’s judgment in Beghal v United Kingdom. The powers were facing a number of legal challenges and, in 2013, the UK Supreme Court raised serious concerns about the potential for “serious invasions of personal liberty” due to a lack of safeguards.

As a result, in 2014 significant changes were made to Schedule 7 with the aim of reducing the potential scope for interference with individuals’ rights while retaining operational effectiveness. This included limiting the maximum period of interview from 9 hours to 6 hours, providing for specific training for officers, and providing for specific protection for information benefiting from attorney-client privilege or journalistic material.

In the 2016 Miranda judgment, although the exercise of the Schedule 7 stop power in relation to Mr Miranda was deemed lawful, the Court of Appeal found that the stop power, if used in respect of journalistic information or material, was incompatible with Article 10 of the ECHR (freedom of expression) as it was not prescribed by law.  Again, judges warned that Schedule 7 appeared too arbitrary and lacked safeguards.

It would be easy to dismiss Beghal v United Kingdom as moot: Britain has changed its law since the relevant events occurred, hasn’t it? Indeed, throughout the judgment, the Court confirms it has only had regard to the Schedule 7 power to examine “as it was at the time the applicant was stopped” (see paragraph 110).

The UK Government is likely to argue that any flaw in the legislation has been remedied already, but the rest of paragraph 110 tells another story: “[The Court] has not considered the amendments which flowed from the Anti‑Social Behaviour, Crime and Policing Act 2014 and the updated Code of Practice; nor has it considered the power to detain under Schedule 7, which has the potential to result in a much more significant interference with a person’s rights under the Convention” (emphasis added).

This warning wasn’t lost on former Independent Reviewer David Anderson QC, who noted on Twitter: “the end of paragraph 110 contains a significant sting in the tail, flagging for future attention the use of more advanced no-suspicion powers not used in this case, e.g. to detain and to download devices”.

Data mining of electronic devices under Schedule 7 remains largely untested

In 2017, Muhammad Rabbani, the director of campaigning group Cage, was prosecuted after refusing to hand over the passwords of his mobile phone and computer when stopped by police at Heathrow Airport.

The case escalated to the Court of Appeal, with Rabbani’s lawyers relying on the Miranda precedent to argue that the protection owed to journalistic material applied to other categories of protected information. This argument was dismissed by the Court of Appeal, with Lord Justice Irwin noting that the Miranda decision was “expressly and narrowly” centred on Article 10 of the ECHR and freedom of expression for journalism, and that it was “by no means self-evident that identical or (or even similar) considerations arise in respect of other categories of excluded or special procedure information”.

Following the Court of Appeal decision in May 2018, Rabbani said he would appeal the decision at the UK Supreme Court. In an era where phones and computers give individuals the means of carrying a large number of potentially sensitive documents, the case raises important questions regarding the right to privacy and the limits of data mining of electronic devices in the name of counter-terrorism.

Regulating the retention of electronic data downloaded from devices is something that was indeed on the radar of Britain’s terrorism watchdog. In his most recent report dated October 2018, then Independent Reviewer Max Hill QC notes a sharp drop in the number of port stops: from 60,000 in 2012 down to approximately 16,000 in 2017. This remarkable trend is caused no doubt by multiple factors, “which must include better capture of passenger manifest data across the UK, and better use of targeting techniques, even though reasonable suspicion is still not required for a stop”.

But the numbers reveal something else: the proportion of detentions resulting from such examinations is rising. In 2012, around 1% of examinations led to detention. In 2017, a staggering 10.4% of examinations resulted in detention. Although this is not a particularly worrying pattern, and it might in fact simply be a result of rising efficiency in data capturing and targeting, the report nonetheless warns that “important questions remain, including the ongoing issue of satisfactory rules governing the retention of both biometric data taken from individuals and electronic data downloaded from their devices”.

New legislation enacted in February 2019: Schedule 7-type powers for non-terrorist ‘hostile acts’

Finally, one can expect renewed debate over no-suspicion stop and question powers in light of the new Counter-Terrorism and Border Security Act 2019 (the “2019 Act”), which was signed into law on 12 February 2019.

Defining ‘terrorism’ is always a tricky exercise. The 2018 Novichok poisonings in Salisbury, and the question of the perpetrators and their origin, or the question of state sponsorship, have inflamed the issue of what terrorism means – should counter-terrorism legislation include powers to deal with non-terrorist acts that nevertheless threaten the nation?

In reaction to this, the new 2019 Act provides a separate legal regime to deal with “hostile acts”, i.e. non-terrorist acts which threaten national security, threaten the economic well-being of the United Kingdom in a way relevant to the interests of national security, or constitute an act of serious crime. Schedule 3 of the 2019 Act provides for stop and question powers that the Government explicitly notes are “closely modelled on Schedule 7 of the Terrorism Act 2000”.

When it was still only a bill going through the parliamentary process, the 2019 Act was scrutinised by the relevant committee on human rights, which expressed concerns about the stop and search powers at ports and borders:

We expressed concern that Schedule 3 provides for interference with the rights to private life, freedom of expression, and property, yet the powers it gives are dangerously broad. In particular, the definition of ‘hostile act’ is extremely wide and there is no threshold test of suspicion required before a person is detained and examined. In its response, the Government acknowledges that the definition of hostile activity is broad but states that “it is required to encompass the spectrum of threats currently posed to the UK by hostile states, which includes espionage, subversion and assassination”. We would be grateful for more clarity of the Government’s position on the necessity of this ‘no suspicion’ power.

The committee suggested the insertion of a threshold of reasonable suspicion and a requirement that the exercise of the power must be necessary and proportionate. This fell on deaf ears, and the suggested amendments were not included in the draft bill (now the 2019 Act).

Conclusion

In conclusion, Beghal v United Kingdom is unlikely to be the end of the story in terms of challenges to counter-terrorism legislation. With the creation of new stop and search powers, and the unresolved question of the legality of the more advanced powers (such as the power to detain and search electronic devices), Britain would benefit from strong, independent oversight of its counter-terrorism legislation. Shame the position of Independent Reviewer of Terrorism Legislation has been vacant since October 2018, with no indication as to when the next ‘terrorism watchdog’ will be appointed and despite repeated calls from former reviewers.

 

 

The Legality of President Trump’s National Emergency Declaration

/ Milena Sterio / 3 Comments

On February 15, President Trump declared a national emergency, based on the immigration situation along our southern border.  President Trump plans to use the national emergency in order to access funds previously allocated to the Department of Defense (DoD) to build a border wall.  As most of our readers know, Congress has previously refused to allocate specific funds toward the construction of a wall; President Trump can bypass Congress and access DoD funds which have not been earmarked for another specific purpose through emergency powers. The purpose of this post is to discuss the legality of such a presidential emergency declaration – in light of immigration data itself, and under both constitutional law as well as under federal statutes.  For previous posts about this topic, see this excellent compilation on Just Security.

President Trump has claimed that the immigration situation along our southern border is one constituting a national emergency, because of high numbers of immigrants attempting to enter the United States, but also because of such immigrants’ ties to terrorism and/or the drug trade.  Immigration data does not support this claim.  Net immigration numbers have been steady, and the number of border apprehensions along our southern border is at a historically low number.  In fact, in 2000, the Customs and Border Protection (CBP) had apprehended roughly 1.6 million individuals along the southern border; that number is down to slightly below 400,000 in 2018, and to roughly 300,000 in 2017.  In addition, the number of undocumented aliens in the United States has been steady, at around 10.7 million.  Out of thousands of suspected terrorists who have entered or attempted to enter the United States, only a handful have done so by land.  And the vast majority of illegal drugs enter the United States through legal ports of entry, and are not carried by illegal immigrants who attempt to enter by land, through our southern border, by walking across the desert and swimming across the Rio Grande.  Thus, actual data does not support President Trump’s assessment of immigration at our southern border.

Under the United States Constitution, the President is the commander-in-chief and has inherent constitutional authority to act.  Presidential powers are not unlimited however.  In the famous Youngstown case (1952), the Supreme Court held that President Truman did not have inherent constitutional authority to seize the operation of steel mills during the Korean War, because Congress had not authorized him to do so.  Justice Jackon, in his concurring opinion, wrote that when the president acts in direct contravention of congressional wishes, his power is at its “lowest ebb.”  The Youngstown precedent may be problematic for the Trump Administration: it may be argued that Congress has specifically refused to authorize funding for the border wall, and that the President is acting against Congressional wishes, so that his power would be at its “lowest ebb.”  Under this paradigm, President Trump’s actions may not be upheld as constitutional. Some have argued, however, that the President’s actions may be validated by the current conservative majority of the Supreme Court, in light of a subsequent Supreme Court case, Dames & Moore (1981).  In Dames & Moore, the Supreme Court upheld President Carter’s and President Reagan’s presidential actions to implement the Algiers Accords, ending the Iranian hostage crisis, which consisted of lifting sanctions against some Iranian assets in the United States, suspending litigation against Iran in U.S. courts, and funding the Iran-United States Claims Tribunal.  In this case, the Supreme Court found that the President had constitutional authority to act because Congress had implicitly authorized this particular presidential action.  Thus, some have argued that the Supreme Court is likely to defer to the executive branch, following its Dames & Moore precedent, because Congress has implicitly authorized wall construction, through the 2006 Secure Fence Act, which authorized the construction of fencing along some points of our southern border.  It may be argued that the Secure Fence Act did not provide congressional acquiescence toward the construction of a lengthy wall along the entire border, but that the act instead authorized limited fencing at concrete points of our border.  Thus, it may be argued that Congress did not implicitly authorize wall construction.  Nonetheless, it is difficult to predict how the Supreme Court would rule on this issue; the Court would be likely to split along its conservative/liberal membership.

Under federal law, Presidents can declare emergencies under the National Emergencies Act of 1976.  Pursuant to this Act, a President has to inform Congress about the emergency, and has to identify which other statutes that have emergency provisions in them the President plans to rely upon.  Since the Carter era, 31 emergencies have been declared by our presidents.  According to the Brennan Center for Justice, there are 123 statutes with emergency provisions embedded in them; out of these statutes, two are relevant in this situation.  Section 2808, Title X, provides that in case of a national emergency which requires the use of armed forces, the Secretary of Defense may undertake the construction of military projects necessary to support such armed forces.  Such construction projects may be undertaken using funds previously allocated to the DoD, which have not been earmarked for another specific purpose.  It is not at all clear that immigration enforcement along the southern border requires the use of armed forces.  In fact, immigration enforcement is a civilian function, accomplished through Immigration and Customs Enforcement and CBP.  Moreover, it is not clear that the construction of a wall is necessary to support armed forces.  Even if armed forces were required for immigration purposes on the border, they could be supported through technology, civilian human resources, weaponry, etc.  Thus, it is not certain that Section 2808 applies in this situation and a court, including the Supreme Court, could decide not to validate President Trump’s reliance on this law.  In addition, Section 2293, Title 33,  provides for reallocating funds for civil works during national emergencies. Similar to section 2808, this provision applies to any national emergency that “requires or may require use of the Armed Forces,” meaning it would raise the same legal issues as those described above. In addition, this provision allows the DoD to reallocate funding between already authorized projects, but not to undertake new, unauthorized ones.  And, this section only allows for projects which are “essential to the national defense.”  It is uncertain that the construction of a wall is essential to our national defense.  Moreover, even if this section were used, it is unclear how much funding President Trump could access, because section 2293 simply allows for the reprogramming and reallocation of existing funds, which may be insufficient for wall construction.  In sum, it is uncertain whether President Trump has the requisite statutory authority to implement his emergency declaration, as both of the sections discussed above can be interpreted as not authorizing the construction of a thousand-mile wall along our entire southern border.

While it is difficult to predict what will happen, it is certain that legal challenges are on the way.  Multiple groups, including state attorney generals and the ACLU have indicated that they will sue the Trump Administration.  And it is likely that the legal challenge will end up before the Supreme Court.  The fate of a border wall is uncertain for now, and the Trump Administration may be on shaky legal ground.

The Role of Mercy in India

/ Shubhangi Agarwalla / Leave a comment

There has been such a sustained focus on the right to impose death that it sometimes eclipses its essential corollary, namely the sovereign right to spare life. In India’s modern political system, this power to spare life remains in the form of executive clemency. Executive clemency, enumerated in Article 72 of the Indian Constitution, represents an escape valve where officials unaffiliated with the judiciary can survey the landscape and make decisions on factors beyond the law. Thus, the most logical use of clemency powers is when an individual wrongly convicted, can demonstrate that the system failed or that they are innocent. Critics, however, have argued that this conflicts with the demands of justice and equality, demands a liberal state presumably must heed. Due to mercy’s arbitrary and capricious nature, the state, they argue, should be lawful, not merciful. A study of the mercy petitions rejected by various Presidents in recent history lends some merit to their argument since it reveals a trend of politicization of mercy.

For example, the rejection of Saibanna’s mercy petition came right after the December 16 gang rape; a time when the government needed a facile gesture to show that it was tough on crime against women. He had been sentenced to death for murdering his second wife and daughter after having been convicted for murdering his first wife, however his case was riddled with glaring judicial blunders from start to end. Both the trial court and the High Court convicted and sentenced Saibanna under s. 303 of the Indian Penal Code which provided for mandatory death sentence but had been struck down as unconstitutional some twenty years earlier. The Supreme Court took full notice of the s. 303 issue but then noted that the session’s court faulty finding did not prejudice the cause of the accused since there was no record of any mitigating circumstances.

However what the Court failed to consider was that in cases under s. 303 there is no sentencing hearing, and hence no opportunity to bring on record mitigating circumstances. Moreover, the Court squarely based its death sentence verdict on the erroneous view that Saibanna, already undergoing a life sentence, could not be sentenced to life imprisonment again, and therefore the death sentence was the only available punishment. Thus in effect, the Supreme Court revived mandatory death sentencing. So glaring were these errors that a campaign had been launched pursuant to which fourteen eminent retired judges of the High Court and the Supreme Court
wrote to the President asking him to commute these death sentences. They said that it would be unconscionable and a blot on the administration of justice to execute Saibanna whose petition had been pending for 25 years. These factors should have necessitated the commutation of the death sentence by a government with even an iota of respect for the rule of law. Continue reading →

A Double Standard for White Terrorists

/ Rebecca Ruth Gould / 1 Comment

Almost immediately after it emerged that a white supremacist had stabbed three men who were trying to prevent him from attacking Muslim women in a Portland train, killing two of them, efforts at mitigation began.

“We don’t know if he’s got mental health issues,” Sgt. Pete Simpson said in the first public statement about the May 26 incident. Added the perpetrator’s childhood friend, “All I have to say is I hope this brings attention to the need for mental health facilities and more outreach.” His mother struck a similarly apologetic note: “He’s always been spouting anti-establishment stuff but he’s a nice person.”

Inevitably, those close to the perpetrator tried to explain away the hate that drove this crime. Yet what this individual did was fundamentally a political act, and in a country where politicians are increasingly wary of condemning racially motivated violence. In his trial for the Charleston shooting, another white racist, Dylann Roof, made clear the real motives for his crime: “I don’t want anybody to think I did it because I have some kind of mental problem. I wanted to increase racial tension.”

An act of terror by a self-identifying Muslim would never have been treated as apologetically as have the Portland stabbings and the Charleston massacre. Compare these reactions to those following the Boston Marathon bombing and the San Bernardino massacre. Why the double standard? Why do we excuse the racist hate that led the Portland stabbings and the Charleston shootings?

Among the most frightening aspects of the Portland stabbings is that the perpetrator, Jeremy Joseph Christian, 35, was long known to police and others as someone who endorsed murderous acts. To his Facebook followers, Christian’s willingness to kill innocent people should come as no surprise. But the authorities turned a blind eye to the threats that fill Christian’s public posts.

As his Facebook posts demonstrate, Christian made numerous appearances at white supremacist rallies in recent months. He was a well-known member of the Portland community, not an outsider, an alien, or an immigrant. He delighted in his own notoriety, noting in one post how a local reporter called him “the Lizard King.”

On May 9, Christian wrote on his Facebook page (still online as of this writing): “I want a job in Norway cutting off the heads of people that Circumcize [sic] Babies….Like if you agree!!!” More than two dozen of Christian’s Facebook followers signified their approval. One vowed to set up a fund to support “Americas newest hero Jeremy Joseph Christian.”

Christian began verbally attacking two women on a train, one of whom was wearing a hijab. Police said he “began yelling various remarks that would best be characterized as hate speech toward a variety of ethnicities and religions.” When three men tried to intervene, he stabbed them. Two of them—Ricky John Best of Happy Valley, Oregon, 53, and Taliesin Myrddin Namkai Meche of Southeast Portland, 23—died from their injuries.

At a court appearance this week, Christian was defiant, saying, “You call it terrorism, I call it patriotism!”

Had Christian been deploying the rhetoric of ISIS on Facebook, he would have been under FBI surveillance. Why, then, are white supremacists allowed to threaten violence against innocents while authorities look the other way? Why are people still willing to make excuses when expressions of racist hate turn into racist action?

In stark contrast, Egyptian-American Tarek Mehanna was sentenced to seventeen years in prison exclusively on the basis of his association with jihadist ideology, and not for any specific act of violence. But whereas Mehanna was immediately incarcerated for his support of violence, Christian’s threats have been ignored, or tolerated, by the authorities. Like many white supremacists, the perpetrator of the Portland stabbings was regarded prior to his murders as merely a nuisance by authorities.

Like Christian, Mehanna supported an ideology that is associated with violence. Both ideologies must be condemned. Yet the point here is that Mehanna was imprisoned for his views, while white supremacists like Christian are all too often tolerated until blood is spilled.

The fight against racism is a battle that cannot be abdicated to others. It has poisoned this country and will continue to do so until white racism is taken as seriously as the terror that clothes itself in Islamic rhetoric.

I passed much of my adolescence on Portland’s streets. I attended poetry readings in Portland cafes and volunteered in soup kitchens, and hanging out in Powell’s, the country’s biggest bookstore. The violence of the past few days does not represent the Portland I know. However, it does represent a plausible future for a country increasingly driven by an ideology that must be actively resisted rather than silently condoned.

 

Cross-posted from The Progressive

Call for Papers: “Revisiting the Role of International Law in National Security”

/ Beth Van Schaack / Leave a comment

Many conversations in the U.S. about situations of armed conflict – within civil society, academia, and the U.S. government – center on “national security law,” often drawing primarily from domestic law and military perspectives.  International law is sometimes set aside in these discussions.   This workshop, now in its second year, aims to draw the international legal aspects of armed conflicts to the forefront of national security discussions.

The workshop – co-organized by the International Committee of the Red Cross’s Delegation in Washington, and faculty at Loyola Law School Los Angeles, Stanford Law School, and Cardozo School of Law – is for public international law scholars and practitioners.  It aims to drive discussions of public international law, including international humanitarian law, international human rights law and international criminal law, into conversations, in the U.S. in particular, on national security issues and situations of armed conflict.

The workshop will provide time to discuss scholarly articles that are in process, and provide a networking opportunity for participants.  The organizers are particularly interested in discussing scholarship and ideas that seeks to bridge partisan political divides while addressing both the law and national interests.

The organizers invite you to submit an abstract or draft of an article for discussion.  A small number of papers will be selected for discussion at the workshop.  The article does not need to be in final form – the hope is that participants will receive substantive feedback on works-in-progress.

When:  May 18th, 2017 (full day)

Where:  Cardozo Law School, New York City

Submissions:  Please send your name, current affiliation, and paper proposal to Tracey Begley, trbegley@icrc.org.

Deadline for submissions:  Monday, March 20, 2017   

A limited amount of travel funds may be available.

Co-organized by the International Committee of the Red Cross Delegation for the United States and Canada, and faculty at Loyola Law School Los Angeles, Stanford Law School and Cardozo Law School.

Support Jus Contra Bellum

/ Cecilia Marcela Bailliet / 1 Comment

Oliver Corten has a post on EJIL Talk!: (http://www.ejiltalk.org/a-plea-against-the-abusive-invocation-of-self-defence-as-a-response-to-terrorism/) in which he presents a plea against abusive invocation of self-defense within the context of counterterrorism operations.  I wrote about an emerging Responsibility to Prevent Terrorism doctrine after Colombia’s raid in Ecuador in which it targeted Raul Reyes (second in command of the FARC) in 2008.  Both the OAS and the Rio Group reaffirmed the principles of sovereignty,  abstention from the use of force, respect for the right of territorial integrity, and the duty of non-intervention.  Yet, they also agreed that there is a duty to act in a preventive and responsive manner to terrorism but highlighted that alternatives should be pursued within multilateral or bilateral frameworks.(See “The ‘Unrule of Law’: Unintended Consequences of Applying the Responsibility to Prevent to Counterterrorism, A Case Study of Colombia’s Raid in Ecuador” in C. Bailliet, Security: A Multidisciplinary Normative Approach Brill 2009).

Since then, there has been a steady trend towards supporting recognition of an exception to the prohibition of the use of force as the new rule.  Please read Corten’s plea and consider signing:  (http://cdi.ulb.ac.be/contre-invocation-abusive-de-legitime-defense-faire-face-defi-terrorisme/)