The International Legal Prohibition on Perfidy and Its Scope in Non-International Armed Conflicts

by Robert Lawton Pratt

Since the beginning of its conflict with al Qaeda, the United States has faced an enemy that relies on its ability to blend into the civilian population to mount attacks and sustain its war-fighting efforts. Disguised as civilians, members of the group have gained proximity to valuable targets and conducted deadly attacks they could not have achieved if they wore their terrorist affiliations openly. In Iraq, Afghanistan, and elsewhere, other terrorist and insurgent groups also rely on similar tactics to inflict maximum damage. Suicide bombers use civilian objects to attack civilian targets, including markets, mosques, and other public places. Combatants hide amongst the local population, cloaking themselves in the legal protections afforded civilians. Facing these enemies in dense, urban environments, U.S. forces often have to work within and rely on their civilian surroundings to attack these combatants and to protect themselves.

These battlefield realities raise questions about compliance with the law of armed conflict—particularly with the prohibition on perfidy and its application in these contexts. Article 37 of Additional Protocol I of the Geneva Conventions defines perfidy as any act “inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Effectively, this provision prohibits parties to armed conflicts between states (i.e., international armed conflicts or “IACs”) from abusing legal protections afforded civilians and some combatants in order to harm the enemy. Examples of this crime include feigning surrender or injury to lure an enemy into an attack or feigning civilian status to gain and betray the confidence of the enemy.

Though both customary international law and Additional Protocol I prohibit perfidy in IACs, whether and to what extent this prohibition applies within the context of non-international armed conflicts (NIACs) remains relatively unclear. NIACs, such as the United States’ conflict with al Qaeda, include conflicts between states and non-state actors or between non-state actors only. To clarify the extent to which the perfidy prohibition applies in this conflict context, this article begins by presenting the legal and practical arguments for and against applying the prohibition on perfidy to NIACs and subsequently assesses the prohibition’s scope using the recent U.S. military commission case against the U.S.S. Cole bombers and the CIA’s involvement in a Mossad car bomb operation that killed a Hezbollah leader. From this analysis, it is clear that the international legal prohibition on perfidy extends to NIACs through customary international law and that a critical component of the crime is the attacker’s abuse of law of war protections.


Myth Meets Reality: Civil Disobedience in the Age of the Internet

by Bryan H. Druzin & Jessica Li

Controlling the information available to citizens is vital to the preservation of political power, and it is one of the essential means by which authoritarian regimes sustain political monopoly. However, with the advent of the Internet, the world of communications has undergone a revolution, creating new possibilities that challenge government control over channels of information, and, by extension, public opinion. Many have asserted that the Internet is uniquely immune to government control. As such, it has been widely posited that Internet technology will precipitate the demise of the authoritarian state. The recent revolutions that set the Arab world aflame, known as the Arab Spring, seem to support this assertion. The Arab Spring has engendered a widespread sense of inevitability that Internet technology, such as social media, will empower opposition movements worldwide. Indeed, the Internet is now broadly hailed as an unstoppable democratizing force for the world.

Yet for anyone who cares to look, China defies this simplistic paradigm. China has been stunningly successful in neutralizing the political power of its Internet. The protests calling for universal suffrage that erupted on the streets of Hong Kong this autumn tell us something important about the political potency of the Internet with respect to China. The failure of the “Umbrella Revolution” to spark wider protests in the rest of China — or even among the greater Hong Kong population — belies the simplistic notion that China is a political tinderbox waiting to be ignited by the correct dose of Internet liberalization and online activism. If the protests in Hong Kong could not galvanize wider dissent even within this unique pocket of China afforded all the legal and technological advantages available, how then can different results ever be expected in the rest of China? Prior to the Hong Kong protests, the international community had yet to witness a Chinese society boasting an advanced use of Internet technology and social media engaging in large-scale public protest. As such, the protests provided a unique opportunity to test the popular meme that the viral nature of social media, once properly activated, is a juggernaut force for political transformation. The Hong Kong protests were a test of this supposition — one that failed.


Drone Law: A Reply to UN Special Rapporteur Emmerson

by Michael N. Schmitt

In January 2013, Ben Emmerson, the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, began examining the use of remotely piloted aircraft (RPA or “drones”) in extraterritorial lethal targeting, commonly labeled “targeted killing.” The following October, he released an interim report surveying the legal framework for the operations. It came on the heels of a report on the same topic by UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Christof Heyns. The two documents marked a sea-change in the ongoing debate over RPAs. Sophisticated yet accessible, the reports surgically dissected jus ad bellum (law governing the resort to force by States), jus in bello (international humanitarian law or IHL), and human rights norms. Together, they helped disentangle the often emotive, counter-factual and counter-normative dialogue that had obfuscated objective analysis.

This March, Emmerson released his 2013 annual report. It analyzes thirty-seven RPA strikes involving civilian casualties, proffers a sample strike analysis, and includes recommendations. In the report, Emmerson invites States to answer various legal questions regarding which “there is currently no clear international consensus, or where current practices and interpretations appear to challenge established legal norms.” States are to do so in advance of the 27th Session of the Human Rights Council in September. For Emmerson, “[l]egal uncertainty in relation to the interpretation and application of the core principles of international law governing the use of deadly force in counter-terrorism operations leaves dangerous latitude for differences of practice by States. . . . [T]hus an urgent and imperative need to reach a consensus” exists. The author agrees.

This essay examines Emmerson’s queries — replicated verbatim below — in an effort to assist States that answer his call. For States that do not, the analysis can serve as a useful tool in evaluating the responses of other States, as well as refining their own legal policy positions regarding RPA operations. Although the author provides his own views, he makes every effort to highlight competing positions.


What Price Financial Stability? Evaluating the European Union Financial Transactions Tax

by Andrew W. Hartlage

Though the global financial crisis reached an identifiable peak in the United States in September of 2008, events unfolded more slowly in the European theater. Banking crises in Cyprus, Greece, Iceland, and Ireland were punctuated by the failures of large financial institutions in Germany, the United Kingdom, and the Benelux countries. Similarly, while the United States reached a significant landmark along its path of financial reform with the passage in July 2010 of the Dodd-Frank Wall Street Reform and Consumer Protection Act,  Europe’s progress has been piecemeal, moving with fits and starts at the national, supranational, and international levels.

Despite some modest progress, significant threats to financial stability in Europe remain unaddressed, and the work of shoring up the European financial system continues. In February 2013, as part of this ongoing programme, the European Commission (“Commission”) proposed that some Member States levy a uniform tax on financial transactions beginning in 2014. This tax, known as the European Union Financial Transactions Tax (“EU FTT”), would apply to financial transactions between or with residents of participating Member States, and to transactions involving securities issued in participating Member States or derivatives of such securities.

This Essay argues that the EU FTT as proposed is flawed policy. Part I discusses how the European Union’s responses to the problem of financial stability are constrained by provisions in the EU’s foundational treaties. Parts II and III discuss the proposal’s wisdom as a matter of policy, and conclude not only that the EU FTT does little to solve the problems of financial instability in Europe, but also that the EU FTT threatens to undermine concurrent regulatory efforts to improve financial stability.


The Small Steps of the SPEECH Act

by Bruce Brown & Clarissa Pintado

     It had become the go-to punch line for English lawyers attending libel conferences in the United States. Speaking at a podium or debating on a panel, asked to explain a decade of growing defamation litigation in Britain against American authors and news organizations, they would shrug their shoulders and quip, with a nod to the late, great Johnny Cash, that London had indeed turned into a “town named Sue.”

     For many years, the joke was on us. Foreign libel plaintiffs had a considerable upper hand over American defendants in U.K. courts. By bringing suit in England, they could circumvent "actual malice" rules under New York Times Co. v. Sullivan and other substantive First Amendment rights.  What is more, contrary to the standards in the United States, English courts were willing to assert personal jurisdiction over a defendant publisher who was not deliberately targeting a British audience.

     That jurisdictional practice had a particularly significant impact in the age of online publishing when posting news articles on a domestic website makes the material available instantaneously around the world. Lack of due process added to a lack of free speech protections and made for a lethal combination. Not only did English defamation law tilt the scales dramatically toward plaintiffs, it also encouraged individuals to bring suit in the United Kingdom even if they had tenuous ties to the forum and the defendant virtually none.

     The SPEECH Act was a measured and modest response to a significant problem that had created a tangible chilling effect on publishers in this country. Enacted in 2010, the SPEECH Act held strong against its first challenge in federal court when the Fifth Circuit opted not to enforce a default defamation judgment from Canada against a Mississippi blogger. In Trout Point Lodge v. Handshoe, the plaintiffs failed to prove the two prime elements of the SPEECH Act: that is, that Canadian defamation law is not as protective of free speech as U.S. law and that defend-ant would have been found liable in a Mississippi court. Handshoe had posted content on his Gulf Coast online forum linking Trout Point to a corruption scandal in Jefferson Parish, Louisiana. In its claim, Trout Point did not make sufficient assertions regarding a key element that a plaintiff must show to comport with U.S. Constitutional standards: falsity.

     Although Trout Point Lodge represents the utility of the SPEECH Act against international forum shopping, the legislation has its critics. The Professors David Anderson and Mark Rosen do not always agree with each other on what they believe is wrong with the SPEECH Act, but they are both critical of Congress's modest but important steps in this area. While this article will briefly respond to their criticisms, much credit is due to the professors for giving the legislation - and the issues behind it - some much-needed academic attention. This is the phenomenon of "libel tourism." While England was not the only problematic foreign jurisdiction, it was by far the most notorious - the "libel capital of the world" - with several high-profile cases that resulted in complete capitulation from publishers. For American media companies, the threat of libel tourism had developed into a real concern. Media defendants were settling suits abroad as U.S. enforcement uncertainties loomed.




VOLUME 56 :: No. 1

“Protection and Empire”: The Martens Clause, State Sovereignty, and Individual Rights

by Jeffrey Kahn ~ Mar 30, 2016


The Martens Clause was a last-minute compromise that saved the 1899 Hague Convention with Respect to the Laws and Customs of War on Land. In its original formulation, the clause shielded individuals under “the protection and empire” of international law, principles of humanity, and the dictates of the public conscience. F. F. Martens, its author, was Russia’s greatest international law scholar and an extraordinary diplomat. He saw no application for his work in the nineteenth-century internal affairs of states, notwithstanding the transnational terrorism that plagued (and ultimately destroyed) the Russian Empire. Martens’s worldview is no longer our own. State sovereignty is no longer an absolute value in public international law, in part because of the well-known human rights revolution of the twentieth century. As a result, the reach and importance of the Martens Clause has grown. This history helps refute the claim that international humanitarian law is ill-suited for twenty-first century transnational terrorism. But the Clause is not, and never was, a panacea. 

Affirmative Target Identification: Operationalizing the Principle of Distinction for U.S. Warfighters

by John J. Merriam ~ Mar 30, 2016


The Law of Armed Conflict (LOAC) principle of distinction is undoubtedly the cornerstone of that regime of law, which seeks to balance military necessity against humanitarian considerations in order to mitigate the horrifying effects of war on its many victims. The principle of distinction requires belligerents to take constant care to spare civilians and to direct their attacks only against combatants, fighters, and military objectives. Together with the related rule of proportionality, the principle of distinction operates to restrain military decision-makers, prohibiting them from launching attacks that directly or indiscriminately target civilians.

Over the past two decades, the United States has required its forces to obtain “positive identification” (PID) of military targets prior to engaging them. PID is defined as a “reasonable certainty that the object of attack is a legitimate military target.” However, as this Article argues, the PID formulation could stand to be refined. It sets a standard that is at once both too rigid and too narrow; it appears to require a degree of precision that is often impossible to achieve in war, while at the same time providing little guidance on the nature of the information that must inform the decision to attack a target. This Article argues for a new, more accurate formulation of the LOAC principle of distinction: the requirement for the affirmative identification of a target. The Article traces the history and evolution of the principle of distinction, identifies the critical characteristics of both war and law that affect the distinction determination, and examines its application in international criminal cases, State practice, Treaty law, military manuals, and other sources of international law. The Article then explores the origins of the PID formulation, demonstrating its inherent flaws and the potential risk posed by continuing to employ it, before proposing a more accurate and comprehensive standard. 

The Original Meaning of the Law of Nations

by William J. Moon ~ Mar 30, 2016

The Alien Tort Statute, originally enacted as part of the Judiciary Act of 1789, confers on federal courts jurisdiction over civil suits alleging violations of “the law of nations.” Whereas scholars and lower courts alike have assumed that customary international law is the modern equivalent of the law of nations, this Article reveals that this conflation is mistaken. The term “the law of nations,” as commonly used at the time of the statute’s enactment, primarily reflected the dominant view that the law of nations was an extension of natural law. While some writers discussed rules derived from the implicit consent of nations (the modern equivalent of customary international law) in their commentaries on the law of nations, the prevailing view at the time was that it did not belong in a systematic treatise on the law of nations. The implication is that “the law of nations” as understood in the eighteenth century encompassed rules that are better conceptualized as peremptory rules of international law (jus cogens), rather than customary international law. This understanding is of critical importance under the Supreme Court’s instruction that modern suits brought pursuant to the Alien Tort Statute rest on a norm that is comparable to the features of the eighteenth-century paradigms. By developing what I term the “revisionist historical paradigm,” this Article provides a workable doctrinal framework to evaluate modern Alien Tort Statute litigation in line with recent Supreme Court jurisprudence. 

The Tide of the Times? A Sectoral Approach to Latin America’s Resistance to the Investor-State Arbitration System

by Tom Brower ~ Mar 30, 2016


Following a period of openness to foreign direct investment and the integration of arbitration agreements into relationships with foreign investors through international treaties and investment contracts, the last decade has witnessed the resurgence of resistance by Latin American nations to the investor-state arbitration system. What has fomented this recent resistance? While the literature has proffered a set of that primarily focus on country-level ideological positions and structural economic issues, these theories are largely disjointed and empirically limited in their explanatory power. This Note introduces principles from leading sector analysis to develop a singular theoretical framework that explains the empirical puzzle of Latin American resistance to investor- state arbitration. Specifically, this Note asserts that the market structure of the sector that is the target of investment plays a critical role in its capacity for collective action and causally affects the extent to which the sector can influence the host state in its stance vis- à-vis the investor-state arbitration system. Using a comparative historical analysis of Argentina and Venezuela, this Note finds strong qualitative evidence to support a sectoral approach to understanding Latin America’s tumultuous relationship with the investor-state arbitration system while controlling for existing explanations. Ultimately, this Note provides important theoretical and empirical contributions to one of the most salient issues facing the investor-state arbitration system. 

Conscientious Offenders: Russia’s Ban on “Extremist” Religious Literature, and the European Court of Human Rights

by Daniel Ortner ~ Mar 30, 2016

Russia’s law on extremist literature, originally intended as a tool to combat terrorism, has turned into a tool to suppress religious minorities and unpopular or offensive speech. Several individual challenges under Article 10 of the European Convention on Human Rights (ECHR) stemming from convictions under the ban are currently pending before the European Court of Human Rights (ECtHR).

Unfortunately, the ECtHR has a poor track record of defending freedom of expression. Despite strong rhetoric about the importance of protecting controversial speech, the ECtHR has been highly deferential to state efforts to restrict speech in order to protect the religious feelings of believers.

The Russian extremism law provides the ECtHR a perfect opportunity to course correct and stake out a more aggressive position in the protection of freedom of expression. 


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