Dirty Little Wars and the Law: Did Osama bin Laden Win?

By David M. Crane 

(Re-published from The Hill | Aug. 18, 2019) The past week marked the 70th anniversary of the Geneva Conventions of 1949. This laudable treaty, signed by every country, codified centuries of custom, treaties and protocols to protect individuals found on the battlefield. There are four articles to the Geneva Conventions protecting the wounded and sick, prisoners of war and civilians. This is an attempt to bring law and order onto the battlefield. These conventions are part of a larger set of treaties, protocols and rules called international humanitarian law, or the “laws of armed conflict.”

“For the past several decades, conflict has evolved from the vast industrial age conflicts, such as the World Wars and Operation Desert Storm, into the nuanced, kaleidoscopic conflicts of today.”

The Geneva Conventions were part of a promising four years after World War II that attempted to prevent the horrors of future conflict. The Nuremberg Principles were adopted, the United Nations Charter was signed, and the Universal Declaration of Human Rights and the Genocide Convention were created. These became the cornerstones to settle disputes peacefully and use force only as a last resort. The focus was on international peace and security.

Originally drafted to protect those found on the battlefield during international armed conflict, the protocols additionally drafted in 1976 brought in non-international armed conflict. The minimum standard under what is called “Common Article 3,” found in each of the four parts to the conventions and the additional protocols, is that regardless of status on the battlefield, everyone should be treated humanely. That remains the minimum today. Not maintaining this standard can be a war crime in and of itself. Essentially, any armed conflict is covered by the rule of law and those who break international humanitarian law are committing war crimes.

For the past several decades, conflict has evolved from the vast industrial age conflicts, such as the World Wars and Operation Desert Storm, into the nuanced, kaleidoscopic conflicts of today. In these “dirty little wars,” the parties largely fail to follow the laws of armed conflict. There are no protections, particularly for civilians and even more importantly for women and children. The Geneva Conventions single them out to be especially protected; yet, one only has to look to the Syrian civil war to see that this key principle of law is ignored by all parties to that conflict.

A majority of casualties in dirty little wars of the 21st century are civilians, a protected group under international law. Intentionally targeting civilians is a grave breach of the Geneva Conventions. Those who violate this principle are war criminals and remain so for the rest of their lives, since there is no statute of limitations for such crimes. By way of example, we still prosecute Nazi camp guards from World War II, all of whom now are in their 90s …

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David M. Crane is a Syracuse University College of Law Distinguished Scholar in Residence.

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Corri Zoli Comments on Foreign Countries’ US Travel Warning

Japan joins list of countries warning of U.S. travel, Venezuela lists Tennessee city

(WZTV Nashville, TN | Aug. 7, 2019) Japan has joined a list of countries issuing travel alerts for the United States in the wake of two mass shootings over the weekend.

The country of Venezuela warned their citizens to avoid cities they called the “20 most dangerous in the world,” based on a report from Forbes Magazine. Among the cities listed are Memphis, Tennessee, Birmingham, Alabama, and Atlanta, Georgia …

… A national security expert from Syracuse University called the travel advisories likely political in nature. Corrine Zoli, Director of Research for the university’s Institute for National Security and Counterterrorism says “there is likely a political message embedded in especially Venezuela’s travel alert in light of President Trump’s announcement on Monday of expanding US sanctions, which will freeze all Venezuelan government assets and ban all Americans from doing business with Maduro’s administration.”

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A Day to Remember Justice

By David M. Crane

(Re-published from Jurist | June 26, 2019) June 26 is a day designated by the United Nations as International Day in support of victims of torture. The General Assembly resolution creating the date imagined this as a day stakeholders – member states and their citizens – would unite in support of those that have endured torture and cruelty and recommit to ending its scourge. As international legal experts on this matter, we are using this opportunity to remind member states of their commitments, specifically that victims have meaningful access to seek judicial redress. Access to justice is the key feature of the right to redress and is a critical part of the global fight against impunity to which we have all committed ourselves.

“The Rendition, Detention and Interrogation (RDI) program employed by the U.S. post 9-11, has seen scant judicial redress afforded to victims.”

Article 14, of the CAT enumerates that signatories must provide in their “legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.” Even for countries that have a strong record against torture and cruelty and enacted domestic protections against their use, this requirement to open up their legal systems to victims, has proved more challenging. Our work has been undertaken in the context of these domestic challenges, to support the legal right to redress, compensation and rehabilitation for victims.

As a former International Chief Prosecutor and a Registrar before international courts, charged with seeking justice for victims of heinous human rights abuses, we have personally witnessed the importance of and healing effect that victims derive both from judicial redress and an opportunity for adequate compensation. The impact of meaningful judicial redress on both victims and their societies’ healing and reconciliation is profound. It also acts as a powerful deterrent for future human rights abuses.

The Rendition, Detention and Interrogation (RDI) program employed by the U.S. post 9-11, has seen scant judicial redress afforded to victims. Although the program was run by the U.S., many European countries, including the U.K., enrolled as junior partners. All governments involved in this shameful program have shied away from transparency and accountability, including providing victims with judicial redress options, but none has been able to completely bury their moral and legal responsibilities …

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David M. Crane is a Syracuse University College of Law Distinguished Scholar in Residence.

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Jean-Pierre Bemba’s Request for Compensation for Damages from the International Criminal Court

By David M. Crane

(Re-published from Jurist | June 9, 2019) Jean-Pierre Bemba Gombo (Bemba) is the leader of the Movement for the Liberation of Congo (MLC) and was the commander-in-chief of its military forces during the Central African Bush War from 2003-2004, during which the MLC was accused of committing war crimes, as well as, crimes against humanity.

“The ICC does not have precedent in awarding damages to those seeking compensation under the court’s jurisdiction, and there does not seem to be a set test to determine whether a party seeking compensation from the ICC will receive such damages.”

Bemba was arrested on charges of war crimes and crimes against humanity for his role as the leader of the MLC  near Brussels in May 2008 and was handed over to the International Criminal Court (ICC) on July 3, 2008. Bemba was held by the ICC for over two years before his trial began in November 2010, throughout the duration of his trial which lasted until 2014, and still after the conclusion of his trial, until his convictions on March 21, 2016.

The ICC sentenced Bemba to 18 years detention for war crimes and crimes against humanity convictions, plus an additional year and a €290,000 fine for witness tampering.

Bemba appealed his convictions in 2016, citing procedural and legal errors in the lower court judge’s ruling, which Bemba’s counsel said should have resulted in a mistrial. The ICC chamber to which Bemba appealed found on June 8, 2018 that the trial chamber had ignored significant testimonial evidence proving that Bemba had a limited ability to investigate and punish war crimes in the Central African Republic during and after the violence in 2003 and 2004. This conclusion lead to Bemba’s acquittal.

Bemba submitted a request for compensation to the ICC on March 8, 2019. The ICC Prosecutor and Registrar asked the judges to dismiss this claim, but the Pre-Trial Chamber II judges presiding over the claim denied this request.

Bemba’s claim totaled €68.8 million, including: €12 million for the period of his alleged unlawful incarceration, €10 million in aggravated damages, €4.2 million in legal fees, with the remaining €42.4 million being for property damage.

Bemba’s request for property damage compensation stems from those losses consequent to Bemba’s arrest and detention as well as those losses caused by the ICC’s mistakes in managing Bemba’s frozen assets, as the assets seized by the ICC upon Bemba’s conviction were allowed to rot.

The provisions of the law are that Article 85 of the ICC’s Rome Statute governs compensation claims by persons who have been arrested pursuant to the ICC’s jurisdiction or convicted by the ICC. The governing clause provides two primary bases for bringing claims for compensation: the first is found in Article 85(1) while the second is laid out in Article 85(3). Article 85(1) of the Rome Statute states that “[a]nyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.” Article 85(3) is vaguer and states that “[i]n exceptional circumstances, where the court finds conclusive facts showing that there has been a grave and manifest miscarriage of justice, it may in its discretion award compensation . . . according to the criteria provided in the Rules of Procedure and Evidence, to a person who has been released from detention following a final decision of acquittal or a termination of the proceedings for that reason.”

Claims for compensation must follow the ICC’s Rules of Evidence and Procedure, specifically Rule 173(2), which requires that a request for compensation be submitted to the court no later than six months from the date the person making the request was notified of the decision of the court concerning unlawful arrest or detention; reversal of a conviction; or existence of a grave and manifest miscarriage of justice.

Any party seeking compensation on such grounds must submit a written request containing the grounds for and the amount of compensation being sought to the ICC’s Presidency. The ICC then designates a three-judge chamber to consider the request. Rule 174 of the Rules of Procedure and Evidence provides that judges handling such requests may hold a hearing or determine the matter based on the request along with any written observations by the prosecutor and the party who filed the request.

In cases in which damages are awarded, judges shall take into consideration “the consequences of the grave and manifest miscarriage of justice on the personal, family, and social professional situation of the claimant.” However, it has been acknowledged that there is no exact formula for calculating such damages.

The ICC does not have precedent in awarding damages to those seeking compensation under the court’s jurisdiction, and there does not seem to be a set test to determine whether a party seeking compensation from the ICC will receive such damages – at this point, it is purely discretionary. However, it does seem as if the ICC tends to look to whether the claim for damages is viable under Article 85(1) or 85(3) of the Rome Statute and proper under Rule 173(2) before considering the amount of compensation requested …

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David M. Crane is a Syracuse University College of Law Distinguished Scholar in Residence.

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Corri Zoli Explores Terror’s Organizational Tactics in Terrorism and Political Violence Article

Zoli, Corri & Aliya H. Williams G’17. “ISIS Cohort Transnational Travels and EU Security Gaps: Reconstructing the 2015 Paris Attack Preplanning and Outsource Strategy.” Terrorism and Political Violence, 31 (June 2019).

In this article Zoli and Williams explore the underappreciated role of organizational tactics in terrorist violence in an understudied single case: ISIS’s execution of the Nov. 13, 2015 Paris attacks.

It is one of the first systemic reconstructions of the journeys made by two ISIS strike cohorts in the coordinated attacks, as teams traveled from the Levant to Europe. In contrast to other high-profile attacks, terrorism scholars have not undertaken a detailed reconstruction of this event, even while open source information is now available. By examining the transnational travels of foreign terrorist fighters, the authors identify ISIS’s distinctive terrorist outsourcing strategy in which operatives used their experiences to adapt to changing security conditions, while EU governments revealed limited responses.

Both elements in this tightly-knit dynamic—terrorist outsourcing savvy using FTFs and EU security policy failures—were necessary to achieve this high-profile attack.

Zoli’s and Williams’ essay contributes to descriptive empirical and theoretical knowledge of terrorist tactical innovation and adaptive operational learning, as these capacities are enhanced by on-the-ground organized networks to increase organizational (versus so-called “lone wolf”) campaign success. By using a single case interdisciplinary and exploratory framework, the authors claim that terrorism studies can delve deeper into superficially understood phenomena to isolate concepts with future cross-case value, such as cohorts and tactical adaptation.

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Like the Warmbiers, Former CIA Detainees Deserve Chance to Seek Justice

By David M. Crane 

(Re-published from The Hill | May 19, 2019) In the headlines again recently was the tragic case of University of Virginia student Otto Warmbier, when it was disclosed that North Korea billed the United States $2 million for his medical treatment while a captive. Warmbier died in 2017 shortly after arriving home following more than a year in North Korean detention. Arrested by the North Koreans for spying, Warmbier was accused of ripping down a propaganda poster in a restricted area of his hotel in Pyongyang. He likely suffered unimaginable torture during his time in detention, but because of the opaque nature of the North Korean regime, little is known about his treatment and what caused the severe brain injury that led to his coma and death.

“Indeed, if the United States expects other countries to open their courts for U.S. victims overseas, it needs to do that for those who claim torture and ill-treatment by the United States.”

The news raised questions about the negotiations for Warmbier’s release and whether the medical bill the U.S. apparently had agreed to pay essentially was a ransom payment. The Trump administration has denied that it ever was paid. Warmbier’s mother, Cynthia, said that if she knew the North Koreans were after money she would have given it to them from day one. It is understandable that the relatives of victims of torture and cruelty by foreign governments are prepared to do anything to see them released and to gain justice for their families.

The Warmbiers received a modicum of justice in a federal court last December, when North Korea was ordered to pay the family over $500 million in damages. At the time of the ruling, his parents commented, “We are thankful that the United States has a fair and open judicial system so that the world can see that the Kim regime is legally and morally responsible for Otto’s death. … We promised Otto that we will never rest until we have justice for him.” The judge in the case noted that the award was substantial to deter the North Koreans from engaging in this type of behavior again.

Although the U.S. courts have offered a legal venue for the Warmbiers to seek judicial redress, under Article 14 of the Convention against Torture (CAT) and international legal standards, they also should have meaningful access to legal proceedings where the torture took place. They have a right to judicial redress, adequate compensation and means for as full a rehabilitation as possible. This is something that the United States and the 163 other signatories to the CAT have committed to and is an important tool for ensuring reconciliation, healing and prevention.

Unfortunately for the Warmbiers and their quest for justice, North Korea is unlikely to pay a damages award or to provide this sort of judicial process for redress and compensation. But imagine if similar torture, cruel treatment and even death happened to a U.S. citizen in a country that had signed the CAT. The United States surely would demand the right of our citizens to have access to judicial redress and the ability to seek adequate compensation for their treatment.

Indeed, if the United States expects other countries to open their courts for U.S. victims overseas, it needs to do that for those who claim torture and ill-treatment by the United States. Specifically, victims of the U.S. post-9/11 Rendition, Detention and Interrogation (RDI) program thus far have been unable to seek meaningful redress in U.S. courts. These individuals were suspected of terrorism, rounded up in Afghanistan on promise of a bounty. After months or years of detention, many were released without charge or explanation …

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David M. Crane is a Syracuse University College of Law Distinguished Scholar in Residence.

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Between Hacks and Hostilities: Are the US Government and Private Sector Ready for Persistent Engagement?

By the Hon. James E. Baker

(Re-published from ABA Journal | May 9, 2019) Cybersecurity is necessarily an issue that crosses international boundaries, raising complex questions of sovereignty, jurisdiction, law and policy. In response, lawyers have struggled to find the right legal metaphor or framework to apply to cyberspace. Each of these issues concerns the American Bar Association Rule of Law Initiative because the way we as a society choose to address these challenges implicates what it means to live and operate under the rule of law.

“What would be even more remarkable would be if the U.S. government did in fact use all the instruments of national power to enforce cyber norms, as it once used all the instruments of national power to contain the Soviet Union.”

The United States government produces almost as many reports and strategies as the ABA. One recent document warrants the attention of the bar, and not just security practitioners. The Department of Defense Cyber Strategy released in September—or more precisely, the unclassified part of the Strategy available to the public—breaks new and important ground, potentially marking a significant shift in the federal government’s strategic posture. How important the Strategy is will depend in large part on whether it is tied to an effective policy and decision-making process.

If I were briefing a senior policymaker on the substance and import of this new Strategy, I would highlight the following key statement:

“We are engaged in a long-term strategic competition with China and Russia. … The United States seeks to use all instruments of national power to deter adversaries from conducting malicious cyberspace activity that would threaten U.S. national interests, our allies, or our partners. … [The United States will] persistently contest malicious cyber activity in day-to-day competition.”

What is remarkable here is not the content of the statement, but the willingness to say it publicly. What would be even more remarkable would be if the U.S. government did in fact use all the instruments of national power to enforce cyber norms, as it once used all the instruments of national power to contain the Soviet Union. Gen. Paul Nakasone, in his capacity as the commander of U.S. Cyber Command, has advocated this approach encapsulated in the concept of “persistent engagement” …

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US Once Led International Justice But, Today, We’re on Wrong Side of the Law

By David M. Crane, Ben Ferencz, & Hans Corell

(Re-published from The Hill | April 14, 2019) With this month’s 25th anniversary of the Rwandan genocide it is important that mankind continue to maintain a system of international accountability to help prevent future atrocities. The Rwandan atrocity was one of the catalysts that created the modern international criminal law system. Coupled with the horrors in the Balkans, the United Nations, under the leadership of the United States, created the first international war crimes tribunals since Nuremberg in 1945.

The United States was a key player in developing what became the International Criminal Court, created to deal with the most egregious international crimes, complemented by the efforts of the various state parties.

The International Military Tribunal at Nuremberg was mankind’s first attempt to hold those who committed atrocities accountable under the rule of law. That seminal effort to try the leaders of Nazi Germany was led by an American, Robert H. Jackson, who was the chief U.S. prosecutor at the tribunal. The jurisprudence coming from the International Military Tribunal at Nuremberg in 1945-49 was the cornerstone by which the modern system of accountability was established in the mid 1990s.

All this was historically significant because the international community for centuries looked the other way when heads of state, dictators and monarchs turned against their own citizens and others for their sordid political, religious or ethnic advantage. Military historian John Keegan has said the history of war is the history of mankind, and the history of mankind is the history of war.

At the end of the 20th century, and the end of the decades long Cold War, the events in the Balkans, Rwanda and West Africa, particularly Sierra Leone, called for a different — even bold — approach to help seek justice for the millions of victims. The ad hoc and hybrid tribunals created for Yugoslavia, Rwanda and Sierra Leone were successful examples of what could be done when righteous fury is channelled into using the rule of law to hold accountable those who commit international crimes. These courts and tribunals were created with the focused effort and assistance of the United States.

As these efforts worked to seek justice for the crimes committed in Europe, as well as East and West Africa, the international community was working together at the Rome Conference in 1998 in making those experiments in international justice permanent. The United States was a key player in developing what became the International Criminal Court, created to deal with the most egregious international crimes, complemented by the efforts of the various state parties.

As world power shifted, with a diminished United States, in the 21st century, the very country that “built the house” called modern international criminal law stepped away from that house and handed back the keys, perhaps permanently. Since 2002, the United States has had a cynical and skeptical relationship with the International Criminal Court and, ironically, never became a state party …

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David M. Crane is a Syracuse University College of Law Distinguished Scholar in Residence.

Ben Ferencz was a leading force in the establishment of the International Criminal Court and is the last living prosecutor from the Nuremberg Trials.

Hans Corell, a former judge, was the legal counsel of the United Nations from 1994-2004. He was involved in the establishment of the tribunals and courts mentioned in the article.

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Cora True-Frost Pens OpEd on the Rwandan Genocide Anniversary

What Have We Learned From the Rwandan Genocide?

By Cora True-Frost

(Re-published from U.S. News & World Report | April 4, 2019) This first week of April marks the 25th anniversary of the Rwandan genocide, a three-month long massacre during which Hutu militants killed an estimated 800,000 Tutsis and moderate Hutus after the Hutu president was killed. The international community responded to the atrocities late, and then sought accountability after the genocide by establishing the International Criminal Tribunal of Rwanda (ICTR) to try those most responsible.

The law, and particularly international criminal trials, should teach us about past mistakes.

It is important that we remember the horror of the genocide and reflect on the mistakes made, in order to work toward a more peaceful future. One of the main takeaways from the ICTR’s atrocity trials is that words matter.

The world of the Rwandan genocide may to most people seem far removed from the United States. It does not to me. I am a law professor who grew up an Army brat, often abroad. I graduated high school in Nuremberg in the former West Germany – the site of the famous Nuremberg Tribunal held in the wake of the Holocaust. I know that words matter. Always mindful of the horrors of the Holocaust and the ways that democratic majorities can scapegoat and dehumanize minorities, my professional focus has been in constitutional and international law.

The law, and particularly international criminal trials, should teach us about past mistakes. The legacy of Rwanda’s genocide has some compelling messages for American people about the power of our words, and the danger of hate speech. Few of us are immune to the polarizing media coverage. Our leaders and media pundits use generalizations about cultures and fear-mongering to drive home support for policy in a very profound and impactful way. Creating hate as opposed to understanding will lead to repeat mistakes. This week in particular, we should heed the legacy of Rwanda’s genocide, reminding our nation of what can happen when we don’t identify and speak about the impact that fear has on our united psyche.

We Americans know words matter. We famously have strong free-speech protections. We are outliers in the international community for refusing to penalize hate speech. However, even those of us with the strongest commitments to free speech understand that speech can be dangerous and even constitute incitement …

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Syracuse University Professor Cora True-Frost is an INSCT Affiliated Faculty Member.

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After 70 Years, NATO Is Still an Important Alliance

By Robert B. Murrett

(Re-pubished from U.S. News & World Report | April 4, 2019) AS NATO MARKS ITS 70th anniversary this week, we have a good opportunity to take stock of past accomplishments, and at the same time, to look toward the future prospects for this remarkable alliance.

Constructive political and military impact beyond the borders of member states has been a hallmark of NATO since its inception in 1949, and a key factor in its success.

Strong Civilian Leadership

First, it is worth noting on this 70th anniversary that the progress made by NATO is a product of its standing as both a political and military alliance.

On the civilian side, the diplomatic work of the NATO secretary general and the senior representatives from the member nations that comprise the North Atlantic Council is every bit as important as the military dimensions of the alliance.

The civilian leadership of NATO and their policy accomplishments have been a lynchpin of global diplomatic progress, before and after resolution of the Cold War. As examples, the solid, steady diplomatic efforts of the current secretary general, Jens Stoltenberg, the remarkable record of his predecessor, Anders Fogh Rasmussen, and the recent passing of the sixth secretary general, Lord Peter Carrington, are reminders of the exceptional, long-term civilian leadership and political impact of the Alliance.

Political and Military Impact

Second, constructive political and military impact beyond the borders of member states has been a hallmark of NATO since its inception in 1949, and a key factor in its success.

The alliance has continued to reach out and provide a basis for interaction with nations around the world in ways that have consistently advanced dialogue and reduced tensions, through exercises, diplomacy and constructive talks, particularly since the end of the Cold War. One only has to look at the NATO structure of Partnership for Peace, Istanbul Cooperation, and Mediterranean Dialogue countries, as well as other key global partners such as Australia and Japan, to fully understand the NATO’s irreplaceable diplomatic and military impact in advancing security.

For those of us with military careers spanning much of NATO’s history, the alliance has provided the basis for coalition tactics and procedures around the globe, and has been part and parcel of our contributions to peace and security for decades …

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