Tag Archives | terrorism

Europe OK with Occupation – and With Hezbollah

Despite the recent United Nations Human Rights Council’s report, France and many other European countries are against attempts to revive the peace process, end the occupation and remove settlements. They prefer a “long-term stalemate” (which sounds like Boogie Yaalon’s “long term conflict management plan“). Outside pressure to push peace could backfire and benefit hardliners on both sides, according to European journalists interviewed recently by Reuters.

Of course, I am not talking about Israel’s occupation of parts of the League of Nations Mandate for Palestine previously occupied by Jordan, but rather about Turkey’s occupation of a full-fledged EU member state.

In other European contortions, while France bombs terrorists “on the footsteps of Europe” in Mali, thousands of Hezbollah members operate openly in Europe. Their activities are now known to include bus bombing. France and other European powers have long been reluctant to declare Hezbollah a terrorist organization – apparently because they only kill Jews, and most elsewhere, according to an astounding analysis in the New York Times:

There’s the overall fear if we’re too noisy about this, Hezbollah might strike again, and it might not be Israeli tourists this time,” said Sylke Tempel, editor in chief of the German foreign affairs magazine Internationale Politik.

Europe has recently been indicating that it will be pressuring Israel to take so-called risks for peace. But Europe is not unbiased, nor is its attitude towards Israel driven principally by Israel’s actions. European actors are driven by political agendas, fear, and a variety of factors. And given their fear of taking on Turkey, or even Hezbollah, they are ill placed to talk about risks for peace. […]

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France’s Mali War & International Law

France is fighting a rather serious war in Mali. What does international law say about this go-it-alone incursion into a foreign country? Given the controversy over recent interventions with mixed motives, such as the U.S. war in Iraq, it is worth consider the international legal basis for the assault and its conduct.

I. Security Council Resolution.
France has invoked the U.N. Security Council Res. 2085, passed on Dec. 20th, as the basis for their intervention. However, this is not so simple. Yes, the Council did use its Chapter VII authority to “authorize the deployment” of foreign forces to Mali – just not French force. Rather, the entire resolution is about green-lighting the African-led International Support Mission in Mali (AFISMA), a ECOWACS effort. France is not part of AFISMA, or of ECOWACS. Only AFISMA is authorized to “support the Malian authorities in recovering the areas in the north of its territory under the control of terrorist, extremist and armed groups.” (Par. 9b).

As for other U.N. member states, the resolution merely calls on them to provide logistic, training and other kinds of “support” to the ECOWACS mission (par. 14). France is not providing support, it is taking the lead role in direct combat operations. Indeed, it jumped in before AFISMA got there, because it judges the U.N. authorized African effort would be too little, too late.

Alas, an authorization by one group of countries to intervene is not a carte blanche to all interested parties, and we will have to look elsewhere for France’s authority. One should add that this aggressive reading of UN resolutions is a bit ironic given France’s criticism of US readings of resolution before the Iraq War.

II. Third-party defense: Mali’s invitation.
France’s use of force in Mali is a lot less troublesome because it was […]

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Material Support Statute: A Neutrality Act for Everyone

In the next few days, I’ll discuss possible sources of Art. I authority for the the federal prosecution of three foreigners for fighting on the side of al-Shabab in Somalia, and brought forcibly to the U.S. for trial. Previously, I’ve argued that this prosecution cannot be sustained under the Offenses Clause. But first lets put this in historical and political context.

The use of the material support statute to prosecute foreign fighters in foreign wars is certainly novel, but it has a a historical cousin, which highlights the unusualness of the present prosecution in Brooklyn.

The Neutrality Proclamation of 1793, and subsequent Act, banned Americans from participating, or providing what we might call material support, to the belligerents in the Napoleonic Wars. The idea was such involvement could drag the U.S. into the war. The measures were extremely controversial, leading to the Pacificus-Helvedius debate between Hamilton and Madison. One of the secondary questions was the source of constitutional authority: it was variously placed in what I’d call the “dormant war power” – violations of neutrality by citizens undermined Congress’s prerogative of choosing our wars – or various treaty obligations to the particular warring states. Foreign commerce would do too. (I discuss the Art. I basis for the law in Part II.D.2 of this new article.)

The extraterritorial application of the Material Support statute to foreigners engaged in foreign wars essentially applies the Neutrality Act to the world. Not only must Americans stay of the of designated conflicts, everyone else must to. Of course, the effect is the opposite of the Neutrality Act: instead of distancing the US from foreign wars, it imports them into U.S. court rooms.

It is interesting to note that two of the men have Swedish citizenship, and the third had British citizenship. He became a […]

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The Offenses Clause & Universal Jurisdiction Over Terrorists

A few days before Christmas, the U.S. indicted three men at the Federal District courthouse in Brooklyn for plotting suicide bomb attacks. This is an extraordinary, almost unique case: none of the people or conduct has any connection to the U.S. The defendants are foreign nationals, captured by some African government ont their way to join up with al-Shabab, the Somali Islamist group. To be clear, there is no suggestion that they planned to target American nationals or facilities, or had even ever been to this country before.

This is an aggressive – and unconstitutional – assertion of universal jurisdiction. The U.S. is prosecuting foreign nationals for their participation in a foreign civil war. Congress, as the Supreme Court recently reminded us in the Health Care decision, is truly one of limited regulatory powers, and thus the first question about such a case is what Art. I power gives Congress the power to punish entirely foreign conduct with no U.S. nexus.

The men have been charged under the “material support for terrorism” statute, 18 USC 2339B . Apart from the many controversies about the substantive sweep of the law, it casts a very broad jurisdictional net. By its terms, it applies to foreigners who support designated foreign terror groups with no connection to the U.S. In other words, it makes terrorism anywhere a federal offense.

While the statute has previously been used to prosecute extraterritorial conduct by foreigners that conducted significant dealings in the U.S., this is only the second apparently “universal” prosecution.

The Art I. authority for prosecuting conduct under universal jurisdiction is the “Define and Punish” clause. Yet the clause limits universal jurisdiction to crimes, like piracy, that are i) “offenses against the law of nations,” and ii) treated as universally cognizable by the law […]

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