Between the Law of Force and the Law of Armed Conflict

adhaque_img“Between the Law of Force and the Law of Armed Conflict” by Adil Ahmad Haque, originally published on Just Security Blog on October 13, 2016. We are grateful for permission to reprint this as part of our series inspired by “Humanity’s gjicl_confposterCommon Heritage,” our recent conference on the 2016 ICRC Commentary on the First Geneva Convention. The author, Rutgers Law Professor Haque, was a conference participant; this post is the 3d of 3 he prepared soon after the conference. He writes:

Last week, I argued in favor of the ICRC’s position that if one state uses armed force in the territory of another state then an international armed conflict (IAC) arises between the two states, unless the territorial state consents to that use of force. Accordingly, the treaty and customary law of IAC protects the civilian population of the territorial state as well as the armed forces of the intervening state. For example, on this view, the customary law of IAC applies to US operations in Syria, while Additional Protocol I (to which the US is not a party) applies to UK operations in Syria.

Importantly, the ICRC’s approach applies even if the target of the armed force is an organized armed group operating on the territory­—but not under the control—of the territorial state. Accordingly, the treaty and customary law of non-international armed conflict (NIAC) may also apply to such uses of armed force, for example, by governing the targeting and detention of armed group members.

In this post, I’ll respond to some criticisms of the ICRC’s position. Along the way, I’ll make some more general comments on the relationship between the law of force (jus ad bellum) and the law of armed conflict (jus in bello).

Here on Just Security, Sean Watts and Ken Watkin have criticized the ICRC’s position (see here, here, and here). Perhaps the most sustained critique of the ICRC’s position comes from Terry Gill, in a recent article for International Law Studies. There is much to admire in Gill’s article (indeed, I recently assigned it to my students). However, I found his criticisms of the ICRC’s position unpersuasive.

First, Gill rejects “the argument that non-consensual military intervention automatically constitutes a violation of sovereignty and is therefore directed against the territorial State” on the grounds that the intervention may be a lawful exercise of self-defense or may be authorized by the UN Security Council.

This objection seems misdirected. The ICRC does not refer to a violation of sovereignty but instead to an interference or intrusion into the territorial state’s sphere of sovereignty. By definition, a violation of sovereignty is unlawful. In contrast, an interference or intrusion into a state’s sphere of sovereignty may lawful or unlawful. According to the ICRC, an armed interference or intrusion into a state’s sphere of sovereignty—whether lawful or unlawful—will trigger an armed conflict with that state. More on this below.

Second, and relatedly, Gill writes that “there is no reason to assume that the classification of an armed conflict is dependent upon— or even influenced by—the question of whether a violation of the ius ad bellum has occurred.”

This objection also seems misplaced. On the ICRC’s view, the classification of an armed conflict does not depend upon the lawfulness or unlawfulness of the use of force, but instead depends on the fact that force is used by one state on the territory of another without its consent.

Of course, if the territorial state consents to the use of force then (i) the use of force is lawful under the jus ad bellum and (ii) there is no armed conflict between the two states. However, the reason that there is no armed conflict between the states is not that the use of force is lawful but rather that there is no conflict between the states, armed or otherwise. There is no dispute, difference, opposition, or hostile relationship between the two states. Put another way, the fact that consent has been given or withheld is independently relevant to both the jus ad bellum and the jus in bello.

In his second post, Watkin writes that the ICRC’s “reliance on State consent, as the basis for conflict categorization, makes it difficult, if not impossible, to separate it from the law governing the recourse to war.” I respectfully disagree.

The jus ad bellum and the jus in bello are independent in the sense that a use of force may be lawful under one body of law but unlawful under the other. A war of aggression may strictly conform to the law of armed conflict, while a war of self-defense may flagrantly violate the law of armed conflict. At the same time, we do not conflate jus ad bellum andjus in bello simply by recognizing that certain factual circumstances (such as consent or non-consent) may be relevant to both bodies of law.

(For example, if one state exercises effective control over part of the territory of another state then this will ordinarily give rise to a belligerent occupation. Of course, if the territorial state consents then there is no belligerent occupation, not because the occupation is lawful but because there is no belligerency. The same logic applies to the use of armed force and the existence of armed conflict.)

Third, Gill notes that “neither the text of the relevant provisions in the Geneva Conventions (Common Articles 2 and 3) nor the original ICRC commentaries thereto contain any reference to violation of sovereignty as a criterion for determining the character of the armed conflict.” Nor does the ICTY’s Tadić judgment, which Gill rightly describes as “the leading judicial decision on the classification of armed conflicts.”

Since the Geneva Conventions do not tell us when an armed conflict between states exists, we must interpret their terms in light of their context, object, and purpose. The original ICRC commentaries state that “[a]ny difference arising between two States and leading to the intervention of members of the armed forces” gives rise to an armed conflict between those states. It is hard to imagine a more serious difference arising between two States than a difference regarding whether one may use armed force on the territory of the other. If such a difference leads to intervention by the armed forces of either state, then an armed conflict automatically arises.

In Tadić, the ICTY stated that “an armed conflict exists whenever there is a resort to armed force between States.” Importantly, “armed force between States” does not require that two states use armed force against one another but instead requires that one state uses armed force against another.

Now we approach the heart of the matter. What does it mean for one state to use force “against” another?  On the ICRC’s view, an armed interference in a state’s sphere of sovereignty is a use of force against that state.

Why invoke the concept of sovereignty in this context? States are legal persons, not physical persons or objects. Strictly speaking, one cannot use physical force against a legal person, such as a state or corporation. One can, however, use physical force against a physical entity—a person, place, or object—over which a legal person has legal rights. There is nothing else that physical force against a legal person could sensibly mean. On this approach, physical force is used against a state when physical force is used against a physical entity within that state’s sphere of sovereignty. There is nothing else that physical force against a state could sensibly mean.

Fourth, and most importantly, Gill identifies several examples involving extraterritorial force targeting armed groups in which “the States concerned [n]either verbally [n]or factually conduct themselves as if they were involved in an armed conflict, even though they may not have consented to the interventions and may have considered them a violation of their sovereignty (irrespective of whether they did constitute such violations).” These examples include military operations by the United States inside Pakistan and Yemen; by Turkey inside Iraq; by Kenya inside Somalia; and by Colombia inside Ecuador.

Admirably, Gill allows that “the lack of hostilities between the intervening and territorial States in these examples may be in whole or in part due to other factors.” But what should we make of the fact that these states may not claim to be in armed conflict with one another?  Is the absence of such claims, or the denial of such claims, “subsequent practice in the application of the treaty [in this case, the Geneva Conventions] which establishes the agreement of the parties regarding its interpretation?”

In my view, state silence is inherently ambiguous. Accordingly, we should consider only the explicit legal opinions of states that the law of IAC applies or does not apply. For example, Syria might announce that it is not in an IAC with the UK and that, accordingly, UK forces captured in Syria are not entitled to combatant immunity for acts preceding their capture. The UK would no doubt respond with its own legal opinion, based on its own classification of the conflict and identification of applicable legal rules.

Until subsequent practice establishes the agreement of the parties to the Geneva Conventions (that is, of all states) regarding their interpretation in such cases, we should interpret the terms of the Conventions in light of their object and purpose. As I discussed in my previous post, the object and purpose of the law of IAC is the protection of civilians, civilian objects, and combatants from hostile foreign states. As the ICRC puts it:

it is useful to recall that the population and public property of the territorial State may also be present in areas where the armed group is present and some group members may also be residents or citizens of the territorial State, such that attacks against the armed group will concomitantly affect the local population and the State’s infrastructure. For these reasons and others, it better corresponds to the factual reality to conclude that an international armed conflict arises between the territorial State and the intervening State when force is used on the former’s territory without its consent.

Strangely, in his first post on Just Security, Watkin objects that, by adverting to this factual reality, the ICRC “prioritizes form over substance” because the harm to civilians “may be a mere possibility.” Instead, Watkin suggests that conflict categorization should be based on “an assessment of what actually happens.” On this view, it seems that we will not know what law applies to a use of force until after the use of force is carried out. Among other things, we will not know which legal protections civilians enjoy until it is too late. This seems like an unattractive view.

For his part, Gill acknowledges that “an intervention may impact portions of a State’s population or its national resources,” but writes that

when a population and public property are under the control of an [organized armed group] and not under the effective control of the territorial State, they can no longer be identified with that State for purposes of determining the legal constraints on the conduct of hostilities. In the event the intervening State’s action resulted in occupation of territory, this would change the situation and trigger the regime pertaining to IACs.

Watkin seems to make a similar claim in his first post on Just Security.

Strikingly, Gill provides no support for the first sentence, which is hardly self-evident. Indeed, the first sentence seems to implicitly concede that persons and public property under the effective control of the territorial State can be identified with that State for purposes of conflict classification. Accordingly, if a member of an armed group travels through an area under the effective control of the territorial state then an attack in that area, potentially impacting nearby persons and property, would seem to constitute an attack on the state itself.

Moreover, the second sentence seems to undermine the first. According to Gill, territory under the control of an armed group remains sufficiently identified with the territorial state such that, if the intervening state occupies part of that territory, then an IAC arises between the two states. However, according to Gill, territory under the control of an armed group is not sufficiently identified with the territorial state such that, if the intervening state uses force on that territory, then an IAC arises between the two states. Since control never passes back to the territorial state, it is hard to see the legal or logical basis for this apparently incongruous result.

Finally, Gill observes that “most [academic] authorities take the position that the classification of armed conflicts primarily (but not exclusively) turns on the nature of the parties . . . .” In my view, it begs the question to say that, in the cases under discussion, the two states are not parties to an armed conflict. After all, if the ICRC is correct, then the two states are parties to an armed conflict.

In this post, I have tried to address the most substantial criticisms of the ICRC’s position. No doubt, other objections have been and will be raised. We should expect no less. The controversy that the ICRC’s position has elicited is, perhaps, the best evidence that conflict classification remains highly relevant to the legal regulation of armed conflict.

Whose Armed Conflict? Which Law of Armed Conflict?

adhaque_img“Whose Armed Conflict? Which Law of Armed Conflict?” by Adil Ahmad Haque, originally published on Just Security Blog on October 4, 2016. We are grateful for permission to reprint this as part of our series inspired by “Humagjicl_confposternity’s Common Heritage,” our recent conference on the 2016 ICRC Commentary on the First Geneva Convention. The author, Rutgers Law Professor Haque, was a conference participant; this post is the 2d of 3 he prepared soon after the conference. He writes:

When one state, say, the United States, uses military force on the territory of another state, say, Syria or Pakistan, without the consent of that state, what legal rules constrain that use of military force?  What if the attacking state does not target the armed forces or institutions of the other state but instead targets an organized armed group (say, ISIL or the Taliban) operating in the other state?

According to the International Committee of the Red Cross (ICRC) 2016 Commentary on the First Geneva Convention, if one state uses military force on the territory of another state then the use of force triggers an international armed conflict (IAC) between the two states, unless the territorial state consents to the use of force.  Accordingly, the law of IAC applies to, and constrains, all such uses of force.

Importantly, the law of IAC applies even if the intervening state exclusively targets an organized armed group operating in the territorial state. If there is a non-international armed conflict (NIAC) between the intervening state and the armed group then the law of NIAC may apply in parallel.

The ICRC’s position has attracted substantial criticism, including on Just Security (see here, here, and here).  I hope to respond to some of these criticisms in a future post.  For now, I will try to explain why I find the ICRC’s view persuasive.  This post, like my previous one, emerged from a terrific recent event at the University of Georgia School of Law that examined a number of issues raised by the Commentary.

Before we begin, let’s remember why the question is worth asking, and why the answer matters.  Conflict classification can seem dry and technical, but it affects both protection and accountability in armed conflict.

First, the treaty law of IAC is far more detailed and robust than the treaty law of NIAC.  Most importantly, the Geneva Conventions and Additional Protocol I are far more protective of both civilians and combatants than either Common Article 3 or (with respect to internal conflict) Additional Protocol II.

Second, the customary law of IAC remains distinct from the customary law of NIAC, though the gap has certainly narrowed since the 1990s. For its part, the ICRC identifies 23 customary rules applicable in IAC but not in NIAC. States that take a more conservative approach to customary international law may conclude that the gap between IAC and NIAC remains even wider than the ICRC maintains.

Finally, the Statute of the International Criminal Court recognizes 34 war crimes in IAC but only 19 war crimes in NIAC. Notably, the Statute recognizes knowing violation of the proportionality rule as a war crime when committed in IAC but not when committed in NIAC.

To fix ideas, consider the following scenario:

No Consent: State A launches an airstrike against organized armed group G on the territory of State T, foreseeably killing several civilians. State T exercises no control over group G, but also does not consent to State A’s strike.

According to the Commentary, State A’s strike triggers an IAC with State T to which the law of IAC applies.  If there is, in addition, a NIAC between State A and group G then these two conflicts occur in parallel.

(Note that conflict classification does not depend on the lawfulness of State A’s attack under the jus ad bellum. For these purposes, it does not matter whether State A is lawfully defending itself against an armed attack by group G or unlawfully using military force to eliminate a possible future threat.)

In my view, the ICRC’s position fully reflects the text, object, and purpose of the Geneva Conventions and their Additional Protocols. An international armed conflict is a dispute (‘conflict’) between states (‘international’) involving the use of military force (‘armed’).  It is hard to imagine a more serious dispute between states than a dispute regarding the use of military force by one on the territory of the other.

Indeed, States adopted the law of IAC in order to protect their civilians and armed forces from extraterritorial force by foreign states. States using force beyond their borders may not recognize many legal, ethical, or political constraints on their conduct. Accordingly, when State A uses force on the territory of State T, we need the law of IAC to protect the civilian population of State T from the military operations of State A and (as we shall see) to protect the armed forces of State A from criminal prosecution by State T.

In contrast, States adopted the law of NIAC primarily to regulate internal armed conflicts within their own territory.  States using force on their own territory may feel constrained by domestic law, human rights law, concern for their own citizens, and internal politics. Accordingly, the need for robust protection by the law of armed conflict may have seemed less urgent.

The alternative view—that no IAC exists and that the law of IAC does not apply—seems deeply implausible.

First, the law of NIAC may not apply either.  On the prevailing view, including that of the ICRC, the law of NIAC applies only to protracted armed confrontations between state armed forces and organized armed groups or between such groups.  If group G is not organized in the right way, or if fighting between State A and group G is not sufficiently intense, then a gap in protection would exist that no state would accept.  (As Just Securityreaders know, I partially reject the prevailing view and partially disagree with the ICRC on this point.)

Second, it is hard to believe that states would want legal protection for their civilians from foreign forces to depend on what those foreign forces choose to target.  If an intervening state targets the armed forces of the territorial state then civilians may receive robust protection under Additional Protocol I.  In contrast, if an intervening state targets an organized armed group then civilians may receive only the minimal protections of Common Article 3 (which, arguably, does not regulate the conduct of hostilities at all).  Defenders of the alternative view must explain why states would accept such limited protection for their civilians from foreign forces in such cases.

Third, in internal NIACs, states may be constrained in their treatment of their citizens by human rights law and by domestic law.  In contrast, in cross-border cases, IHL is the primary (though not exclusive) constraint on the intervening state’s conduct.  Accordingly, in cross-border cases, we should not rely on the law of NIAC to provide civilians with the level of protection envisioned by the parties to the Geneva Conventions and Protocols.

In my view, the customary law of NIAC now offers civilians protection comparable to that offered by the customary law of IAC.  However, in my view, we should interpret Common Articles 2 and 3 of the Geneva Conventions in light of the customary law of NIAC as it existed when those treaties were adopted and entered into force.  At that time, no state would have relied on the customary law of NIAC to protect their civilians from foreign states operating on their territory without their consent.

Fourth, the alternative view exposes the forces of the intervening state to criminal prosecution by the territorial state.  There is no combatant immunity in NIAC and, on the alternative view, there is no IAC.  It follows that, if State T captures State A’s pilot, then State T may prosecute the pilot for killing its civilians under State T’s domestic criminal law even if the strike did not violate the targeting rules of the customary law of NIAC.

In my view, State T’s capture of the pilot may itself trigger an IAC between the two states, such that the law of IAC would regulate his detention.  However, the strike occurred prior to capture and therefore, on the alternative view, before an IAC began.  Hence, the pilot would not be entitled to combatant immunity with respect to the strike.  Since combatant immunity exists to protect combatants from prosecution by foreign states for acts that do not violate the law of armed conflict, it is hard to see why states would deny their own forces such protection in such cases.

Finally, the alternative view seems ad hoc.  If one state uses military force against anything else in another state—citizens, state armed forces, or foreign visitors, private property, state institutions, or refugee camps—then it seem clear that an IAC exists and that the law of IAC applies.  Defenders of the alternative view must justify carving out an exception to this general rule for strikes directed at armed groups.  Given the evident need to protect civilians from the intervening state, and to protect captured combatants from the territorial state, such a justification seems hard to imagine.

For these reasons, I favor the ICRC’s position over the alternative view.  The use of force by one state on the territory of another should be constrained by the law of IAC, even if that force targets an organized armed group on that territory, unless the territorial state consents to that use of force.  As mentioned earlier, the ICRC’s position has attracted criticism, some of which I hope to address in a future post.

Triggers and Thresholds of Non-International Armed Conflict

adhaque_img“Triggers and Thresholds of Non-International Armed Conflict” by Adil Ahmad Haque, originally published on Just Security Blog on September 29, 2016. We are grateful for permission to reprint this as part of our series inspired by gjicl_confposter“Humanity’s Common Heritage,” our recent conference on the 2016 ICRC Commentary on the First Geneva Convention. The author, Rutgers Law Professor Haque, was a conference participant; this post is the 1st of 3 he prepared soon after the conference. He writes:

When and where does the law of non-international armed conflict apply?  Since most contemporary armed conflicts are fought between states and organized armed groups, or between such groups, these are important questions for both international lawyers and policy makers.  The answers may affect the jurisdiction of U.S. military commissions, the detention of Taliban commanders and ISIL members, legal constraints on Saudi-led military operations in Yemen, and accountability for war crimes in Syria.

In this post, I’ll discuss the trigger and threshold of non-international armed conflict (NIAC). My point of departure is the much-discussed 2016 Commentary on the First Geneva Convention recently released by the International Committee of the Red Cross (ICRC).  The University of Georgia School of Law recently hosted a fantastic event examining a number of issues raised by the Commentary, including the duty to “ensure respect” for the Convention by other Parties, incidental harm to sick and wounded combatants, and the classification of conflicts.  This post grows out of that rich discussion.

The ICRC’s Commentary clearly states that an international armed conflict (IAC) “can arise when one State unilaterally uses armed force against another State even if the latter does not or cannot respond by military means.”  Accordingly, the law of armed conflict constrains the first use of armed force by one state against another.  Let’s call this a unilateral trigger.

In addition, “there is no requirement that the use of armed force between the Parties reach a certain level of intensity before it can be said that an [international] armed conflict exists.”  Accordingly, minor skirmishes between state armed forces, or the capture of a single soldier, “would spark an international armed conflict and lead to the applicability of humanitarian law.” Let’s call this a nominal threshold.

Unfortunately, the Commentary is not so clear with respect to non-international armed conflict.  The Commentary endorses the view that NIACs “are protracted armed confrontations occurring between governmental armed forces and … one or more armed groups, or between such groups.”  This passage, as well as some cited authority, seem to suggest a bilateral trigger, requiring “armed clashes,” “combat zones,” or, simply, “fighting.”

The Commentary also states that, for the law of NIAC to apply, “[t]he armed confrontation must reach a minimum level of intensity.”  Read alongside the Commentary’s discussion of IAC, it seems that this “minimum level of intensity” would not be met by minor skirmishes or by the capture of a single soldier or fighter.

The Commentary seems to accept a unilateral trigger and nominal threshold for IAC (quadrant 1) but a bilateral trigger and significant threshold for NIAC (quadrant 4).

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In my view, we should accept a unilateral trigger and nominal threshold for both IAC and NIAC.

First, if an armed group is sufficiently organized, then a first use of armed force by or against that group should trigger a NIAC.  Consider the following case:

Daesh:  Daesh fighters pour over the Syria-Iraq border, killing Iraqi civilians, capturing Iraqi territory and taking over Iraqi government institutions.  Iraqi forces flee, offering no resistance.

If we accept a bilateral trigger for NIAC, then the law of armed conflict does not apply until Iraqi forces “respond[s] by military means,” resisting Daesh’s advance.  Until that time, Daesh fighters do not violate the law of armed conflict or commit war crimes.  This result seems deeply unattractive.  Although the Daesh fighters violate Iraqi criminal law, it seems hard to accept that they do not violate the law of armed conflict.

Now consider the following scenario:

Consent:  State A attacks organized armed group G on the territory of State T, with the consent of State T.  There is no pre-existing armed conflict between State A and group G.  State A does not take feasible precautions in attack and recklessly kills many civilians.

If we accept a bilateral trigger for NIAC, then the law of NIAC does not apply until group G responds with military force, resulting in “armed clashes.”  Since State T consents, the law of IAC does not apply either.  It follows that State A does not violate the law of armed conflict or commit war crimes.  This result seems intolerable.

Importantly, human rights law may not be sufficient to protect civilians or armed forces in cross-border cases like those described above.  On most views, human rights law does not apply to the conduct of non-state armed groups that do not yet exercise territorial control and fulfill government-like functions.  Moreover, according to some militarily active states, human rights law does not constrain extraterritorial lethal targeting by state armed forces.  Yet, in my view, such conduct should be constrained by international law.

We should also accept only a nominal intensity threshold for NIAC.  Consider the following case:

Capture:  Members of organized armed group G mistakenly cross the unmarked border between State T, in which they normally operate, and State A.  They encounter a unit of State A’s soldiers, and a minor skirmish ensues.  No one is killed, but one group member is captured by the soldiers while one soldier is captured by the group and taken back across the border into State T.

In this case, it seems that both the group member and the soldier should be entitled to humane treatment under Common Article 3 of the Geneva Conventions.  Moreover, if there are civilians present when the skirmish occurs, then it seems that the conduct of the skirmish should be constrained by customary rules including distinction, precautions, and proportionality  If those rules are flagrantly violated, then those violations should amount to war crimes.

In my view, if an organized armed group has the capacity to sustain military operations then any military operation by or against that group should be constrained by the law of armed conflict.  The organization and capacity of the group is sufficient to distinguish military operations by or against the group from “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.”

Some might worry that applying the law of armed conflict to first uses of low intensity force will displace or reduce the protections of human rights law.  Fortunately, that is not the case.  Even during armed conflict, states may choose not to derogate from their ordinary human rights obligations.  Alternatively, derogation may be strictly required only with respect to certain measures, or only in certain parts of a state’s territory, or only in certain situations, even if the law of armed conflict provides additional constraints on all acts with a sufficient nexus to the conflict.

Most importantly, killings that are not prohibited by the law of NIAC may be prohibited by human rights law.  In particular, “[w]here military necessity does not require parties to an armed conflict to use lethal force …, but allows the target for example to be captured rather than killed, the respect for the right to life can be best ensured by pursuing this option.”  In situations of armed conflict, the law of NIAC may aid the interpretation of human rights law but does not exhaust the content of human rights law.

Finally, the law of armed conflict cannot authorize what human rights law forbids.  As the ICRC observes elsewhere, “[t]he law relating to the conduct of hostilities is primarily a law of prohibition: it does not authorize, but prohibits certain things.”  Human rights law and the law of NIAC do not conflict with each other but instead complement one another, as both impose constraints on violence rather than licenses to commit violence.  As Additional Protocol II makes clear, human rights law “offer[s] a basic protection to the human person” while the law of NIAC aims “to ensure a better protection for the victims of [] armed conflicts.”

Dean Rusk and the dissent channel

March 18, 1967. Afternoon. Secretary of State Dean Rusk conducts a briefing on Vietnam for state governors in the Fish Room of the White House.

At the White House, with President Lyndon B. Johnson in attendance, US Secretary of State Dean Rusk briefs US governors on the US-Vietnam War. The briefing took place March 18, 1967, not long before Rusk set up a “dissent channel” for State Department diplomats frustrated by US foreign policy. (photo credit)

In my current role as leader of the 38-year-old Dean Rusk International Law Center at the University of Georgia School of Law, I tend to take a close look at any reference to our Center’s namesake, Dean Rusk, who served as the only Secretary of State to Presidents John F. Kennedy and Lyndon B. Johnson.

And so it is with the US diplomatic topic du mois, the “dissent channel” at the Department of State.

This channel is much in the news these days, on account of a Page 1 New York Times story leaking a dissent-channel letter by 51 diplomats at State who want more use of force in Syria than President Barack Obama to date has authorized. (Worth-reading questions about the “leak” here.) And then there was yesterday’s Times story by Ellen Barry, about a dissent-channel “Blood Letter” that forestalled career advancement for the eponymous letter-writing diplomat.

Quite a surprise, amid all this, to read this explanation of the dissent channel, in a transcript of the June 17 Daily Press Briefing by a State Department spokesperson:

“This procedure, this vehicle has been in place since Secretary of State Dean Rusk was in office in 1971.”

Why a surprise? Because by 1971, Rusk was regaling Georgia Law students as the revered Sibley Professor of International Law.

At the briefing, an unnamed reporter took immediate issue with the spokesperson’s account:

QUESTION: And just – can we be clear about when it actually began? Because Rusk, I think, was gone by ’69 when the Nixon Administration came in. So I don’t think he was Secretary of State in 1971, but I could certainly be mistaken.

[ANSWER]: I think it was 1971 and —

QUESTION: Okay.

[ANSWER]: — my reading of the history said that Rusk had something to do with it. But I’m not going to quibble with you —

QUESTION: No, no.

[ANSWER]: — over the history of the program.

Uncharacteristic of these kind of transcripts, the spokesperson’s assertion is supported by a footnote [1]. It says only “William P. Rogers.” That’s the name of the man who became Secretary of State in 1969, after Rusk left government service for the last time. But a quick look at Rusk’s bio on the Department’s site would have confirmed the premise of the reporter’s question.

So what’s right, and wrong?

On the small point of timing, the spokesperson is wrong. But on the larger point of establishing a channel for dissent, unique among the world’s diplomatic services, the account is spot on. To quote a memorial published the year that Rusk died, in the Department’s own publication, Dispatch:

Dean Rusk left his mark not only on the nation and the world, but also on the Department of State as an institution. At a time of tremendous domestic social change, he encouraged minorities and women to enter the Foreign Service. He established the Dissent Channel and the Open Forum to give members of the Department alternative ways to make their foreign policy views known.

Antiquities trafficking said to fuel transnational mayhem by Daesh et al.

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Alumna Tess Davis, 2d from left, met with Georgia Law 1Ls after her lecture; from left, Hannah Williams, Ava Goble & Karen Hays. Hannah will work on cultural heritage issues this summer through a Global Externship Overseas (GEO) at the Cambodia Ministry of Culture & Fine Arts, Department of Intangible Cultural Heritage.

“As long as there have been tombs, there have been tomb raiders.”

So began the terrific talk on trafficking that Tess Davis, Executive Director of the D.C.-based Antiquities Coalition, delivered to a rapt University of Georgia audience this week.

Having conceded the point quoted at top, Davis stressed that today the problem is much different and much greater. On the list of lucrative transnational organized crime, she asserted, antiquities trafficking places 3d, right behind arms trafficking and drug trafficking.

The threat is not simply one of criminal behavior, she continued. Rather, Davis stressed that profits from antiquities trafficking – profits believed to be in the millions of dollars – provide revenue vital for the nonstate actor waging armed conflict in Syria and Iraq. That entity calls itself “Islamic State” and is often labeled “ISIS” or “ISIL” in the media; taking a lead from diplomats in France and, recently, the United States, Davis preferred “Daesh,” the group’s Arabic acronym, for the simple reason that “they hate to be called that.”

Initially trained as an archeologist, Davis began to focus on legal means to combat antiquities trafficking while still a student at Georgia Law. Since earning her J.D. in 2009, she’s been a leader at the Lawyers’ Committee for Cultural Heritage and in the American Society of International Law Cultural Heritage & the Arts Interest Group, a researcher at Scotland’s University of Glasgow, a member of Georgia Law’s Dean Rusk International Law Center Council, and, as the photo above demonstrates, a mentor to Georgia Law students and other young lawyers interested in working in the field. Her efforts to help repatriate antiquities stolen from Cambodia earned multiple mentions in The New York Times.

Her talk drew links between the looting of cultural heritage during and after the 1970s Khmer Rouge reign of terror and current looting in the Middle East today. In both instances, she said, “cultural cleansing” – in the contemporary case, the destruction and thievery of monuments sacred to moderate Muslims and others – precedes and parallels efforts to erase and subjugate the humans who venerate those monuments. It’s a state of affairs documented in her Coalition’s new report, “Culture Under Threat.”

“The world failed Cambodia,”

Davis said, then expressed optimism at growing political will to do something about the Middle East. She advocated enactment of S. 1887, the Protect and Preserve International Cultural Property Act now working its way through Congress. The legislation, whose cosponsors include a Georgia U.S. Senator, David Perdue, is urgent: Davis estimated that U.S. buyers represent 43% of the current demand for looted Syrian antiquities.

Today in Brussels, from an alum & member of our Dean Rusk Council

David-Hull

David Hull, a member of our Dean Rusk International Law Council, today published his thoughts about this morning‘s terrorist attacks in the city with which he 1st became acquainted as a Georgia Law summer study abroad student in the early 1980s: Brussels, Belgium.

A partner and specialist in European Union law at the firm of Van Bael & Bellis, David wrote in the Atlanta legal paper, Daily Report, that he tends to be “sanguine” about bad news, but added that these attacks hit very “close to home,” even in “their sheer randomness.”

He expressed concern about “a tendency to conflate the refugee crisis with the terrorist threat,” and “hope that a settlement can be reached in Syria in the near future and a more stable situation achieved in the Middle East generally.” Both, he concluded, require “leaders with courage and vision to find workable and lasting solutions to unprecedented challenges.”

Our thoughts are with David, his family, and the many other members of the Georgia Law community in and around Belgium, a country with which we’ve partnered since the early 1970s.