Tuesday, January 17, 2012

IHL Workshop Simulation: Al Aulaqi

Santa Clara University School of Law recently held our 6th annual International Humanitarian Law (IHL) Workshop, co-hosted with the International Committee of the Red Cross. (See our prior coverage here). Faculty included lawyers with the ICRC, faculty of the JAG Center and School, human rights lawyers, government lawyers, and academics. Participants were mostly law and LLM students drawn from law schools all over the country, with a few foreign institutions represented as well.

Each year, we conclude the Workshop with a final role play/simulation. In the past, we've had students negotiate the text of a statute for an international tribunal to prosecute acts of terrorism or a domestic statute specifically authorizing law-of-war detention beyond whatever is implicit in the 2001 Authorization to Use Military Force (AUMF). (These exercises are posted here). We provide each group with "talking points," but they are expected to formulate the details of their negotiating positions and remain in character throughout the duration of the exercise.

This year we convened mock Congressional hearings to discuss the drone killing of U.S. citizen Anwar al Aulaqi in Yemen in September 2011. Students were assigned to groups representing the Department of Defense, Human Rights First, the ACLU (which brought an unsuccessful suit in federal court on behalf of the decedent's father), the Special Rapporteur on Extrajudicial Killing, Republican & Democratic members of Congress (both hawks and doves), the Department of State, and the Central Intelligence Agency. Each group made an opening statement and then proceeded to give testimony in light of their particular concerns, mandates, and "red lines."

In this regard, participants were forced to grapple with complex questions involving the jus ad bellum and the jus in bello and their interaction. These included:
  1. Whether the jus ad bellum are applicable at all in light of Yemen's apparent consent to the operation.
  2. Whether the jus ad bellum, standing alone, provide for continuous targeting authority for states to employ against dangerous individuals under a self-defense rationale.
  3. The ability of states to advance a self-defense justification for using military force against non-state actors.
  4. Whether the AUMF can be deemed to authorize the use of force against an entity (and individual) that is only tangentially linked to the attacks of 9/11.
  5. Whether domestic authorization to use force is even relevant for discrete attacks that may not rise to the level of "hostilities."
  6. Whether the jus in bello apply in Yemen and, if so, how to identify the predicate armed conflict--the localized conflict against Al Qaida in the region, a globalized conflict against Al Qaida, or a more discrete conflict involving Al Qaida in the Arabian Peninsula (AQAP).
  7. Whether the United States can be deemed a party to the conflict in Yemen being waged between the government and AQAP and, if not, whether there are limitations to the types of actions the U.S. can take in Yemen when assisting governmental authorities.
  8. Whether al Aulaqi was a lawful target, even though he was not directly participating in hostilities at the time of the operation.
  9. Whether continuous targeting authority exists against members of organized armed groups, even if they do not assume classical "combat" functions.
  10. Whether IHL or any other source of law (human rights law, domestic constitutional law, the lex loci, or the jus ad bellum) imposed a requirement to endeavor to capture al Aulaqi in lieu of killing him outright.
  11. If any of the United States' human rights obligations apply extraterritorially or in situations governed by IHL.
Even with only a week's training, the participants did an excellent job of spotting the issues and "representing" their clients. The simulation was followed by a panel discussion involving all faculty on the inter-agency process of formulating U.S. IHL policy.

Applications for next year's workshop will be open in the fall of 2013.

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