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Show Us the Films: Transparency, National Security and Disclosure of Information Collected by Advanced Weapon Systems under International Law

Published online by Cambridge University Press:  30 October 2012

Eliav Lieblich
Eliav Lieblich*
Affiliation:
Lecturer, Radzyner School of Law, Interdisciplinary Center (IDC) Herzliya, Israel; JSD Columbia Law School, LLM Columbia Law School, LLB Hebrew University, elieblich@idc.ac.il. I wish to thank Eyal Benvenisti, Yonatan Berman, Itamar Gelbfish, Maria Varaki, Lihi Yona and the participants in the 2011 international conference ‘New Technologies, Old Law’, organised by the Minerva Center for Human Rights of the Hebrew University in Jerusalem and the International Committee of the Red Cross. Last, but not least, I wish to thank the editorial team at the Israel Law Review for their meticulous analysis and comments. Of course, any error whatsoever, in fact or in law, remains my own.
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Abstract

The advent of modern technology such as drones provides states with unique capabilities to acquire, with ease, high-quality information regarding acts performed by armed forces and agencies, such as (but not only) targeted killings. In some cases, this information can shed light on the facts of the case, when alleged violations of international humanitarian law or international human rights law have occurred and thus investigation is called for. However, although calls for disclosure are increasing, states are reluctant to disclose information relating to such activities. This article discusses potential sources for obligations of disclosure, whether to civil society or to certain international bodies such as the International Criminal Court. In essence, the article posits that disclosure obligations can derive from the principle of transparency, as it applies, inter alia, to investigations, augmented by an emerging positive right to receive information. These obligations must be balanced, in turn, with considerations of national security. The article suggests that this balance, across a wide spectrum of international contexts, should be conducted in light of standards of necessity, proportionality and specificity. Accordingly, blanket non-disclosure may constitute a violation of international law or result in factual inferences to the detriment of states or individuals.

Keywords

international humanitarian lawinternational human rights lawtransparencydisclosuredrones
Type
Articles
Information
Israel Law Review , Volume 45 , Issue 3 , November 2012 , pp. 459 - 491
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2012

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References

1 Two noteworthy examples could be the May 2010 Israeli interception of a Gaza-bound flotilla, and the US killing of Osama bin Laden in March 2011.

2 Beard calls this an ‘unintended’ result of technological advancement: Jack M Beard, ‘Law and War in the Virtual Era’ (2009) 103 American Journal of International Law 409, 411–12.

3 This potential can be also utilised by states to implicate others: for instance, according to media reports, the data-collecting capabilities of drones were employed by the US over Syria, to monitor the regime actions against the opposition: Zvi Bar'el, ‘Report: US Drones Flying over Syria to Monitor Crackdown’ (Ha'aretz, February 2012), http://www.haaretz.com/news/middle-east/report-u-s-drones-flying-over-syria-to-monitor-crackdown-1.413348. We shall address this issue briefly in the context of Israel and Egypt, in Section 4.1.

4 See Beard (n 2) 421 (‘The introduction of virtual surveillance capabilities dramatically increases the pressure on states to deploy information to rebut accusations of misconduct on the part of their military forces’).

5 William A Schabas, ‘Murder in Pakistan’ (PhD Studies in Human Rights, 5 May 2011), http://humanrightsdoctorate.blogspot.com/2011/05/murder-in-pakistan.html (emphasis added).

6 Philip Alston, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Study on Targeted Killings, UN Doc A/HRC/14/24/Add.6, 24 May 2010, para 88; on transparency, accountability and human rights, see Yarwood, Lisa, State Accountability under International Law: Holding States Accountable for a Breach of Jus Cogens Norms (Routledge 2011) 22–23Google Scholar.

7 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV), art 1 (Common to the Four Geneva Conventions); International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 2(1); Human Rights Committee, General Comment 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant (2004) UN Doc CCPR/C/21/Rev.1/Add.13 (GC 31).

8 The term accountability can refer to individuals as well as states. For an in depth discussion of the term, see Yarwood (n 6) 9–34.

9 See, eg, Human Rights Committee, General Comment 34, Art 19: Freedoms of Opinion and Expression (2011) UN Doc CCPR/C/GC/34 para 2 (GC 34).

10 On transparency (and other procedural obligations) and the legitimacy of international law, see Tasioulas, John, ‘The Legitimacy of International Law’ in Besson, Samantha and Tasioulas, John (eds), The Philosophy of International Law (Oxford University Press 2010) 97, 114–15Google Scholar.

11 The Basic Principles and Guidelines on the Right to Remedy and Reparations for Victims of Violations of International Human Rights and Serious Violations of International Humanitarian Law, UNGA 60/147, 16 December 2005, para 3(4) (Basic Principles and Guidelines); see also Seibert-Fohr, Anja, Prosecuting Serious Human Rights Violations (Oxford University Press 2009) 137CrossRefGoogle Scholar.

12 See, eg, McKerr v United Kingdom ECHR 2001-111 475, para 141, 154; Amichai Cohen and Yuval Shany, ‘Beyond the Grave Breaches Regime: The Duty to Investigate Alleged Violations of International Law Governing Armed Conflict’ (2012) Research Paper No 02-12, International Law Forum, The Hebrew University of Jerusalem, 24–25; Seibert-Fohr (n 11) 137. A close concept to investigative transparency is the issue of victim participation. The latter, however, is more concerned with the promotion of ‘restorative’ justice vis-à-vis the victim than with scrutinising the duty to investigate, and thus I will not elaborate on this issue. On victim participation in the ICC, see War Crimes Research Office, American University Washington College of Law, Victim Participation Before the International Criminal Court (2007).

13 Elizabeth Fisher, ‘Transparency and Administrative Law: A Critical Evaluation’ (2010) 63 Current Legal Problems 272, 277.

14 cf Benedict Kingsbury, Nico Krisch and Richard B Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68 Law and Contemporary Problems 15, 37–39. On the many ends that transparency may promote in the administrative context, see Fisher, ibid 276–77.

15 GC 31 (n 7) para 15; Michael N Schmitt, ‘Investigating Violations of International Law in Armed Conflict’ (2011) 2 Harvard National Security Journal 31, 49.

16 McKerr v UK (n 12) para 111; Schmitt, ibid 49–56; see also Kenneth Watkin, ‘Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict’ (2004) 98 American Journal of International Law 20, 33–34; Report of the Committee of Independent Experts in International Humanitarian and Human Rights Laws to Monitor and Assess any Domestic, Legal or Other Proceedings Undertaken by Both the Government of Israel and the Palestinian Side, in the Light of General Assembly Resolution 64/254, including the Independence, Effectiveness, Genuineness of These Investigations and Their Conformity with International Standards, UN Doc A/HRC/15/50, 23 September 2010 (Tomuschat Report), para 32.

17 Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, vol I: Rules (International Committee of the Red Cross, Cambridge University Press 2005) (ICRC Study) rule 158CrossRefGoogle Scholar.

18 See Cohen and Shany (n 12) 4–11.

19 The list of ‘grave breaches’ is supplemented in art 85 of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), (entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I).

20 See Reydams, Luc, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford University Press 2004) 54–55CrossRefGoogle Scholar.

21 See McCormack, Timothy and Oswald, Bruce M, ‘The Maintenance of Law and Order in Military Operations’ in Gill, Terry D and Fleck, Dieter (eds), The Handbook of the International Law of Military Operations (Oxford University Press 2010) 445, 447; Schmitt (n 15) 38Google Scholar.

22 cf Cohen and Shany (n 12) 4–7 with Schmitt (n 15) 39.

23 cf Lior Yavne, ‘Alleged Investigation: The Failure of Investigations into Offenses Committed by IDF Soldiers Against Palestinians’ (Yesh Din, August 2011), http://www.yesh-din.org/userfiles/file/Reports-English/Alleged%20Investigation%20%5BEnglish%5D.pdf, with Military Advocate General, ‘Position Paper Submitted to the Public Commission to Examine the Maritime Incident of May 31, 2010’ (30 December 2010), http://www.turkel-committee.com/files/wordocs/9111emPatzar.PDF (in Hebrew) (MAG Position Paper); Tomuschat Report (n 16); Schmitt (n 15).

24 See Cohen and Shany (n 12) 11. For an elaborate discussion of the dual application of IHL and IHRL in armed conflict, see Arnold, Roberta and Quénivet, Noëlle (eds), International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (Brill 2008)Google Scholar. For rulings by the ICJ on this issue see, eg, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, 240, [25]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories Advisory Opinion [2004] ICJ Rep 136, 178, [106].

25 Cohen and Shany (n 12) 11–13; Tomuschat Report (n 16) paras 29–34.

26 Tomuschat Report, ibid para 32.

27 ibid.

28 See, eg, MAG Position Paper (n 23) 36–38, 78–80.

29 Fisher (n 13) 280–81.

30 cf Cohen and Shany (n 12) para 3.4.1.2.4.

31 General Agreement on Tariffs and Trade (GATT 1947), art XXI(a); see Mavroidis, Petros, Trade in Goods (Oxford University Press 2007) 322–31Google Scholar; and even in this context states have been careful in invoking the national security exception: see Roger P Alford, ‘The Self-Judging WTO Security Exception’ (2011) 3 Utah Law Review 697.

32 See, eg, Oppenheim, Lassa and Roxburgh, Ronald, International Law (vol 1, 2nd edn, Longmans 1912), arts 123–24Google Scholar (defining sovereignty as comprising independence, territorial and personal supremacy); see also Lauterpacht, Hersch, Recognition in International Law (Cambridge University Press 1947) 103Google Scholar.

33 See generally International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’, (December 2001), http://responsibilitytoprotect.org/ICISS%20Report.pdf; UNGA Res A/60/1, 24 October 2005, paras 138–39. On the normative significance of the responsibility to protect – manifested in the delegation of power to international institutions – see Orford, Anne, International Authority and the Responsibility to Protect (Cambridge University Press 2011) 25–27CrossRefGoogle Scholar; Lieblich, Eliav, ‘Consensual Intervention and the Responsibility to Protect’ in Hoffman, Julia and Nollkaemper, André (eds), Responsibility to Protect: From Principle to Practice (Pallas 2012) 139, 139Google Scholar.

34 See Theodor Meron, ‘The Humanization of Humanitarian Law’ (2000) 94 American Journal of International Law 239; see also, generally, Teitel, Ruti GHumanity's Law (Oxford University Press 2011)CrossRefGoogle Scholar.

35 ICCPR (n 7) art 4.

36 Case Concerning the Barcelona Traction, Light and Power Company Ltd (Belgium v Spain) [1970] ICJ Rep 3, [33]–[34].

37 Through the notion of ‘complementarity’, see discussion in Section 6.2.

38 Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90 (ICC Statute), art 72, discussed in Section 5.

39 See ICTY, Prosecutor v Blaskić, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chambers II of 18 July 1997, IT-95-14, Appeals Chamber, 29 October 1997, [65].

40 ibid (‘To admit that a State holding such documents may unilaterally assert national security claims and refuse to surrender those documents could lead to the stultification of international criminal proceedings: those documents might prove crucial for deciding whether the accused is innocent or guilty. The very raison d’être of the International Tribunal would then be undermined').

41 See generally Harold Hongju Koh, ‘Why Do Nations Obey International Law?’ (1997) 106 Yale Law Journal 2599.

42 Regarding the enhanced power of the ICTY to order disclosure, cf Blaskić (n 39) [61]–[69].

43 See, eg, UNSC Res 827, UN Doc S/RES/827, 25 May 1993, para 4 (deciding, under Chapter VII of the UN Charter, that all states shall cooperate fully with the ICTY); ICTY Rules of Procedure and Evidence, UN Doc IT/32/Rev.36, 20 October 2011, art 7bis(A) (providing that when a state fails to comply with obligations provided for in the ICTY Statute, the President shall report the matter to the Security Council).

44 In the US, see, eg, Classified Information Procedures Act, 18 USC App III, s 6(e)(2)(A)–(C); see Alexandra AE Shapiro and Nathan H Seltzer, ‘Litigating Under the Classified Information Procedures Act’ (2009) 45 Criminal Law Bulletin 920 (‘[The law] recognizes that the defendant's right to present his defense and the government's desire to prevent the disclosure of classified information cannot always be accommodated, and in those circumstances, the defendant's constitutional rights must prevail, and the government may choose to forego a prosecution rather than disclose classified information’).

45 For a comparable argument see Beard (n 2) 418–22 (‘the ubiquitous information flowing from persistent surveillance brings with it new expectations, together with unprecedented levels of transparency’).

46 See generally Philip Alston, ‘The CIA and Targeted Killings Beyond Borders’ (2011) 2 Harvard National Security Journal 283.

47 Peter W Singer, ‘Do Drones Undermine Democracy?’ (The New York Times, 21 January 2012), http://www.nytimes.com/2012/01/22/opinion/sunday/do-drones-undermine-democracy.html?_r=1.

48 See Ian Henderson, ‘Civilian Intelligence Agencies and the Use of Armed Drones’ (2010) 13 Yearbook of International Humanitarian Law 133, 137; for a debate, see Kenneth Anderson, ‘Rise of the Drones: Unmanned Systems and the Future of War: Written Testimony Submitted to Subcommittee on National Security and Foreign Affairs, Committee on Oversight and Government Reform’ (2010) US House of Representatives, Subcommittee Hearing, 23 March 2010, 111th Cong, 2nd sess, paras 15–26 (Anderson Testimony I).

49 For instance, one institutional critique asks whether CIA agents are allowed at all to use force under international law, or rather should they be considered ‘unlawful combatants’ as they are not members of a state's armed forces. Not surprisingly, the supporters of the use of drones by the CIA are quick to rebuff such concerns: they find no special objection to the operation of such systems by persons who are not members of armed forces, and proceed to place the CIA's involvement in such operations within the familiar paradigm of non-combatant direct participation in hostilities: see, eg, Anderson Testimony I, ibid paras 22–24 (quoting Mary Ellen O'Connell and Gary Solis); Michael N Schmitt, ‘Drone Attacks Under the Jus ad Bellum and Jus in Bello: Clearing the “Fog of Law”’ (2010) 13 Yearbook of International Humanitarian Law 311, 324–25; see discussion in Henderson (n 48) 142–59 (analysing the possible status of civilian intelligence agents using force in international and non-international armed conflicts).

50 Alston (n 46) 325–26.

51 For an extensive overview of transparency and accountability problems associated with CIA operations see Alston, ibid 352–406.

52 US drone strikes in Pakistan spiked in 2010 to 118, from 33 in 2008 and 53 in 2009. For an updating database of US drone attacks, see New America Foundation ‘The Year of the Drone: An Analysis of U.S. Drone Strikes in Pakistan, 2004–12’ (New America Foundation, 24 August 2012) http://counterterrorism.newamerica.net/drones.

53 For a discussion on both realms, see Schmitt (n 49).

54 Alston (n 6) para 79.

55 ibid para 80.

56 See Anderson Testimony I (n 48) para 21 (presenting this critique as one which has to be addressed by the US).

57 Alston (n 6) paras 81–83.

58 ibid para 84.

59 Intelligence, as distinguished from transparency, although these capabilities go hand in hand.

60 Alston (n 6) para 81; Schmitt (n 49) 320–21; John O Brennan, ‘The Ethics and Efficacy of the President's Counterterrorism Strategy’ (speech delivered at the Woodrow Wilson International Center for Scholars, 30 April 2012), http://www.wilsoncenter.org/event/the-efficacy-and-ethics-us-counterterrorism-strategy.

61 Schmitt (n 49) 321–23.

62 ibid 313–15.

63 See Israel Aerospace Industries, ‘Mosquito’, http://www.iai.co.il/33848-36275-en/BusinessAreas_UnmannedAirSystems_Mosquito.aspx.

64 Elbit Systems, ‘Integrated Infantry Command System’, http://www.elbitsystems.com/elbitmain/default.asp.

65 For instance, synthetic aperture radars (SAR) satellites, such as Israel's TecSar, are based on radar rather than optical imaging: see Israel Aeropsace Industries, ‘TecSar’, http://www.iai.co.il/35083-39439-en/BusinessAreas_SpaceSystems_ObservationSatellites.aspx?btl=1.

66 On kill/capture missions, see Alston (n 46) 333–41.

67 The Associated Press, ‘Obama, National Security Team Watched Bin-Laden Raid in Real Time’ (Ha'aretz, 3 May 2011), http://www.haaretz.com/news/international/obama-national-security-team-watched-bin-laden-raid-in-real-time-1.359564.

68 For an in-depth discussion of the possibility of increased obligations imposed on ‘stronger’ states in IHL – such as, perhaps, those in possession of monitoring information – see Gabriella Blum, ‘On a Differential Law of War’ (2011) 52 Harvard Journal of International Law 164.

69 cf Jean-Francois Quéguiner, ‘Precautions Under the Law Governing the Conduct of Hostilities’ (2008) 88 International Review of the Red Cross 796, 802.

70 See Ariel Porat and Alex Stein, ‘Liability for Uncertainty: Making Evidential Damage Actionable’ (1997) 18 Cardozo Law Review 1891, 1895. I am grateful to Eyal Benvenisti for pointing out this possibility.

71 See Jack Goldsmith, ‘Release the al-Aulaqi OLC Opinion, Or Its Reasoning’, (Lawfare, 3 October 2011), http://www.lawfareblog.com/2011/10/release-the-al-aulaqi-olc-opinion-or-its-reasoning.

72 See Beard (n 2), at 420–21 (exemplifying this practice); for a contemporary example, see Israel Defense Forces, ‘Terrorists Launch Grad Missiles into Israel’ (YouTube, 23 August 2011), http://www.youtube.com/watch?v=uMUVWjoAzR4.

73 Of course, states could always claim that, while monitoring capabilities are admitted in general, these capabilities are constantly improving and thus cannot be exposed. However, this seems a rather weak argument when posed in the face of allegations of serious violations.

74 Anderson Testimony I (n 48) paras 3, 27–30.

75 ibid para 28.

76 Alston (n 6) paras 13–26.

77 ibid paras 87–91.

78 ibid para 92.

79 ibid para 91.

80 ibid para 93.

81 Human Rights Watch, ‘Press Release: Killing of Osama bin Laden’ (4 May 2011), http://www.hrw.org/news/2011/05/04/killing-osama-bin-laden.

82 Amnesty International, ‘Questions Around Operation Against Osama bin Laden’ (4 May 2011), http://www.amnesty.org/en/news-and-updates/questions-around-operation-against-osama-bin Laden-2011-05-04.

83 Amnesty International, ‘USA Urged to Clarify Basis for Drone Killings in Pakistan’ (31 January 2011), http://www.amnesty.org/en/news/usa-urged-clarify-basis-drone-killings-pakistan-2012-01-31.

84 Harold Hongju Koh, ‘The Obama Administration and International Law’ (speech delivered at the Annual Meeting of the American Society of International Law, 25 March 2010), http://www.state.gov/s/l/releases/remarks/139119.htm; Eric Holder (speech delivered at Northwestern University School of Law, 5 March 2012), http://opiniojuris.org/2012/03/05/ag-holders-national-security-speech-text. For an analysis see Robert Chesney, ‘Holder on Targeted Strikes: The Key Passages, with Commentary’, (Lawfare, 5 March 2012), http://www.lawfareblog.com/2012/03/holder-on-targeted-strikes-the-key-passages-with-commentary.

85 Albeit not mentioning the CIA: Brennan (n 60).

86 Kenneth Anderson, ‘Rise of the Drones II: Examining the Legality of Unmanned Targeting: Statement Before the Subcommittee on National Security and Foreign Affairs of the Committee on Oversight and Government Reform’ (2010) US House of Representatives, Subcommittee Hearing, 28 April 2010, 111th Congress 2nd sess, paras 6–10. On the general blurring of the legal justification for US drone attacks, see Laurie R Blank, ‘Targeted Strikes: The Consequences of Blurring the Armed Conflict and Self-Defense Justifications’ (2011) Emory Public Law Research Paper, 11-182, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1981379.

87 cf Alston (n 6) para 22.

88 See American Civil Liberties Union (ACLU), ‘ACLU Credits White House for Drone Strike Transparency, but Says Program Still Unlawful’ (30 April 2012), http://www.aclu.org/national-security/aclu-credits-white-house-drone-strike-transparency-says-program-still-unlawful.

89 See Steve Charnovitz, ‘Nongovernmental Organizations and International Law (2006) 100 American Journal of International Law 348, 354–55.

90 Alston (n 46) 402.

91 In Canada, for instance, see Corrections and Conditional Release Act (1992) (Canada), s 142(1).

92 For instance, in Israel, non-statutory, internal administrative instructions that have a bearing over individuals' rights are required by the courts to be effectively publicised: see HCJ 3930/94 Jazmawi v Minister of Health 1994 PD 48(4) 778.

93 For an overview of freedom of information legislation across the world, see Right2Info, ‘Access to Information Laws: Overview and Statutory Goals’, http://right2info.org/access-to-information-laws/access-to-information-laws-overview-and-statutory#_ftnref7.

94 Freedom of Information Act, 1998 (Israel), s 14(a) (Israeli FOIA); Freedom of Information Act 2000 (UK), s 23.

95 5 USC § 552.

96 ACLU, ‘Request Under Freedom of Information Act’ (13 January 2009), http://www.aclu.org/files/assets/2010-1-13-PredatorDroneFOIARequest.pdf (ACLU Request I).

97 ibid 5.

98 ACLU, ‘Complaint for Injunctive Relief’ (16 March 2010), http://www.aclu.org/national-security/aclu-v-doj-et-al-complaint (ACLU Complaint II).

99 Added later as a defendant: ACLU v Department of Justice, Civil Action No 10-0436 (RMC) 2011 WL 4005324 (DDC) 1.

100 ACLU Complaint II (n 98) para 25. Exemption b(1) excludes the disclosure of matters established by an Executive order to be kept secret in the interest of national defense or foreign policy; b(3) refers to exemptions provided by specific legislation.

101 Phillippi v CIA 546 F2d 1009 (DC 1976). For a discussion of the origins of the Glomar response see Nathan Freed Wessler, ‘“We Can Neither Confirm Nor Deny the Existence or Nonexistence of Records Responsive to Your Request”: Reforming the Glomar Response under FOIA’ (2010) 85 New York University Law Review 1381, 1386–88.

102 Alston (n 46) 403.

103 Wessler (n 101) 1394–95.

104 As of the date of writing this article, at least two other major disclosure requests have received the Glomar response. In December 2011, The New York Times filed an FOIA-based lawsuit against the US Department of Justice (DoJ), after having its FOIA requests denied by the DoJ. The lawsuit demands the disclosure of the legal memoranda that serves the basis for targeted killing operations, and particularly the targeting of US citizens in such operations. In this case, too, the DoJ claimed, concerning parts of the request, that the material is classified and privileged, and issued a Glomar response towards other aspects of the request: See ‘Complaint Against United States Department of Justice’ (The New York Times, 20 December 2011, paras 39–40, 46), http://www.medialaw.org/Content/NavigationMenu/Publications1/MLRC_MediaLawDaily/Attachments3/times_v_state_dept_complaint.pdf. The ACLU, in further litigation pursued after the targeting of US citizens, filed another FOIA lawsuit, in February 2012. It explicitly demanded the disclosure of the legal and factual basis of the targeted killing programme, and specifically regarding the targeting of US citizens. The CIA and DoJ issued, once again, a Glomar response: see ACLU, ‘Complaint for Injunctive Relief’ (1 February 2012, paras 30–46), http://www.aclu.org/files/assets/tk_foia_complaint.pdf.

105 cf Wessler (n 101) 1397–98, 1403–06.

106 ibid 1408.

107 See example in Wessler, ibid 1389–90.

108 Gardels v CIA 689 F2d 1100, 1103 (DC 1982); see also ACLU v DoJ (n 99) 5–6.

109 For a similar claim, see Wessler (n 101) 1396–98.

110 ACLU v DoJ (n 99) 13.

111 ibid 9–14.

112 ibid 13.

113 Judicial Watch v DoD CA11-980 (DC 2012) 1.

114 ibid 1–2, 5 (the CIA relied on FOIA exemptions 1 and 3).

115 ibid 21 (pursuant to § 1.4 of Executive Order 13526, classification of material must pertain to one of eight categories of information; in addition, it is required that disclosure could be reasonably expected to result in describable damage to national security).

116 ibid.

117 ibid 35.

118 ibid 35–36.

119 AdminC (TA) 2320/07 The Movement for Freedom of Information and Another v Chief of Staff of the IDF and Others, Petition under the Freedom of Information Act, 1998 (undated 2007) (in Hebrew, on file with author) (FOIA Petition).

120 ibid paras 14–15; Israeli FOIA (n 94) s 9(a)(1).

121 FOIA Petition (n 119) para 14.

122 AdminC (TA) 2320/07 The Movement for Freedom of Information and Another v Chief of Staff of the IDF and Others, 12 December 2007, http://www.meida.org.il/wp-content/uploads/2007/12/Lynch%20verdict.pdf (in Hebrew). The Court did not rule on the foreign relations claims advanced by the state.

123 Wessler (n 101) 1394–95.

124 See also Alston (n 46) 404 (‘The bottom line is that civil society groups, confronted with the systematic application of such freedom of information restrictions … have little prospect of being able to obtain meaningful information about extraterritorial targeted killings activities’).

125 ibid 318, 432.

126 ICCPR (n 7) art 19(2)–(3).

127 European Convention on Human Rights and Fundamental Freedoms (entered into force 3 September 1953) 213 UNTS 222 (ECHR), art 10.

128 See Robert R Wilson, ‘Editorial Comment: International Law and Proposed Freedom of Information’ (1945) 39 American Journal of International Law 790.

129 Human Rights Committee, General Comment 10, Art 19: Freedoms of Expression (1983) UN Doc CCPR/C/GC/10.

130 GC 34 (n 9) paras 18–19; see also United Nations Special Rapporteur on Freedom of Opinion and Expression, OSCE Representative on Freedom of the Media and OAS Special Rapporteur on Freedom of Expression, ‘International Mechanisms for Promoting Freedom of Expression, Joint Declaration’ (6 December 2004), http://www.osce.org/fom/38632 (declaring that the right to access information is a ‘fundamental human right’ and setting forth principles for its implementation).

131 GC 34 (n 9) para 21.

132 ibid para 30.

133 ibid paras 34–35.

134 On the practice of ‘shadow reports’, see Otto, Dianne, ‘Institutional Partnership or Critical Seepages? The Role of Human Rights NGOs in the United Nations’ in Baderin, Mashood A and Ssenyonjo, Manisuli (eds), International Human Rights Law: Six Decades After the UDHR (Ashgate 2010) 317, 321–23Google Scholar.

135 See Kingsbury, Krisch and Stewart (n 14); see also Eyal Benvenisti, ‘The Interplay Between Actors as a Determinant of the Evolution of Administrative Law in International Institutions’ (2005) 68 Law and Contemporary Problems 319, 319 (2005).

136 Kingsbury, Krisch and Stewart (n 14) 17.

137 ibid 16–17, 21–22.

138 ibid 17.

139 ibid 40–41.

140 The discussion in this section should not be understood as applying specifically to states or cases mentioned in earlier sections. This is partly because some of these states are not parties to the ICC Statute, but mostly because our discussion here is forward-looking and normative.

141 ICC Statute (n 38).

142 ibid art 66(2).

143 ibid art 67(1)(i).

144 See Geert-Jan Alexander Knoops and Robert R Amsterdam, ‘The Duality of State Cooperation Within International and National Criminal Cases’ (2007) 30 Fordham International Law Journal 260, 263–64.

145 ICC Statute (n 38) art 17(1)(a).

146 ICC, Office of the Prosecutor, ‘Informal Expert Paper: The Principle of Complementarity in Practice’, ICC-01/04-01/07-1008-AnxA, 30 March 2003 (The Principle of Complementarity), para 2; Markus Benzing, ‘The Complementarity Regime of the International Criminal Court: International Criminal Justice Between State Sovereignty and the Fight Against Impunity’ (2003) 7 Max Planck Yearbook of United Nations Law 591, 595–600 (outlining the rationales of the notion of complementarity).

147 The Principle of Complementarity, ibid para 3.

148 Benzing (n 146) 598.

149 The Principle of Complementarity (n 146) paras 33–42, 44–47, 51–52.

150 cf ibid para 55 (addressing the shifting of the burden concerning questions of admissibility). Arguably, lack of transparency can be remedied, to some extent, during the preliminary process as outlined in the ICC Statute (n 38) art 18. See Benzing (n 146) 624–25.

151 The Principle of Complementarity (n 146) para 56 (referring to exclusive or superior access to information as a basis for shifting the burden of proof regarding the determination whether domestic procedures were ‘genuine’.)

152 This is possible, for instance, when independent Humanitarian Law Commissions are established, in a manner that balances between public scrutiny and required military secrecy. See Cohen and Shany (n 12) para 5.2. In some continental legal systems, notably in France, investigations are generally secret by default: Act No 2000-415 of 15 June 2000, Code of Criminal Procedure, art 11 (‘Except where the law provides otherwise and subject to the defendant's rights, the inquiry and investigation proceedings are secret’).

153 cf Benzing (n 146) 603 (‘according to the wording of Article 17, the Court will always assess the situation in a state merely in relation to a specific case, rather than make a general and all-embracing examination of the system as such. Nevertheless … the Court will not simply notarise the exercise of jurisdiction by a state. They [the terms in the article] require a certain degree of scrutiny of the quality and standard of national proceedings’).

154 See The Principle of Complementarity (n 146) para 35.

155 ibid.

156 Although it was authorised to hear the testimonies of top IDF commanders: see State of Israel, Government Decision No 1796, 14 June 2010 (in Hebrew), http://turkel-committee.gov.il/content-50.html.

157 Note that I refer to the Israeli commission only by way of example of an investigatory body with somewhat diminished powers, and do not otherwise pass judgment regarding its specific merits.

158 ICC Statute (n 38) art 86.

159 ibid art 87.

160 ibid art 93(i).

161 ibid arts 72, 93(4)–(5). For a survey of these articles, see Susan Rose-Ackerman and Benjamin Billa, ‘Treaties and National Security’ (2008) 40 New York University Journal of International Law and Politics 437, 475–79.

162 Seibert-Fohr (n 11) 3.

163 ICC Statute (n 38) art 72(5)(d). Experience shows that the Court will not be too reluctant to conduct such proceedings: see Alex Little, ‘Secrecy at the International Criminal Court’ (2010) 103 American Society of International Law Proceedings 232.

164 ICC Statute (n 38) art 72(6). However, specificity is not required if a ‘specific description of the reasons would itself necessarily result in such prejudice’ to national security.

165 ICC Statute (n 38) art 72(7)a(ii). In doing so, perhaps the Court will follow the balance between disclosure and national security concerns as set out by the ICTY in Blaskić (n 39) [61]–[69]; it should be noted, however, that the ICTY has power to positively order disclosure, which is largely lacking in the ICC Statute. See Knoops and Amsterdam (n 144) 276–77. For an in-depth analysis of national security concerns and the ICTY, see Laura Moranchek, ‘Protecting National Security Evidence while Prosecuting War Crimes: Problems and Lessons for International Justice from the ICTY’ (2006) 31 Yale Journal of International Law 477.

166 Rose-Ackerman and Billa (n 161) 479; Asa W Markel, ‘The Future of State Secrets in War Crimes’ (2007) 16 Michigan State Journal of International Law 411, 419–20.

167 Blaskić (n 39) [61]–[69].

168 ICC Statute (n 38) art 72(7)(a)(iii).

169 See Khan, Karim AA and Azarnia, Gissou, ‘Evidentiary Privileges’ in Khan, Karim AA, Buisman, Caroline and Gosnell, Christopher (eds), Principles of Evidence in International Criminal Justice (Oxford University Press 2010) 551, 584Google Scholar.

170 See Behrens, Hans-Jŏrg, ‘Protection of National Security Information in the ICC: A Guide to Article 72 of the Rome Statute’ in Roggermann, Herwig and Šarčević, Petar (eds), National Security and International Criminal Justice (Martinus Nijhoff 2002) 115, 125Google Scholar.

171 See Knoops and Amsterdam (n 144) 276–77.

172 On this dilemma, see Behrens (n 170) 125.

173 Case Concerning Avena and Other Mexican Nationals (Mexico v United States of America) [2004] ICJ Rep 12 (Avena), [55]; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), Jurisdiction and Admissibility, Judgment [1984] ICJ Rep 437, [101].

174 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) Judgment [2007] ICJ Rep 43, [181], [208].

175 United Nations, Statute of the International Court of Justice, art 49, http://www.unhcr.org/refworld/docid/3deb4b9c0.html.

176 International Court of Justice, Rules of the Court (entered into force 1 July 1978), art 62(1), http://www.icj-cij.org/documents/index.php?p1=4&p2=3&p3=0/; Avena (n 173) Declaration of Vice-President Ranjeva, [4]. This is true although the Court rejects the Anglo-American divide between burden of proof and burden of production: ibid [2].

177 ibid [5]–[6]; cf European Court of Human Rights, Rules of Court (entered into force 1 February 2012), rule 44(c)(1), http://www.echr.coe.int/NR/rdonlyres/6AC1A02E-9A3C-4E06-94EF-E0BD377731DA/0/REGLEMENT_EN_2012.pdf.

178 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro), Provisional Measures, Order of 13 September 1993 [1993] ICJ Rep 325, Separate Opinion of Judge Lauterpacht, [67].

179 ibid [205].

180 ibid.

181 ibid [206].

182 Corfu Channel (United Kingdom v Albania), Judgment [1949] ICJ Rep 18 (the Court here referred to exclusive control that is a product of ‘exclusive territorial control’ but the reasoning must apply to any case of such control). In Avena (n 173), the US claimed that the burden of production under international law should be on the party in exclusive control of the evidence; this claim was based on the distinction between burdens of proof and production. See, eg, McCormick, Charles T, Handbook on the Law of Evidence (5th edn, West Publishing 1999) 342Google Scholar; Microsoft v i4i, 131 SCt 2238, 2245, n 4, (2011) (on this distinction). This distinction was not accepted as such by the ICJ, but this fact should be understood in light of the Court's general authority to order parties to disclose evidence, which makes the question of the burden of production less acute: Avena (n 173) [56]–[57]. Thus, the logic of inference of facts when states refuse to disclose material under their exclusive control still stands.

183 See Théo Boutruche, ‘Credible Fact-Finding and Allegations of International Humanitarian Law Violations: Challenges in Theory and Practice’ (2011) 16 Journal of Conflict and Security Law 105, 112–15.

184 Report of the Secretary General's Panel of Inquiry on the 31 May 2010 Flotilla Incident (September 2011, para 127), http://www.un.org/News/dh/infocus/middle_east/Gaza_Flotilla_Panel_Report.pdf (emphasis added).

185 cf Alston (n 46) 318 (‘national insistence on the adequacy of domestic procedures can never be considered a substitute for the degree of transparency required to enable the international community to discharge its separate monitoring obligations’).