June 2010

Please, Can We Stop the Stupid Gaza Piracy Charge?

The Gaza Flotilla raid has launched an unbelievable amount of public commentary related to public international law because so much of the debate is framed around the legality of Israel's raid, its blockade of Gaza, etc.  Some of the discussion has been interesting and useful (see again Kevin's posts on legality of the blockade).  But then there is the continuing...

Why International Law Can’t Resolve the Legality of the Gaza Blockade

I want to take a moment to salute Kevin for his post on the legality of the Gaza blockade, which has drawn a record 94 comments and thousands of page views. Talk about fostering discussion and debate! Kevin has put his finger on the key legal issue: the legality of the blockade.  While the question of whether excessive force was used...

Ken’s Not-Yet-Response re Drone Warfare and Targeted Killing and Professor Alston’s Report

I have been flattered to be called out on the topic of drones, targeted killing, the CIA, and related issues arising mostly from the release today of Professor Philip Alston's UN special rapporteur report (press release here).  Deborah has a useful summary and some important quotes from the press release in her earlier post.  I've read the report once, and am reading it again, but am not ready to comment.  Well, not quite.  I'm under pressure to produce some commentary for some newspaper and print journalism, while getting the grading completed before my faculty's $100 a day late fine kicks in ... sorry to punt, but I'm not quite sure I want to weigh in with a quick blog post as yet on the topic (okay, this gets a little longer than planned, but it's not really a response to the report). I will say, though, that Philip's careful discussion, set against the way in which the State Department frames the issues, is a demonstration once again of the ways in which public international law seems to be increasingly discourses passing in the night.  It's one reason I hesitate to take the issue up here - I'm not persuaded that we all speak a sufficiently shared methodological language in these highly intertwined legal-political issues to be able to do much more than set out a view and the sources that we find persuasive.  The importance of actual historical state practice of leading states, or not, on the one hand, versus the importance of such things as pronouncements of the ICJ or other tribunals or statements by UN bodies or rapporteurs or military manuals of states that don't actually fight, or not, on the other ... you see the problem. So, yes, I endorse the "independent" self-defense view as an alternative legal basis for the use of force, which is to say, I reject the view that uses of force are a binary exhausted by law enforcement and armed conflict (I've posted another round of this discussion and the CIA in the second hearing testimony that I've just posted at SSRN).  Given the existence of an armed conflict with Al Qaeda, among other parties at this point, whether any particular drone strike is an act within the armed conflict or an exercise of independent self-defense is open to interpretation, with the possibility of overlapping rationales in some cases. I endorse the State Department's view of this, as I understand it from Legal Adviser Koh's ASIL speech, and think it nothing novel - merely the reassertion of US legal views - going well back before the Obama, Bush fils, and Clinton administrations, to Reagan and Bush pere, and no doubt well before that even.  If a state cannot or will not control its territory to prevent it from being used as safe haven for terrorists or terrorist groups, then even the important international legal rule of territorial sovereignty can be overcome by an affirmative defense of self-defense; that use of force might be in the form of armed conflict, but it might be something that does not rise to that level of hostilities and thus constitute an act of self-defense use of force simpliciter.  That use of force is justified under jus ad bellum and is directed against the threat - the terrorists - and because it is a use of force, it must meet standards that are, as the Legal Adviser said, the principles underlying armed conflict rules, distinction and proportionality and, I would add, necessity in the first place in determining to target.  Necessity giving rise to self-defense; distinction in defining the target; proportionality in the evaluation of collateral damage.

Samantar Insta-Symposium: The View From the Counsel’s Table

[Prof. Beth Stephens of Rutgers Law School at Camden has litigated and written widely on related issues. Additionally, she served a counsel for one of the (victorious) respondents in the Samantar case.  We are of course honored that she is able to share her views with us. Again, a reminder that "Related Posts" will send you to a collection of all...

Samantar Insta-Symposium: What Samantar Doesn’t Decide

[We are grateful to continue our discussion on Samantar with a comment from Prof. William Dodge of the UC Hastings College of Law. Please keep following us for more thoughts in future posts and click "Related Posts" to see earlier contributions on this question.]   Like my colleague Chimene Keitner, I wrote an amicus brief supporting respondents (co-authored with Mike Ramsey), and...

Samantar Insta-Symposium: Recognizing Personal Responsibility

[In our continuing discussion of Samantar, we are very pleased to share the thoughts of Professor Chimene Keitner, of U.C. Hastings College of Law.  More comments to come soon.] As counsel for Professors of Public International Law and Comparative Law as amici curiae in support of Respondents, I obviously agree with the Court's disposition. As Opinio Juris readers know courtesy of...

The UN’s New Report on Targeted Killing

Cross-posted at Balkinization I hate to interrupt the terrific insta-symposium on the Supreme Court's decision in Samantar already underway at Opinio Juris, but I did want to note the much-anticipated release of Philip Alston’s report as UN Special Rapporteur on Extra-Judicial Killings. I take it the relevant press release and report will be available here. I’m just now paging through...