In association with the International Commission of Jurists

March 2013

10 Mar

I'm grateful to Ken, Wells Bennett, and Marcy Wheeler for speculating that my April 2010 blog post on 18 USC 1119, the foreign-murder statute, is the post referred to in today's New York Times article on the behind-the-scenes machinations that culminated in the CIA using a drone to kill Anwar al-Awlaki. I imagine they are correct; the post fits the timeline...

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09 Mar

"Three years ago I could never have dreamed that we would be selling our tomatoes directly to the restaurants in Manila," said Johnny Rola. Just a few years ago the poor farmers in this mountain village in northern Philippines had little hope. They would grow a few staple crops and sell it at the local farmers market. They were...

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09 Mar

Was our very own Kevin Jon Heller, and one of his OJ posts, responsible for causing David Barron and Marty Lederman (widely taken as authors of the Justice Department's OLC opinion on the lawfulness of targeting Anwar Al-Awlaki with lethal force) to rewrite their memorandum?  Wells Bennett at Lawfare points to an extraordinary passage appearing in a lengthy story in today's...

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09 Mar

I hope soon to get more directly to the important news of the prosecution of former Al Qaeda spokesman Sulaiman Abu Ghaith in U.S. federal court in New York and much else of interest in our pages, but I didn’t want to let pass without comment the also important piece in the Washington Post this week that the Obama Administration is examining whether it should seek to extend the legal authorization for targeted killing operations beyond those groups currently identified by the 2001 Authorization for Use of Military Force (AUMF). Per The Post: “The debate has been driven by the emergence of groups in North Africa and the Middle East that may embrace aspects of al-Qaeda’s agenda but have no meaningful ties to its crumbling leadership base in Pakistan. Among them are the al-Nusra Front in Syria and Ansar al-Sharia, which was linked to the September attack on a U.S. diplomatic post in Benghazi, Libya. As the article rightly explains, these are “militant groups with little or no connection to the organization responsible for the attacks on Sept. 11, 2001.” The AUMF has been the cornerstone of U.S. domestic authority to detain and target members of the Taliban, Al Qaeda and “associated forces,” but it is limited by its terms, by Administration interpretation, and by the courts to uses of force against these groups. As the U.S. prepares to leave Afghanistan and as the Al Qaeda that attacked the United States on 9/11 collapses, the AUMF is of decreasing import. More, as Steve Coll recently wrote, distinguishing the AUMF’s target groups from various violent Jihadi successor groups in Yemen, Mali and elsewhere: “A franchise is a business that typically operates under strict rules laid down by a parent corporation; to apply that label to Al Qaeda’s derivative groups today is false.” So if the AUMF doesn’t authorize the use of force against the next generation of terrorist organization, what should we do?
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09 Mar

This week on Opinio Juris, Kevin argued why the OPCD's small victory over the return of documents seized by Libya may be important in the longer run because of its consequences for Libya's admissibility challenge. He also quoted from Libya's latest submission on the admissibility challenge to argue why it should lose the challenge. Shifting his focus to the US, Kevin asked...

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09 Mar

[Moria Paz is a Fellow in International Law at Stanford Law School.] This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. First of all, let me express my thanks to Efrat Arbel for her careful and thoughtful reading, as well as for her comments, for which I am grateful. Arbel and I largely agree on the descriptive analysis of case law in this area, which forms the bulk of the paper, although we may have partially divergent perspectives on the implications. In my comment, I very briefly recap the descriptive component and then discuss the normative elements of the study. In the paper, I used case law to demonstrate a significant disconnect between official rhetoric in human rights law and much narrower judicial practice in cases bearing on language. Formal pronouncements of the regime as well as prominent human rights scholars celebrate linguistic heterogeneity and seek to harness the international legal regime to protect, indeed even to create, linguistic and cultural diversity. When cases bearing on language reach major human rights courts and quasi-judicial institutions, and especially the United Nations Human Rights Council (UNHRC) and the European Court of Human Rights (ECtHR), these enforcement institutions do not in fact demand that states accommodate substantive diversity. The UNHRC and the ECtHR are not prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Although they operate under different doctrinal structures, these two adjudicative bodies reach a similar legal outcome: they consistently allow the state to incentivize assimilation in the public sphere (on fair terms) into the dominant culture and language of the majority.
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08 Mar

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.] On Monday, Mohamed Ali Samantar filed a cert petition asking the Supreme Court to review the Fourth Circuit’s decision that he is not entitled to conduct-based immunity in a suit brought under the Alien Tort Statute and Torture Victim Protection Act alleging torture, arbitrary detention, and extrajudicial killing. In 2010, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) did not apply to the immunities of foreign officials, which continue to be governed by federal common law. On remand, the State Department determined that Samantar did not enjoy immunity, the District Court followed the State Department’s determination, and the Court of Appeals affirmed. The Fourth Circuit held: (1) that while State Department determinations of status-based immunity (e.g. head-of-state immunity) are entitled to absolute deference, State Department determinations of conduct-based immunity for official acts are entitled only to substantial weight; and (2) that foreign officials are not entitled to conduct-based immunity for violations of jus cogens norms. I have previously explained why I believe that decision to be fundamentally correct. Samantar’s cert petition argues that the Fourth Circuit’s decision conflicts with the decisions of the Second Circuit in Matar v. Dichter, the D.C. Circuit in Belhas v. Ya’alon, and the Seventh Circuit in Ye v. Zemin, each of which refused to recognize a jus cogens exception to the immunity at issue. In Matar, the Second Circuit deferred to the State Department’s determination that the defendant was entitled to conduct-based immunity and refused to override that determination by finding a jus cogens exception. But in Samantar, the State Department has determined that the defendant is not entitled to conduct-based immunity, so the question whether to recognize a jus cogens exception was never presented. Belhas was decided on the assumption—now corrected by the Supreme Court’s 2010 Samantar decision—that the Foreign Sovereign Immunities Act (FSIA) governed the immunity of foreign officials and held that there is no jus cogens exception to the FSIA, a conclusion that prior decisions had reached in suits against states. Ye held that there was no jus cogens exception to head-of-state immunity, an immunity that attaches because of an official’s status as a sitting head of state. In each of these cases, the question was whether to recognize an exception to an immunity that had—for one reason or another—already attached. The question in Samantar, by contrast, is not whether to recognize a jus cogens exception to an immunity that has already attached, but the antecedent question whether jus cogens violations can be taken in an official capacity so that conduct-based immunity attaches in the first place. As Judge Stephen Williams noted in his concurring opinion in Belhas, the question whether an immunity attaches is “quite distinct” from the question whether to recognize exceptions to an existing immunity. The Fourth Circuit’s decision in Samantar is the first Court of Appeals decision to say whether jus cogens violations can constitute official acts for purposes of conduct-based immunity. My friend Curt Bradley has suggested that distinguishing these two questions is just semantics. To see why it is not, it may be useful to step back and consider how immunity generally works. All immunity questions proceed in three basic steps: (1) who is covered, (2) what is covered, and (3) is there an exception. I will use state immunity, status-based immunity, and conduct-based immunity as illustrations, but one could ask the same questions with respect to diplomatic and consular immunities.
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08 Mar

In honor of International Women's Day today, the Guardian has posted a graphic map of political rights for women around the world. North Korea threatened to launch a preemptive nuclear strike on the United States yesterday; even though they lack the range to hit the US, South Korea and Japan could be realistic targets. The UN slapped new sanctions on North...

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07 Mar

As everyone likely knows by now, Rand Paul has ended his remarkable talking filibuster because Attorney General Holder officially responded "no" to the question "Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?" Is it just me, or does Holder's answer actually raise more questions than it answers? (1)...

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07 Mar

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. In my previous response to Ashley Deeks’ article, "Consent to the Use of Force and the Supremacy of International Law," I examined some of the practical, doctrinal, and systemic implications associated with Deeks’ challenge to international law supremacy. As I noted there, I do think the problem of unreconciled consent requires attention, if not a solution, in the use of force context. I would prefer that solution to come from domestic law. Nonetheless, to the extent international law is asked to fix this problem, I’d like to explore the context in which it would have to do so, and suggest an alternative solution to the problem that avoids giving domestic law supremacy over host State consent. Deeks suggests her duty to inquire (and the invalidity of any subsequent unreconciled consensual agreements) could arise via state practice or a modification to VCLT Article 46. I think both paths are problematic if State consent takes a treaty form (in contrast, if it’s a political commitment, I think a total or partial override of that commitment in favor of domestic law is much easier). In the treaty context, State practice favoring a duty to inquire runs up against VCLT Article 42(1):
1. The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention.
This isn’t to say customary international law cannot override States’ treaty obligations under the VCLT (or the VCLT’s status as customary international law) but it’s not as simple an analysis as if States were creating a duty to inquire on a clean slate. The VCLT purports to be an “exclusive” list of grounds for invalidating State consent, which cuts against finding new or additional grounds for invalidity even in the use of force context.
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07 Mar

The rebel leader whose followers invaded Sabeh has called for a ceasefire with Malaysia. According to US Attorney General Eric Holder, President Obama will release more information about the US drone program; further commenting on the program, Holder did not rule out drone strike attacks on US soil in extraordinary circumstances akin to 9/11. US and European officials are worried about the rise in English-language videos coming...

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