In association with the International Commission of Jurists

May 2014

10 May

A busy week on Opinio Juris with a book symposium on Just Post Bellum-Mapping the Normative Foundations. Kristen introduced the great definitional debate on the meaning of "just post bellum" (JPB). Jens Iversion contrasted JPB with transitional justice and Ruti Teitel discussed JPB as transitional justice. Jens Ohlin argued in his post that ideas about omission liability are stumbling blocks towards the acceptance of JPB. Where...

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09 May

[David J. R. Frakt, Lt. Col., USAFR, is a legal scholar and former lead counsel, Office of Military Commissions-Defense.] I wanted to weigh in on the debate between my esteemed colleagues Steve Vladeck, Peter Margulies and Kevin Jon Heller at Just Security, Lawfare and Opinio Juris, on the issue of the existence of an armed conflict at the time of Mr. Al Nashiri’s alleged offenses and the critical questions of who should decide this issue, and when.  Peter argues that this is a question of fact best decided by the panel of military officers who will serve as jurors in the military commissions.  Al Nashiri’s defense team asserts that this is a question of law and they are asking the D.C. District Court to rule that the attack on the USS Cole in Yemen in 2000 was not part of an armed conflict.  As there was no armed conflict ongoing, so goes their argument, the law of armed conflict does not apply and his actions could not be considered a violation of the law of war; further, because military commissions are courts of limited jurisdiction with power only to try and punish violations of the law of war, the federal court should enjoin any further proceedings at Guantanamo.  It should be noted that Al Nashiri has already raised this matter in a pretrial motion in the military commission, seeking to have the charges dismissed by the military judge on the grounds that the commission lacks jurisdiction over his alleged offenses because they did not take place in the context of an armed conflict.  Judge Pohl declined to dismiss the charges, characterizing the issue as primarily a question of fact for the jury (Ruling AE104F).  Judge Pohl also acknowledged that the question was a “jurisdictional question subject to purely legal determination” but claimed that he must make this determination using a “wide deference” standard.”  Applying this standard, he found that the Congressional authorization to try offenses that occurred prior to 9/11, coupled with the fact that charges had been filed by the prosecutor, referred to trial by the Convening Authority, and not withdrawn by the Secretary of Defense or the President was sufficient to establish the existence of an armed conflict at the time of the offenses for jurisdictional purposes.  This determination is essentially tantamount to a finding that he considered there to be sufficient evidence to submit the question to a jury.  However, he left open the possibility of reconsideration at a later time, presumably in the form of a motion for a directed verdict at the close of the prosecution’s case.
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09 May

[Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University, and Programme Director of the Grotius Centre for International Legal Studies.] Jus post bellum comes in many forms and variations. One of the main shortcomings in existing discourse is the lack of engagement with the interplay between law and morality. Like the laws of war, and the...

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09 May

[James Pattison is a Senior Lecturer in Politics, University of Manchester.] It’s often been claimed that there exists a responsibility to rebuild after war on behalf of the international community in cases such as Afghanistan, Iraq, Kosovo, Somalia, and so on. For instance, this was one of the key tenets of the report by the International Commission on Intervention and State Sovereignty...

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08 May

[Hayk Kupelyants is a PhD candidate at the University of Cambridge] Pari passu clauses remain perhaps the most nebulous clauses found in sovereign bonds. Among varying wordings, the clause in its simplest form provides that the bonds will rank pari passu (i.e., on equal footing). The clause puzzled many academics and has given rise to legal battles before national courts, for it is undeniable that the state is not subject to a bankruptcy regime where the pari passu treatment is naturally well-fitted. Two interpretations have been offered to demystify the function of the pari passu in sovereign debt bonds. The first and the most controversial of these constructions argues that the clause requires equal payment to all, even holdout, bondholders. Recently, the Second Circuit Court of Appeal in NML v Argentina has endorsed this interpretation of the pari passu clause. Under this construction of the clause, a sovereign debtor is obliged to pay to all bondholders, even those who held out from the sovereign debt restructuring. The pari passu clause can thus become a powerful tool in the hands of holdout creditors which seek to reclaim the full value of the bonds they hold by claiming that the state is in breach of the pari passu clause by the mere fact of refusing to pay up. Many academics have argued that this interpretation of the pari passu clause is too far-fetched (at least for the pari passu clauses that do not expressly refer to ‘payment’ in their wording). On its face, pari passu clauses simply require equal (legal) ranking, whereas the payment under bonds is a question of factual performance of the contract and not a question of priorities or ranking. The second and the conventional interpretation of the pari passu clause argues that the clause merely ensures equal legal ranking and no factual equality in terms of payment. By this, the sovereign debtor would be under no obligation to pay to all bondholders. Two counter-arguments spring to mind.
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08 May

A constitutional challenge is in the works to Foreign Account Tax Compliance Act, the anti-offshoring tax measure that is the bane of ordinary US citizens worldwide. The law adds a burdensome layer of administrative requirements to longstanding citizenship-based tax liabilities. If you're an American living in France, say hello to thousands of Euros in accountant fees. Foreign banks are a key location...

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08 May

[Dov Jacobs is an Assistant Professor of International Law at the Grotius Centre for International Legal Studies, Leiden University and comments on international law issues at Spreading the Jam.] Carsten Stahn, Jennifer Easterday and Jens Iverson have edited a comprehensive and rich volume on the law applicable in the aftermath of conflict, also known as Jus Post Bellum. This book covers...

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07 May

[Cymie R. Payne is Assistant Professor in the Department of Human Ecology at Rutgers University and the School of Law - Camden.] In my contribution to Jus Post Bellum: Mapping the Normative Foundations, I claim that: Existing treaty law prohibits some infliction of environmental damage, but only if it is “widespread, long-term and/or severe.” There is evidence of state practice recognizing the importance...

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07 May

[Christine Bell is Assistant Principal (Global Justice), Professor of Constitutional Law, University of Edinburgh.]  A big congratulations on the editors for the new volume on Jus Post Bellum.  It is a great resource for those interested in all aspects of the debate and forms a comprehensive mapping of a broad range of perspectives. One of the interesting aspects of the book is...

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07 May

We have a new challenger in the competition for worst decision by a military commission ever! Judge Pohl has now issued an order in al-Nashiri concluding that Charge IX, Hijacking or Hazarding a Vessel or Aircraft, states a violation of the international laws of war. Here is the definition of that "war crime," 10 U.S.C. § 950t(23): (23) Hijacking or hazarding a vessel or aircraft.— Any person...

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07 May

[Jennifer Easterday is a researcher for the Jus Post Bellum Project at the Grotius Centre for International Legal Studies, Faculty of Law, Leiden University.] In my chapter of this volume, I suggest that jus post bellum should be considered as a broad, holistic concept that includes different functions: jus post bellum as providing a body of norms, as an interpretive framework,...

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