In association with the International Commission of Jurists

June 2014

30 Jun

Canada last week enacted a major amendment (Bill C-24) to its citizenship law. As a general matter it makes citizenship harder to get and easier to lose. Residency periods for naturalization are lengthened and physical presence requirements toughened up, English and civics tests will apply more broadly, and naturalization fees are tripled. This on top of the elimination of the...

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29 Jun

Call for papers Professor Julian Killingley and Dr Jon Yorke are calling for contributions to a new volume on "International Law and American Exceptionalism", to be published in the Ashgate Series: Controversies in American Constitutional Law. This edited collection engages with the controversies surrounding the relationship of international law and American domestic law. It deals with a variety of approaches to the...

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28 Jun

On Friday, Ukraine, Moldova, and Georgia signed the Association Agreements with the European Union that have been at the center of so much controversy among Russia, the EU, and these states. Preventing Ukraine, Moldova and Georgia from signing these agreements had become an important foreign policy goal for Moscow (see, for example: 1, 2, 3) after significant pressure, and perhaps some incentives, from Moscow, former Ukrainian President Yanukovich’s decided at the last minute not to sign the agreement at the EU’s summit in Vilnius in November precipitated the demonstrations that began in Kiev. Those were followed by Yanukovich fleeing, Russia’s intervention in and annexation of Crimea, and the ongoing tensions over the future of Ukraine. Moldova and Georgia have also faced threats of economic and/or energy embargoes as well as the ongoing Russia-backed separatist issues in Transnistria, South Ossetia, and Abkhazia. After the diplomatic disputes and the pipeline politics, the secessionist movements and Russian military incursions, Maidan Square and Crimean annexation, the signing of these treaties are a significant milestone, and hopefully a turning point. Ukraine, Moldova, and Georgia are committing themselves to a path of greater economic and normative integration with the EU. The EU is committing itself to allowing market access to the EU; more generally, the EU will likely become increasingly involved the in the internal policies of these countries, although they are not member states. What is clear is that this is a significant moment, President Poroshenko of Ukraine called it the most important moment for his country since the dissolution of the Soviet Union. What is not yet clear is how relations with Russia will evolve from this point. Here are some issues to consider...
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28 Jun

This fortnight on Opinio Juris, Kevin and Deborah discussed the OLC's legal justification of the killing of Anwar al-Awlaki, which Kevin called murder. Kevin then replied to a response by Jamie Orr on the issue of the CIA's entitlement to invoke the public authority justification. Deborah analysed what procedural protection the Fifth Amendment requires before a citizens can be targeted and discussed the key legal...

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26 Jun

Many people are surprised that Germain Katanga has dropped his appeal, particularly given Judge Van den Wyngaert's savage dissent. I'm not surprised in the least, because it locks in his sentence, which the OTP planned to appeal. Katanga's 12-year sentence is even shorter than Lubanga's, and he has already spent seven years in pre-trial detention. In fact, he'll be eligible for...

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25 Jun

I will be participating in a roundtable about Syria and international justice next Monday night at the LSE. It's free and open to the public, so I hope at least a few OJ readers will come. You can also send questions to the following hashtag: #LSESyriaICC. We will try to answer at least a few of them! Here are the event details: Syria...

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25 Jun

Jamie Orr has responded to my previous post on the drone memo, in which I argue that the OLC fails to adequately defend its conclusion that the CIA is just as entitled to the public-authority justification (PAJ) as the DoD. It's a thoughtful response, and I appreciate Dean Orr taking the time to write it. But I don't find his arguments convincing. Orr begins by citing Art. 43 of the...

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25 Jun

So did we learn anything new from the redacted OLC memorandum we didn’t already know from the earlier White Paper, Administration fact sheet, official speeches, testimony, and media leaks about the nature of the Administration’s legal theory supporting lethal targeting? Yes, several things, with important implications for operations going forward. The newly released memo has some key deficits (see, e.g.,...

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24 Jun

Much to say on the redacted version of the U.S. Justice Department Office of Legal Counsel memorandum on targeted killing, released by a U.S. court yesterday. For now, let me start with U.S. constitutional law – namely, what does the Fifth Amendment require by way of procedural protection before a U.S. citizen like Awlaki may be lethally targeted? Recall the earlier released DOJ White Paper on the topic had been clear its analysis was limited to the particular circumstances the intelligence community represented Awlaki presented: the use of “lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force if al-Qa’ida – that is, an al-Qa’ida leader actively engaged in planning operations to kill Americans.” The memo’s effort to assess the due process requirements in this circumstance runs from page 38 to page 41. It begins by appropriately acknowledging that, because of Awlaki’s citizenship, the Fifth Amendment “likely” protects him even while he is abroad in such circumstances. The memo also correctly identifies Mathews v. Eldridge (a 1976 Supreme Court case assessing what process was due before the government could deprive an individual of property) as setting the test for assessing how much process is required in the targeting case as well; Mathews is the test the Hamdi Court applied in 2004 in determining that U.S. citizen Yaser Hamdi, picked up on the Afghan battlefield, was entitled to notice of the reason for his detention and an opportunity to be heard by a neutral arbiter, once the exigency surrounding his battlefield seizure had past. Here, the memo’s analysis becomes more problematic.
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23 Jun

As everyone on Twitter knows by now, the US government has released the notorious memorandum in which the OLC provides the supposed legal justification for killing Anwar al-Awlaki. I'm a bit disappointed not to get a mention in the memo; people in the know have suggested that a post I wrote in April 2010 led the OLC to substantially rewrite it. Vanity aside, though, I'm...

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23 Jun

Here he is, defending General Sisi, the new President of Egypt: This is a general, but a general who has studied in both the United States and the United Kingdom, so he is certainly someone who is familiar with the rule of law. Because everyone knows that you can't learn about the rule of law outside the West. Duh. PS. Abbott made his silly comment as a way...

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