Critics of the U.S. war on terrorism often deride it as a bad metaphor or an excuse to conduct controversial detentions, interrogations and military trials.  But what the Pentagon refers to as the “Global War on Terrorism” (GWOT) has many of the characteristics of a typical armed conflict, even outside of the main battlefield in Afghanistan.  As the NYT reports:

The United States military since 2004 has used broad, secret authority to carry out nearly a dozen previously undisclosed attacks against Al Qaeda and other militants in Syria, Pakistan and elsewhere, according to senior American officials.

These military raids, typically carried out by Special Operations forces, were authorized by a classified order that Defense Secretary Donald H. Rumsfeld signed in the spring of 2004 with the approval of President Bush, the officials said. The secret order gave the military new authority to attack the Qaeda terrorist network anywhere in the world, and a more sweeping mandate to conduct operations in countries not at war with the United States.

In other words, there really is a global war on terrorism - it really is going on in places outside of Afghanistan - and it really is an international armed conflict.  U.S. military forces are killing enemies (and probably) dying, they are detaining people, and they are probably interrogating people.  And this war is not going to go away simply because the U.S. has elected a president whom the world seems to like.

As a matter of U.S. law, there seems little doubt that these military raids are explicitly authorized…

I’ve only met Professor Christopher Greenwood of the Department of Law of the London School of Economics once, but I have long been an admirer of his work. He is a prolific and interesting scholar, as well as a leading practitioner of public international law. Greenwood’s credentials for the ICJ are impeccable (check them out here). But he is facing flak at home due to his legal advice, given to the chief UK lawyer during the run-up to the Iraq War, that no second United Nations Security Council Resolution was needed to invade Iraq.   

Needless to say, it would be a huge mistake for the UK to pull Professor Greenwood’s nomination (or pending nomination) simply because he expressed a legal opinion that was in the minority. Indeed, the ICJ desperately needs members like Greenwood who hold legal opinions that (at least sometimes) departs from the often monolithic public international law mainstream.  It would be refreshing to have a respected, intelligent, and thoughtful dissenter on the ICJ, and Greenwood certainly has the potential to be such a dissenter in at least some important cases.

People often complain here in the U.S. about how the nature of presidential campaigns make it hard for complex and sophisticated ideas to get out (and this is a gross understatement).  And the media is often blamed.  But the candidates are often just as much as fault. Case in point, Senator Obama’s silence on what he thinks of the deadly U.S. raid last week into Syria from Iraq in pursuit, apparently, of Al-Qaeda members.  McCain has issued a statement basically approving the action.  But Obama, who famously argued in favor of similar strikes into Pakistan, has refused to issue a statement one way or the other (at least as far as I know, if I am mistaken someone please let me know). 

As I understand it, Obama’s position is that since the U.S. has not actually acknowledged the raid, he should not comment on it. I think this is a useful dodge, but not convincing. He is not the President yet, and he is surely within his rights to express views about the zillions of confirmed news reports about the raid, and the anti-US protests in Syria, the Syrian government’s angry response, and Iran’s angry response.  Yes, yes, he’s got an election to win. And I know it is politically advantageous to say nothing.  But wouldn’t you like to know whether he thinks such raids are legal, appropriate, and/or necessary? That is the big question, and it would be nice if someone asked him, or if he would give us some hint of where he is going on this.

“Chucky” Taylor, son of former Liberian President (and current war crimes defendant) Charles Taylor, was convicted yesterday in Florida federal court of committing torture when he was with his father in Liberia.

What makes Taylor’s conviction news (although only news overseas, apparently, since it didn’t make any of the leading U.S. newspapers) is that it is the first conviction under the 1994 Extraterritorial Torture Statute, 18 U.S.C. 2340 and 2340A, which was enacted to implement U.S. obligations under the Convention Against Torture (for an interesting profile of Chucky in Rolling Stone, see here).  This statute has a very broad scope and is one of those few U.S. criminal statutes that appears to embrace a theory of universal jurisdiction.  Typically, U.S. criminal statutes confine themselves to prescriptive jurisdiction based on territory, effects, nationality, etc.  But 18 USC 2340(A)(b) makes clear that this statute applies to acts committed in a foreign country whether or not the defendant is a U.S. national or whether or not the victim is a U.S. national.

It’s a little late in the Bush administration to be creating new foreign policy doctrines, but the NYT suggests that U.S. Defense Secretary Robert Gates did just that in his speech yesterday at the Carnegie Endowment.  According to the NYT, this is the key sentence is the most expansive articulation yet of the nuclear deterrence policy:

Today we also make clear that the United States will hold any state, terrorist group or other nonstate actor or individual fully accountable for supporting or enabling terrorist efforts to obtain or use weapons of mass destruction — whether by facilitating, financing or providing expertise or safe haven for such efforts,

I don’t really see anything radical here, but then again I haven’t been parsing this stuff as carefully as some folks.  I think that the NYT sees this as expanding deterrence and threats of military retaliation, not just against the states that use nukes against the US, but to any state that aids a terrorist group in obtaining nukes or WMDs

Sure, some kind of important event will happen on November 4th involving the coronation of some guy named Barack, but international economic law geeks will have their eyes focused on a different date: November 15th.  On that day, G-20 industrial leaders will gather at the National Building Museum in Washington D.C. to try to come up with a global response to the global financial crisis.   Some of the leading participants, most notably French President Nicolas Sarkozy and UK Prime Minister Gordon Brown, are calling for this summit to serve as a second “Bretton Woods,” referring to the famous 1944 conference in Bretton Woods, New Hampshire credited with laying the groundwork for the post-war economic legal order. 

Bretton Woods itself has achieved a somewhat mythical status and I think that its impact is generally overstated,

So asks Robert Dreyfuss of The Nation, in his interesting piece about the recent U.S. cross-border raids into Pakistan and Syria, with Iran looming (see this NYT article for background).  Dreyfuss is very worried about this doctrine, and suggests that its acceptance could result in the “end of international law.”  I wouldn’t go that far, but it is definitely a challenge to traditional norms of international law, although as I suggested here, the doctrine does have some pedigree in the Law of the Sea.  Supporters appear to have grafted a new element to the traditional “hot pursuit” doctrine: the idea that raiding a “failed”  or at least “failing” state that cannot maintain its sovereignty is more justifiable.  President Obama (yes, I’m trying to jinx him) may have a particular interest in this doctrine since raiding Pakistan was something he first raised a couple of years ago.

The oft-discussed relationship of the United States and International Law will be the theme of this year’s International Law Weekend of the American Branch of the International Law Association.  The conference will be held October 16-18, 2008, at the Association of the Bar of the City of New York, 42 West 44th Street, New York City. 
The kick-off panel will focus (of course) on the U.S. Presidency.   A New Presidency: A New U.S. Policy at the U.N.? will include Republican and Democratic strategists and academic commentators. Additionally, the keynote speaker at the annual luncheon on Friday, October 17, at 12:30 p.m. will be John Bellinger, the Legal Adviser to the U.S. Department of State. That Friday evening, the Annual Gala Reception will be hosted by the Permanent Representative of Belgium to the United Nations. The ILW 2008 Program will also feature over thirty other panels, addressing topics relating to international trade and investment, international adjudication and arbitration, human rights, international law in U.S. courts, generation of international law, transitional justice and international criminal law, and the international environment. To view the complete ILW schedule and to register for the conference, please visit http://www.ilsa.org/conference/ILW.php or www.ambranch.org.

Almost buried amid the last-minute flurry of litigation over Medellin’s pending execution tonight at 7 p.m. EDT, Texas has made a potentially important but ambiguous concession to the ICJ.  It has agreed to support federal habeas petitions in the future for Mexican citizens arguing that a failure of consular notification had caused prejudice to their criminal conviction and death sentence.  Here is the somewhat curious but very interesting statement by Texas, made at the very end of a brief which aggressively resisted any attempt by the U.S. Supreme Court to block Medellin’s execution.

Like our readers, I am enjoying the terrific and sophisticated discussion on Ben Wittes’ important and highly persuasive book (My short reaction: He’s pretty much right about most things). I hate to interrupt this flow with non-Wittes stuff, but I couldn’t resist a brief note on the growing non-U.S.-related  backlash against the ICC.

I don’t know how seriously to take Prof. Francis Boyle, who is literally dying to file an application in the ICJ on behalf of Iran against Israel and the U.S.   Still, this interview in the Iran English language news site suggests something might happen soon. And Iran might get a sympathetic hearing at the ICJ.  And it would raise interesting legal issues, even if it had no practical effect on the Israeli Air Force.

The somewhat surprising answer from U.S. Attorney General Michael Mukasey is “Yes!”, or at least an acknowledgement that  ”the Nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans–soldiers and civilians alike.”  This is one takeaway from an address he made today at the American Enterprise Institute. In essence, this is the official Executive Branch response to this summer’s blockbuster (and my view dangerously wrongheaded) Boumediene opinion by the U.S. Supreme Court.  There is a lot more to the address as described by the WPost here, but for international lawyers, it is interesting that the U.S. A-G thinks it is important to clarify the existence of an armed conflict with Al-Qaida.  As a political move, this is an interesting move, since it would force members of Congress to go on record about whether or not this is really a “war” and it will no doubt eliminate a lot of political posturing.  On the other hand, acknowledging the existence of an armed conflict seems a bit redundant for U.S. law purposes under the September 11 Resolution, and it is unlikely to persuade international lawyers much either way.  So we’ll see if this goes anywhere.  Here are the key excerpts from the address:

It looks like Duncan’s analysis  of the potential problem in the Betancourt hostage rescure was on target. Bloomberg reports:

A Colombia soldier wore a Red Cross emblem during the rescue of 15 hostages earlier this month, President Alvaro Uribe said.

Uribe, who apologized for the use of the symbol, said the move wasn’t sanctioned by the government and the soldier did it because he feared for his life.