Author Archive for
Kenneth Anderson

Human Rights Watch Report on Autonomous Weapons, and Matthew Waxman and Ken Anderson’s Critique

by Kenneth Anderson

Human Rights Watch has released a new report (co-authored by the Harvard Law School Human Rights Clinic) on autonomous weapons systems that might emerge over the next several decades, titled “Losing Humanity: The Case Against Killer Robots.”  The report calls for a multilateral treaty that would preemptively ban “development, production, and use” of fully autonomous weapons by all states.  It would be hard to be more sweeping than the report’s language in calling a comprehensive ban – here is the language from the recommendations, directed to states:

Prohibit the development, production, and use of fully autonomous weapons through an international legally binding instrument.

Adopt national laws and policies to prohibit the development, production, and use of fully autonomous weapons.

Commence reviews of technologies and components that could lead to fully autonomous weapons. These reviews should take place at the very beginning of the development process and continue throughout the development and testing phases.

It happens that Matthew Waxman and I have a policy essay appearing on this topic in the December-January issue of Policy Review, “Law and Ethics for Robot Soldiers” (the link goes to a special SSRN version with footnotes).  While of course sharing the concern that any new weapons system meet the requirements of the laws of war, our conclusions run the opposite direction as Human Rights Watch’s.  Over at Lawfare, we discuss reasons why this kind of sweeping, prohibitory approach seems to us both wrong on substance and unworkable in practice.  It’s a complicated topic, and I imagine we’ll probably post some more detailed and specific critiques of the report, and discuss it at Lawfare, here at OJ, and at Volokh.

UN Proposes to Use Surveillance Drones in DR Congo-Rwanda Conflict

by Kenneth Anderson

Pushback against weaponized drones and targeted killing, at least as undertaken by the United States, is increasing now that President Obama has been reelected, and presumably anti-drone campaigners are looking for ways to bring pressure on his administration’s policies before they are set in strategic, operational, and logistical cement – as likely they would be after eight years under a Democratic administration. This NGO advocacy campaign has intense support among UN special rapporteurs – for counterterrorism and human rights, for example, and extrajudicial execution – as well as some, and perhaps considerable support among the US’s European allies.  I’ve been meeting informally with various European government officials and diplomats who are trying to get a sense of the intersection of US government legal, policy, and strategic view. These European officials strike me as both circumspect and unhappy with the policy and legal rationales offered by the administration in its various speeches.

The situation is complicated by the fact that the UN and our European allies – indeed, everyone with a defense budget to speak of – are acquiring drones (or at least seeking access to them, in the case of the UN), both surveillance drones and, at least in some cases, weaponized drones.  According to AFP, the UN is seeking surveillance drones to monitor the DR Congo-Rwanda conflict – the UN hopes that the United States or France, or perhaps other countries, will make them available:

UN officials stress that there could be no speedy deployment of drones in DR Congo as MONUSCO would need equipment and training. But it would be a major first in UN peacekeeping operations. A previous plan to get drones into DR Congo was dropped because of the cost, But the price of the technology has come down with so many countries now using unmanned planes for battlefield reconnaissance and espionage. “The UN has approached a number of countries, including the United States and France, about providing drones which could clearly play a valuable role monitoring the frontier,” a UN diplomat said, on condition of anonymity.” Clearly there will be political considerations though,” the diplomat added. The UN plan is only to have surveillance drones, but the spying capability of the unmanned aerial vehicles worries a lot of countries.

France might be willing to do so, but it also has to consider other possible missions – such as a possible deployment of drones to support ECOWAS military action to oust Islamist insurgents who have seized territory in Mali.  But of course, these are all surveillance missions – not weaponized drones. Perhaps drone use by the UN or France or other NATO allies will remain purely as surveillance – but perhaps not.  In the hands of UN forces in DR Congo, maybe the drones will be surveillance UAVs only.  But France has not ruled out weaponized drones in Mali, so far as I know, if some intervention takes place, and I would be surprised (really surprised) if it did rule them out.  And there are good reasons to believe that if there were serious fighting by ground forces in Mali, the states supplying the troops fighting on the ground would demand that NATO countries supplying air assets use them in weaponized form to protect their ground troops.  (Greg McNeal also comments at his Forbes column.)  (more…)

US and Mexico Pact on Colorado River Water

by Kenneth Anderson

Happy Thanksgiving, the best of the American holidays … I’m taking a quick break from cooking to note this Washington Post story on water rights.  Water rights are a fairly obscure topic to most lawyers, unless one is in a place like the southwestern United States or northwestern Mexico, in which case water rights are a kind of underlying regulatory structure of many other things, such as patterns of agriculture, urban and suburban development, etc.

I sometimes forget how important these issues become when rivers cross national borders, and where actions, such as dams or other diversions, by the upstream country can have enormous effects on the downstream country.  A senior Egyptian official once told me in passing (years ago) that if there were ever a Sudan that decided to divert significant parts of the Nile, Egypt would regard it as a casus belli if negotiations did not fix it – I asked on what legal theory, and he shrugged.  Water rights tend to structure things at the infrastructure and development level – oftentimes large numbers of people’s expectations for the long term are set around long run expectations about water supply, so that disruptions across borders might not occasion merely a marginal change of degree in behavior, but trigger institutional crises.  People’s livelihood are often at stake, but sometimes, not just livelihoods but a way of life for a region.

So I was interested to see that the United States and Mexico, which unsurprisingly have had serious disagreements over water rights in the past, have signed a new five year pact of amendments to the 1940s era Colorado River pact.  The amendments essentially bring Mexico into an arrangement created by US states sharing Colorado River water, to address times of drought.  The essence of the pact, as with the inter-US-state agreement, is to allow a party to “bank” water during wetter periods in reservoirs upstream, and then draw on that water in times of drought.

Whether this will work as planned, or whether it will address the generally drier conditions of the region or greater total demands for water in the region, I don’t know.  I did a quick check of Mexican press online, and there seemed to be a cautious endorsement, but I’d be interested to know how those more familiar with Mexico’s internal policy think of it; I’m definitely no expert on water rights, let alone cross-border water rights between Mexico and the US.  But I thought it was an interesting instance of international agreements over water rights.  Here is how the WaPo (AP) story describes it:

The far-reaching agreement gives Mexico badly needed water storage capacity in Lake Mead, which stretches across Nevada and Arizona. Mexico will forfeit some of its share of the river during shortages, bringing itself in line with western U.S. states that already have agreed how much they will surrender when waters recede. Mexico also will capture some surpluses when waters rise. Also under the plan, water agencies in California, Arizona and Nevada will buy water from Mexico, which will use some of the money to upgrade its canals and other infrastructure.

The agreement, coming in the final days of the administration of Mexican President Felipe Calderon, is a major amendment to a 1944 treaty considered sacred by many south of the border. The treaty grants Mexico 1.5 million acre-feet of river water each year — enough to supply about 3 million homes — making it the lifeblood of Tijuana and other cities in northwest Mexico. The pact represents a major departure from years of hard feelings in Mexico about how the U.S. manages the 1,450-mile river, which runs from the Rocky Mountains to Mexico. In 2001, U.S. states established rules on how to divide surpluses but set aside nothing for Mexico. Several years later, the U.S. government lined a border canal in California with concrete to prevent water from seeping through the dirt into Mexican farms.

“We have chosen collaboration over conflict, we have chosen cooperation and consensus over discord,” said U.S. Interior Secretary Ken Salazar, who called the new pact the most important international accord on the Colorado River since the 1944 treaty. Mexico will begin to surrender some of its Colorado River allotment when Lake Mead drops to 1,075 feet above sea level and begin to reap surpluses when it rises to 1,145 feet. Mexico will be allowed to store up to 250,000 acre-feet of water in the reservoir and draw on nearly all of those reserves whenever needed. The agreement expires in five years and is being billed as a trial run, potentially making it more palatable in Mexico.

Bayonets and the Law of Edged Weapons

by Kenneth Anderson

With zero desire to enter into debates about bayonets and all that politically, purely as an aside I thought OJ readers would be the sorts of people who would take an interest in … the law of edged weapons.  There is law on the subject; I used to run across it particularly in older operational law military manuals (as I recall it is mentioned (somewhere) in the ancient US military manual, FM 27-10, which I don’t have to hand).  For that matter, were the US to decide to introduce a new bayonet or other edged weapon, US regulations would require that it go through a formal weapons review for compliance with the law of armed conflict. Rooting through my home bookshelf (sitting out Hurricane Sandy), I find a paragraph devoted to the law of edged weapons in the excellent new textbook by Corn, Hansen, Jackson, Jenks, Jensen, and Schoettler, The Law of Armed Conflict: An Operational Approach.  Here’s a quick excerpt:

Military bayonets and knives have often been forged with a serrated edge, to assist the soldier in cutting barbed wire or small trees.  As long as the serrated edge is not designed to aggravate a wound, like the “barbed lance” prohibited by U.S. Army doctrine, the creation of a tool that is also used as a weapon is not a per se LOAC violation.  Bayonets designed for the purpose of creating a vacuum wound … are probably unlawful because they make treating the wounded combatant more difficult.

The Washington Post’s Three Article Series on “The Permanent War”

by Kenneth Anderson

The Washington Post has featured three major front-page stories on what they call “The Permanent War” – meaning the war on terror or however one might like to label it, as the US moves from Obama 1 to either an Obama 2 or a Romney administration – and administrations after that.  The first, by reporter Greg Miller, is headlined “U.S. Set to Keep Kill Lists for Years: ‘Disposition Matrix’ Secretly Crafted: Blueprint Would Guide Hunt for Terrorists” (October 23, 2012); Robert Chesney comments on it over at Lawfare.  The second article is a feature profile by Karen de Young of White House counterterrorism advisor John Brennan, “A CIA Veteran Transforms US Counterterrorism Policy” (October 24); Bobby and Jack Goldsmith each comment on it at Lawfare. The last in the series appeared on October 25, by Craig Whitlock, “Secret Ops Grow at U.S. Base: At Forefront of Drone Wars: $1.4 billion upgrade at Djibouti post planned.” These are excellent, well-reported stories, and well worth reading to get a sense of the longer run trajectory of what might be called US “counterterrorism-on-offense.”

The larger issue raised by these three stories taken together is “institutional settlement” in counterterrorism policy.  The stories together are titled “The Permanent War,” and they address war-making aspects of counterterrorism – the drone wars and targeted killing, forward bases for drones in increasingly far-flung places, and, though with much less discussion, military and intelligence advisors to local governments dealing with various non-state actor groups that have both domestic and transnational aspects.  (The three WaPo stories mostly don’t deal with other large aspects of counterterrorism, such as domestic counterterrorism issues, or with detention or trial.) (more…)

New Article on Reid v. Covert, and My Question re Extraterritoriality and the Constitution

by Kenneth Anderson

Over at Lawfare, I’ve flagged a fine new article in the Military Law Review, “The Case of the Murdering Wives: Reid v. Covert and the Complicated Question of Civilians and Courts-Martial,” by Captain Brittany Warren (Vol. 212. 2012, p. 133; link goes to The article goes into fascinating detail about the actual facts and circumstances of Reid v. Covert, as well as a discussion of historical practices dating back to 17th century Britain and the application of the Articles of War to “camp followers.”  It then comes back to the present to discuss the circumstances of civilians in courts-martial in US law.

Let me add a comment that goes far afield of Captain Warren’s article, but one raised in my mind by the detailed discussion she offers of the “murdering wives case” in its own context and time.  (I don’t want to suggest that my discussion reflects her views in that article, so I’ve decided to make it a separate post here at OJ.)   Reid v. Covert is a case sometimes raised in a different context – one for which it is not really dead-on, however, though sometimes referenced in relation to it.  Reid is the question of the extraterritorial application of the US Constitution, and whether a civilian US citizen lawfully present on a US military base in time of peace, with a SOFA in operation (ie, 1950s Germany), is entitled to a regular US civilian trial with all Constitutional protections in a capital murder case rather than trial in military court under the UCMJ – answer, yes. But, if that’s Reid, what about a US citizen who has fled the US to places not controlled in law or fact by the US, and is engaged in violent operations against the US from abroad as part of a terrorist group – is that US citizen nonetheless entitled to trial in a regular civilian court, or at least some form of judicial due process, and at least an implication that this US citizen can’t be lethally targeted in the way that a non-citizen lawful target could be? (more…)

Aryeh Neier Calls for Syria No-Fly Zone

by Kenneth Anderson

Aryeh Neier, recently retired president of the Open Society Institute (and former head of Human Rights Watch and the ACLU), has an opinion piece in Project Ricochet this week calling for a no-fly zone over Syria. He calls for it to be imposed by a regional force and NATO.  The US would not lead the effort, though presumably it would participate via NATO – while providing backup, both material and political, another exercise in deliberately “leading from behind.”  He is cautious about the US intervening militarily directly, and frames the dilemma this way:

There are many good reasons not to intervene militarily. For one thing, it would be impossible to do so under the auspices of the United Nations, owing to Russian and Chinese obstructionism in the Security Council. There is also America’s understandable reluctance to become involved in yet another war in an Islamic country, as well as the impossibility of knowing what kind of regime might emerge if and when Assad is overthrown.  Yet it also seems impossible to stand by while the daily bloodbath continues. The situation in Syria feels more and more like what we witnessed in Bosnia 20 years ago. Then, as now, the international community’s main response for an extended period was to provide humanitarian assistance to the conflict’s growing number of victims.

Interestingly, Neier argues that an important reason to establish a no-fly zone now against the regime and in favor of its victims (but also collaterally in favor of the rebels) is that

Assad’s loyalists, especially members of the minority Alawite sect, must fear that they would be massacred if his regime fell.  At some point, the international community may have to intervene to prevent or mitigate such a massacre. Its credibility in doing so, and therefore its likelihood of success, would be far greater if it were to intervene now to establish a no-fly zone to protect civilians in the opposition neighborhoods of Syria’s cities.


ATS Kiobel Post-Argument Discussion

by Kenneth Anderson

I realize this should have gone to our announcements section, but it seems well worth flagging.  As OJ readers are probably aware, the Kiobel case is being re-argued today in the Supreme Court.  Tomorrow my law school, Washington College of Law, American University, in DC, is holding a post-argument discussion with some stellar folks – Paul Hoffman (lead counsel for plaintiffs), Katie Redford (Earthrights International), John Bellinger (former DOS Legal Adviser and Arnold & Porter partner), and Andrew Grossman (Heritage Foundation).  WCL’s own Steve Vladeck will moderate.  The event will also be live-streamed.

Tuesday, October 2, 12-1:20, lunch included, and CLE credit available.  Registration required.  The flyer with online registration information is below the fold. (more…)

Gary Bass Reviews John Witt’s ‘Lincoln’s Code’ in the NYT Sunday Book Review

by Kenneth Anderson

John Witt’s magisterial new book, Lincoln’s Code: The Laws of War in American History, appeared a few weeks ago, and Gary Bass has an enthusiastic review of it in yesterday’s New York Times Sunday Book Review.  I am only about half-way through it, but Bass’ enthusiasm is entirely justified – it is a fabulous book and one that I think merits attention world-wide.  Bass’ review-essay is also well worth the read:

Abraham Lincoln’s administration published a new fighting code for Union soldiers in 1863, which diffused far beyond American shores: to the Prussian Army in 1870, into the landmark Hague Convention in 1899, and even into the Geneva Conventions and the Nuremberg trials after World War II. Witt, a professor at Yale Law School, writes that it was Francis ­Lieber, the Lincoln team’s foremost wartime legal authority, who — trying to figure out how Union troops should treat Southern irregulars — came up with some of the defining features of soldiers that guided the Third Geneva Convention in 1949: wearing distinctive insignia identifying them as combatants; operating under a command structure; and following the laws of war.

“Lincoln’s Code” is both a celebratory chronicle of American lawmaking and a gruesome record of American wartime cruelty, from William Tecumseh Sherman’s rampage through Georgia and South Carolina to the Indian wars. In an effort to make sense of what animates the “world’s only military superpower” today, Witt looks backward: “From the Revolution forward, the United States’ long history of leadership in creating the laws of war stands cheek by jowl with a destructive style of warfare.”

Witt argues that Americans have been torn between “two powerful but competing ideals”: humanitarianism, which seeks to make war less awful through gentler rules; and justice, which demands victory in a righteous cause. Americans, he writes, have seen military law not just as an obstacle to effective fighting, but also “a tool for vindicating the destiny of the nation.”

Witt himself is a pragmatic type. While he admires much about the laws of armed conflict, he does so largely on the modest grounds that they can serve “as tools of practical moral judgment in moments of extreme pressure.” He is impatient both with skeptics who dismiss international law as rank hypocrisy, and with more aspirational legalists whose ideals are “so remote” from actual war-fighting that they make it “less likely . . . the laws of war will find traction in times of crisis.” He paraphrases Oliver Wendell Holmes Jr.: “The life of the laws of war has not been logic. It has been experience.”

Text of President Obama’s UN Speech

by Kenneth Anderson

The “prepared for delivery” text of President Obama’s remarks at the UN today is available at the National Journal (released to press last night, it doesn’t seem to have been posted yet to  Full text below the fold.


Leading Issues at UN General Assembly Opening This Week

by Kenneth Anderson

With UN meetings underway, here are a couple of links discussing leading issues on the table.  Everyone agrees that Syria leads the list, but pretty much everyone also agrees that it leads the list of things unlikely to be resolved or pushed materially to a resolution.  Neal MacFarquhar, the NYT UN correspondent, puts it this way in today’s Times, quoting SG Ban:

“The deteriorating situation in Syria will be the foremost on our minds,” Ban Ki-moon, the United Nations secretary general, said at a news conference last week outlining the priorities of the main session and some 50 side meetings. “It is really troubling that this situation is continuing without any immediate end to this crisis.”  Attention is one thing, however, and progress something else entirely.

Despite at least three high-level meetings on Syria, and countless other talks, not to mention day after day of speeches from presidents, kings and other potentates, no broad new initiatives are expected. “Everybody will think of Syria, everybody will speak of Syria, especially in the speeches to the General Assembly, but I don’t see anything substantial on Syria coming out of the meetings,” said one veteran Western diplomat, speaking anonymously under his ministry’s rules.

UNDispatch has an article on the “5 Stories to Watch” during the UN meetings [link doesn’t seem to work, but I will try and get it fixed later].  They are:

  • Syria
  • Crisis in the Sahel
  • US Election
  • Iran, Israel, and Nuclear Drama
  • Sustainable Development Goals

A journalist covering the meetings for a Japanese newspaper called to ask me if I thought that what MacFarquhar calls President Obama’s “drive by” trip to address the UN is a diss on the UN.  I told him I thought no one in the world actually took it as a diss (even if they said some dissed-sounding things to the press) but just the reality of what happens in US presidential election years.  There’s little if any upside in it for any sitting president, and really only downside, particularly if there’s anything that might be spun by the opposition in any direction.  It’s hard if not impossible for a US president not to show up, of course, but in electoral terms, there’s only downside in actually saying anything.

(I’d be curious if anyone has a different list; feel free to put yours in the comments.)

US-UN Relations Discussion at the Heritage Foundation

by Kenneth Anderson

After a blogging hiatus over the summer due to some family medical issues – all happily resolved – I am moving back to posting on a regular basis. I’ve missed posting and hanging out with the OJ community online.  I’ve been only fitfully been following posts here, or for that matter most of the global news, and I’ve decided not to try and go back and catch up or join in past discussions, but just go forward from here.  I do plan to start posting more frequently on international economic law issues, including the Eurozone crisis and such things, as well as greater attention to international organization issues, the UN, and global governance issues generally.

Meanwhile – though I would ordinarily leave this to the weekly events announcement –  I wanted to alert readers that the Heritage Foundation has been kind enough to invite me to talk about my book, released back in May, on US-UN relations – Living with the UN: American Responsibilities and International Order.  For complicated scheduling reasons, along with a desire to do this event during the annual September opening of the UN General Assembly session, the discussion will be held this upcoming Wednesday, September 26, 12 noon, at the Heritage Foundation in downtown DC.  Here’s a link to the event; open to the public; requires RSVP either online or by phone.

It is Yom Kippur that day, so I realize with apologies that some of the folks most vital to this topic will be missing, but there will be video posted at Heritage at some point soon after the event.  Good news is that the Hoover Institution, which published the book, is co-hosting, and is making complimentary copies of the book available at the event, which I’ll be happy to sign.  And finally my thanks to Heritage Foundation senior fellow Brett Schaefer, who will host and moderate the event.