Recent Posts

Stewart Baker, former assistant secretary of Homeland Security during the Bush Administration, has this very powerful and clear explanation of how legal rules are weakening U.S. defenses against a cyber attack. Note the slam on using international law rules to regulate cyber war. (h/t Vincent Vitowsky). Across the federal government, lawyers are tying themselves in knots of legalese. Military lawyers are trying...

I just want to briefly take the opportunity to thank everyone at Opinio Juris, especially Kevin, for giving me the chance to post here over the past two weeks. It's been a huge honour to be part of OJ and a joy to read everyone's comments. Thank you!

Revisiting the Peace-Justice Debate in northern Uganda

Perhaps no nation has witnessed so impassioned a debate on the relationship between peace and international criminal justice as Uganda. Northern Uganda, a case many believed the Court could “cut its teeth” on, sparked a fierce discussion, popularly referred to as the “peace versus justice debate”. This debate not only animated domestic politics but also the international discourse grappling with the effects of pursuing international criminal justice on the establishment of peace. The debate on the relationship between peace and justice largely remains harshly dichotomous and black-and-white. Either international criminal justice fundamentally disrupts the potential for creating peace or it is an absolute necessity for it. The attempted middle-ground which calls the peace-justice dichotomy “false” rarely offers any explanation as to why it's false. Northern Uganda may be our best opportunity to move beyond the rigidity of the peace versus justice debate. This post is an attempt to explain why this is the case by making two broad arguments: first, that the effects of the ICC on narratives regarding the dynamics and causes of conflict has profound implications on attitudes towards the relationship between peace and justice; and second, that the effects of the ICC on pre-negotiation dynamics as well as on negotiations themselves are distinct and should be analyzed as such.

New York Times national security correspondent Scott Shane has an opinion piece in today’s Sunday Times predicting an “arms race” in military drones. The methodology essentially looks at the US as the leader, followed by Israel — countries that have built, deployed and used drones in both surveillance and as weapons platforms. It then looks at the list of other countries that are following fast in US footsteps to both build and deploy, as well as purchase or sell the technology — noting, correctly, that the list is a long one, starting with China. The predicament is put this way:
Eventually, the United States will face a military adversary or terrorist group armed with drones, military analysts say. But what the short-run hazard experts foresee is not an attack on the United States, which faces no enemies with significant combat drone capabilities, but the political and legal challenges posed when another country follows the American example. The Bush administration, and even more aggressively the Obama administration, embraced an extraordinary principle: that the United States can send this robotic weapon over borders to kill perceived enemies, even American citizens, who are viewed as a threat. “Is this the world we want to live in?” asks Micah Zenko, a fellow at the Council on Foreign Relations. “Because we’re creating it.”
By asserting that “we’re” creating it, this is a claim that there is an arms race among states over military drones, and that it is a consequence of the US creating the technology and deploying it — and then, beyond the technology, changing the normative legal and moral rules in the international community about using it across borders. In effect, the combination of those two, technological and normative, forces other countries in strategic competition with the US to follow suit. It sounds like it must be true. But is it? There are a number of reasons to doubt that moves by other countries are an arms race in the sense that the US “created” it or could have stopped it, or that something different would have happened had the US not pursued the technology or not used it in the ways it has against non-state terrorist actors. Here are a couple of quick reasons why I don’t find this thesis very persuasive, and what I think the real “arms race” surrounding drones will be.

So concludes Philip Bobbitt, in an email comment to Ben Wittes, responding to his post on the question raised at Lawfare, here at OJ, and at Volokh, as well as in an opinion piece this morning by the New York Times public editor, Arthur Brisbane.  Philip is criticizing the policy, as I put it earlier, of conducting "foreign policy-by-leak."  I...

Secretary of Defense Leon Panetta delivered a speech Friday at a NATO air base in Italy in which he praised NATO operations in Libya, reports the Wall Street Journal; Panetta delivered his remarks standing in front of a US surveillance drone.  I myself am relatively agnostic on the Libyan conflict as such.  However, something I should very much like to see...

The brief says this with regard to the mens rea of aiding and abetting (knowledge) in Furundzija and Vasiljevic (pp. 10-11): Further, it may be questioned whether the mens rea discussion in these opinions was necessary to their holdings. Liability in those cases likely could have been premised on co-participation in a joint criminal enterprise (such as a rogue paramilitary unit),...

I’m traveling and can’t stop to comment, but check out Charlie Savage’s New York Times story describing the secret DOJ memo, reportedly principally authored by David Barron and Marty Lederman, that provided the justification for putting Anwar Al-Awlaki on the targeting list in the first place.  Crucial reading on the targeted killing and drone debate. One thought, however. As Jack Goldsmith and...

Professors Samuel Estreicher, John McGinnis, Michael Ramsey, Mark Weisburd, Ernest Young and myself, in partnership with the National Association of Manufacturers, filed a brief amicus curiae today in Doe v. Nestle, a Ninth Circuit Alien Tort Statute case. In the wake of the Second Circuit's decision in Kiobel, but also the DC and Seventh Circuit decisions, the question of whether and...

The leaks are already starting about the U.S. government's process for determining who to target for drone strikes.  Here is the latest. (Reuters) - American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials. There is no public record of...

“The Norwegian Nobel Committee has decided that the Nobel Peace Prize for 2011 is to be divided in three equal parts between Ellen Johnson Sirleaf, Leymah Gbowee, and Tawakkul Karman for their non-violent struggle for the safety of women and for women’s rights to full participation in peace-building work. We cannot achieve democracy and lasting peace in the world...