Recent Posts

How to Announce ‘Opinio Juris’

Opinio juris meaning the legal concept, not the blog.  The "Fact Sheet" (linked here to Lawfare) that went out with the new executive order on Guantanamo detainees that Deborah notes below has a final section on international law principles.  The points it makes are not related expressly to Guantanamo or detainees there, but about the broader context of laws of...

New Executive Order on Guantanamo

The President's much-anticipated executive order on Guantanamo was released today. I hope to read and comment on it shortly (not to mention figure out how to post a PDF). In the meantime, the press statement is here. It reads in its entirety as follows: Statement by President Barack Obama: “From the beginning of my Administration, the United States has...

Humanitarian Intervention in Libya: Follow-up Post

A few days ago, I asked the question (here), what are the best legal arguments that would permit or preclude military intervention in Libya, by the US or some other party or parties, on humanitarian grounds (other than rescue of one’s own nationals)?  The question generated an illuminating array of responses, which I wanted to categorize and expand upon here, but starting with some observations on the law and politics of US policy on intervention, as touching on Libya and beyond.  (ps.  Also check out Jack Goldsmith's discussion of US domestic law and intervention at Lawfare.) I.  Intra-USG Politics So far as I can tell as an outsider to government, the appetite inside the administration, DOD, DOS, or anywhere else where I’ve been able to glean, for any military action on the ground is way, way, way less than zero.  Since that almost certainly mirrors US public opinion, that is not a surprise. But even limited to air action, my personal impression, fwiw, is that the appetite inside the administration to try and undertake a no-fly zone, by ourselves or in coalition, is also zero. The military is deeply opposed (and not just Gates).  I’ve informally spoken with a number of officer friends who think the US trying to do this, whether alone or with the blessing/participation of other parties — including, interestingly, even if blessed by the Security Council — is prudentially a terrible idea.    The idea of the US involved militarily in conflict in yet another Muslim country seems to them a very bad idea, resources are already stretched thin, and no fly zones lead to many unpredictable and unanticipated entanglements. Calls to create a no-fly zone have been expressed loudly by Republicans and “revived” neoconservatives; the Wall Street Journal has an editorial calling for exactly that this morning. As widely noted, it has revived a sharp debate over Bush-era neoconservative foreign policy idealism, grounded in pressing for democracy and liberty for the Middle East.  It is a position long ridiculed by conventionally realist conservatives including George Will, but more importantly also attacked by what I have sometimes called the Obama administration’s “New Liberal Realists.” (I explain these categories in more detail in a long review essay, “Goodbye to all that? A requiem for neoconservatism.”) There have been some calls for the creation of a no-fly zone by liberal American foreign policy idealists, notably former Obama administration DOS official, Anne-Marie Slaughter — now out of the administration and back at Princeton (and of course her views on this are evolving with the situation; this should not be taken as necessarily her last word). I am no expert on Libya and express no view at this point on the prudential or strategic aspect of this.  However, the most striking comment I’ve heard came from a military officer who (like numbers of officers I’ve known) has always been skeptical of the CIA using force, including Predators in targeted killing.  This officer said to me, somewhat tongue in cheek, but somewhat not:  “Where’s the CIA?  Isn’t this what we’ve got a CIA for?  Isn’t this what you think the CIA is supposed to do?  Covert or at least deniable ops? Why don’t they go support the rebels and not pull us into an overt conflict?”

Knowledge vs. Wisdom: The Sad Case of Karin Calvo-Goller

“Karin Calvo-Goller has undoubtedly invested much time and effort into this book, which – but for regrettably sloppy editing – might well serve as a first systematic introduction to the procedural issues confronting the ICC. What is still missing is a book that might help to resolve these issues.” It’s not the best book review one could hope for, but neither...

Bellinger on Avena Implementing Legislation

Almost three years have passed since the Supreme Court's decision in Medellin v. Texas. The only remaining avenue to overturn Medellin and make the ICJ's decision in Avena (holding that the US violated its obligations under the Consular Convention and ordering review of the cases) binding as domestic law -- a federal statute -- has not been passed.  Former State...

What Are the Best Legal Arguments For and Against Military Intervention in Libya?

Question to OJ readers.  Suppose that you were the chief legal advisor to the US DOS, or to the UK foreign minister, or to NATO, or some country or coalition in which there is active discussion about armed intervention on humanitarian grounds in Libya, for the express purpose of preventing attacks upon the civilian population.  What would you regard as the best...