In association with the International Commission of Jurists

Recent Posts

03 Oct

Ruth Wedgwood sends this announcement along: International Law Weekend 2011 — the world-famous gathering of the migrating flock of international lawyers for the fall season — begins on Thursday night, October 20, 2011, at the Association of the Bar of the City of New York, 42 West 44th Street, NYC, and continues at 9 a.m. on Friday and Saturday, October 21–22, at Fordham Law School, at 140 West 62nd Street, NYC.
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03 Oct

There appears to be some agreement that continuous combat functionaries (CCF) that belong to an armed group that is involved in an armed conflict may be targeted "anywhere, anytime". I agree with this position and even had Kevin cite p. 206 of Gary Solis' book as affirmation of that position. The question is what is the legal justification for "anytime,...

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03 Oct

Trade treaties with South Korea, Columbia, and Panama are finally advancing, with President Obama set to send the three deals to Congress for approval this week, reports the WSJ this morning. The agreements had been tied up in acrimonious domestic politics for some five years, but it appears that bipartisan desire to improve the US export picture has moved things...

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03 Oct

The Supreme Court has an incredibly thin diet for international law cases this term. No blockbuster cases, no major questions of international law, no issues addressing executive power in the foreign affairs arena. Thin, thin, thin. Thus far it appears that there are only two cases that tangentially address questions of interest to this blog, and neither are particularly...

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02 Oct

Observers have watched with keen interest as Mahmoud Abbas took the politically risky, some say courageous, move to seek UN recognition of Palestine as a state. At the very center of Abbas' polarizing decision is the International Criminal Court and the possibility of opening an investigation into alleged crimes in Palestine. To think that the ICC would be so integral a player in the challenge of peace in the Middle East would have been unimaginable just a few short years ago. Just as remarkable is the demonstrated centrality of statehood in the pursuit of global justice, something that surely keeps the dreamers of international criminal justice up at night. It really wasn't supposed to go this way. The ICC was meant to be a shining star in the liberal cosmopolitan trajectory which instructed the peoples of the world that no one could hide behind state sovereignty anymore. What mattered in global politics and ethics wasn't still supposed to be states over all else. Slowly, but surely, the post-WWII global conscience was intended to wither away the rigidity of statehood as the primary unit of international politics and replace it with “the human”. The most important association was no longer supposed to be a state or a territory or religion. These were to be secondary, displaced by a “consciousness of being a citizen of the world, whatever other affiliations we may have.” Citizenship of state was to become secondary to citizenship of a “worldwide community of human beings” who shared a universal ethical code and which represented and protected all those who counted themselves as human. We were to be universal individuals. Rights were ours as individual people but shared by all. These individual rights were to be protected but we were to care about them everywhere. It is as a result of this liberal cosmopolitan trajectory that we have a human rights regime, a doctrine of Responsibility to Protect and the International Criminal Court. It is in the name of our common, universal citizenship in “humanity” that these institutions and regimes were established. The ICC, in particular, is an acknowledgement that “cosmopolitan norms of justice accrue to individuals as moral and legal persons in a worldwide civil society,” and the creation of “protections for individuals as human beings.” “[W]hat advocates of the International Criminal Court aspire to, above all, is the creation of a universal moral and judicial community” to replace power politics. Central to the establishment of the Court was the notion that individuals – and not states – are responsible for violations of international humanitarian and human rights law, reflecting a view “that thinking of human rights violations as perpetrated by monolithic and abstract entities called states, and holding only states responsible...stood in the way of human rights enforcement”. As Kirsten Ainley writes, there is a palpable and “increasing focus on the individual, rather than the state, as the key agent in international politics,” the “result of the rise of cosmopolitan liberalism.” To return to the case of Palestine, what is remarkable is the centrality of statehood, and by extension state sovereignty, in the capacity of Palestinians to pursue international justice. Surely, to many readers this will be unsurprising – the ICC's Rome Statute, after all, was negotiated by states and nations only come under the Court's jurisdiction if they refer themselves or ratify the Statute. In other words, the Court continues to privilege statehood, at most marking a negotiation between state politics and the liberal cosmopolitan protection of human rights. However, with the case of Palestine the importance of the state-based power-politics has come only more forcefully into light.
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01 Oct

Eli Lake and John Barry at the Daily Beast sum up the Obama administration’s counterterrorism-on-offense doctrines.  Of particular interest is this paragraph stressing the largely unmentioned role of on-the-ground intelligence gathering and operations in order to make possible targeted strikes: And while the drones are the most outward signs of the covert campaigns that rage from the Horn of Africa to Pakistan, it...

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01 Oct

It appears the right-wing has settled on a shiny new historical comparison to justify the targeted killing of Anwar al-Awlaki.  Here is Jack Goldsmith in the New York Times: An attack on an enemy soldier during war is not an assassination. During World War II, the United States targeted and killed Adm. Isoroku Yamamoto, the architect of the Japanese...

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30 Sep

The following is a guest-post by David Glazier, Associate Professor of Law at Loyola Law School in Los Angeles.  Our thanks to him for providing it. As Kevin noted on Wednesday, the Department of Defense approved military commission charges against Abd Al Rahim Hussayn Muhammad Al Nashiri, alleged USS Cole bombing mastermind, clearing the way for his arraignment and subsequent trial. ...

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30 Sep

Luke Peterson passed along a tip about this interesting declaration attached to the U.S.-Rwanda Bilateral Investment Treaty: Articles 3 through 10 and other provisions that qualify or create exceptions to these Articles are self-executing. With the exception of these Articles, the Treaty is not self-executing. None of the provisions in this Treaty confers a private right of action. Articles 3...

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30 Sep

How should we think about targeting Al-Aulaqi?  Here's a quick take, trying to put the main questions in some logical order.  As the reader can see from other posts on this blog, many issues are contested, including what the proper legal questions are, so please understand that this is simply one way of looking at the issues - though I believe (without any special inside information) that it is more or less in line with the US government legal position. Who? As an international law matter, is Al-Aulaqi a lawful target? The US government sees him as taking part in hostilities, part of the operational leadership of an associated force with Al Qaeda, the AQAP.  So, yes, he can be targeted with lethal force — and targeted without warning, without an attempt to arrest or apprehend as a law enforcement matter.  (Although many in the international law academic and advocacy communities have essentially taken on the ICRC's full DPH views as expressed in its interpretive guidance, the US government has not; and although there seems to be a bit (as predicted by critics of the ICRC's issuing of the "interpretive guidance") of believing that if you repeat it often enough, you make it so, again that is not the US government's view.  State practice still matters.) Where?  Does it matter that he was in Yemen, and not an “active battlefield” in a conventional hostilities sense?The US government does not accept the idea that the armed conflict with Al Qaeda — or armed conflict generally — is confined as a legal matter to some notion of “theatres of conflict” or “active battlefields” or related terms that have been used in recent years by academics and activist groups as though these were terms with recognized legal meanings.  As I understand the US government position, it sticks by the traditional concept of “hostilities” as the legal touchstone, and that where the hostiles go, the possibility of armed conflict goes too (I try to explain this evolution of these views in this short essay).  So the fact that he was present in Yemen does not make him beyond targeting, because he is not present in some “active” battlezone such as Afghanistan. This claim — the conflict follows the participants — frequently leads to a complaint that this means the US might target him in Paris or London.  The US position is that the standard for addressing non-state actor terrorists taking safe haven somewhere depends on whether the sovereign where the terrorist is hiding is “unwilling or unable” to address the threat.  No, there won’t be Predators Over Paris; Yemen or Somalia is another matter, as President Obama has repeatedly and without cavil said in speeches over the last few years.  And indeed, as the President said in his statement yesterday on the raid - no safe havens anywhere. By whom can he be targeted?  The military or the CIA? US domestic law provides authority for the President to direct either the US military, or the CIA, or both acting together, to undertake the use of force abroad.  In this case, it appears from first reports that the operation was “directed” by the CIA — presumably on account of intelligence roles — and carried out operationally by the military.  As I have said on other occasions (and, heads-up, Robert Chesney is finishing an important new paper on this topic) I think there are important ways in which the legal authorities, oversight and reporting, and other activities associated with an intermingling of CIA and military special operations should be re-examined.  One in particular is some way of recognizing a category of “deniable” operations that are not truly covert. US citizenship?  What difference, if any, does being a US citizen make? The fact of US citizenship is the factor in this situation that has most excited the blogosphere.  Insofar as Al-Aulaqi was targeted for taking operational part in groups engaged in armed conflict with the United States, historically the fact of citizenship has been neither here nor there.  That’s the easy answer — essentially just asserting the existence of the armed conflict like any other — and as a legal basis for targeting, I think the US government is on solid ground if that’s its claim.  Al-Aulaqi has entered into operational roles with a group acting in armed conflict with the United States, and is targetable on that basis, and citizenship has historically been no bar to attack.  To reiterate what is said above: in order to reach the conclusion that he is targetable, the US government has been very careful to rely not upon “internet preacher shooting his mouth off,” but instead on distinct operational roles.
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29 Sep

Moreno-Ocampo has always had the reputation of being more politically savvy than legally savvy.  Frankly, he seems completely politically tone-deaf to me.  Witness his recent comments on the implications of a possible UN General Assembly decision to give Palestine "observer state" status: A few blocks away from the UN this week, the man at the centre of the controversy said...

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29 Sep

A few weeks ago I spoke with a senior transitional justice researcher and aspiring politician from northern Uganda about the trials (if you excuse the pun) and tribulations of achieving peace and justice in the region. He described sentiments familiar to those who have engaged in the “peace versus justice” debate:
“I don't see it as a debate. It is common sense that in situations of what we have been experiencing, strategically we should be sequencing these issues, prioritizing and looking at what is best in the short-term and what is best in the long-term. It is very legitimate in any process that we must create an enabling environment that can guarantee justice can be done...If you start asking for justice even before you create that enabling environment, it is not even a debate, it is foolery...We must sequence them.”
I subsequently challenged him on the effectiveness of his argument to which he responded that Argentina was the ideal example of a state which had successfully sequenced peace and justice. The “sequencing argument” has become a popular feature in the rigid and harshly dichotomous “peace versus justice” debate. The argument is attractive because it represents an attempt to find ground between the polarizing views that there is “no peace without justice” and “there is no justice without peace.” While the sequencing argument is closer to the latter in suggesting that justice may have to follow peace it largely acknowledges that justice is necessary in the long term. Unlike scholars of a realist bent who are sceptical of any attempt to achieve justice in conflict and post-conflict contexts, the point is not to reject accountability and reconciliation but to create an environment in which pursuing justice enforces rather than destabilizes peace. The sequencing argument is rather nuanced and intuitive. It weaves together the two major strands of thinking on peace: positive peace and negative peace. Negative peace, the cessation of large-scale, direct violence, is required before justice can be pursued. If justice is sought prior to the “silencing of the guns”, then it risks prolonging the conflict. However, once a negative peace is secured, justice should be pursued. Only by identifying and rectifying past wrongs – including human rights abuses – can a more encompassing, positive peace be achieved. In short, the sequencing argument suggests a trajectory of:
violent conflict –> negative peace –> justice and accountability –> positive peace
Proponents of the sequencing argument have, however, not thoroughly scrutinized how their theory translates into practice. On the ground, the sequencing argument presumably looks a little like this: in order to achieve a cessation of violence, parties enter inclusive peace negotiations to achieve a power-sharing agreement and peaceful transition. The parties discontinue active conflict while even the most brutal and unsavoury of leaders are guaranteed amnesties as an incentive to cease violent activity. Once stability is assured and the time for accountability is ripe, those amnesties are revoked and the leaders of the conflict are brought to account, ushering in positive peace and justice.
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