In association with the International Commission of Jurists

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13 Nov

Starting this coming Tuesday, Opinio Juris is pleased to host a joint symposium with the Yale Law Journal on a new article by Oona Hathaway and Scott Shapiro, Outcasting: Enforcement in Domestic and International Law. Here's the abstract: This Article offers a new way to understand the enforcement of domestic and international law that we call “outcasting.” Unlike the distinctive method...

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25 Oct

Eric Posner points out the NATO intervention into Libya appeared to violate numerous norms of international law (and maybe domestic U.S law as well).  He suggests that it is further evidence that legal norms don't really matter much for international military actions. But if the Libya intervention turns out to be a political and moral victory, it also illustrates once again...

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14 Oct

There are numerous problems with Mike's response to my posts (here and here) about how the amicus brief distorts the ICTY's jurisprudence.  Before getting to them, though, it's important to acknowledge that he and I agree about one thing: decisions of the ICTY are not primary sources of international law.  That, too, is international law 101.  Even here, though, the...

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06 Oct

As readers know, a few of us on the blog have been debating whether the law of neutrality has any relevance to the United States' conflict with al-Qaeda.  I'm thus delighted to announce that three essays on that very issue are now available on SSRN as part of a mini-symposium hosted by the Texas International Law Journal.  The lead essay...

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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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28 Sep

The United States has formally referred military-commission charges against Abd al-Rahim Al-Nashiri for his alleged involvement in a number of terrorist attacks between 2000 and 2002.  Here is Bobby Chesney's helpful description of the charges: Charge 1: Using Treachery/Perfidy (10 USC 950t(17)) – the idea here is that the use of a civilian boat, civilian clothing, and so forth to...

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21 Sep

Following Talisman Energy, the Fourth Circuit has now held in Aziz v. Alcolac, another ATS case, that the mens rea of aiding and abetting under the "law of nations" is intent, not knowledge.  That's plainly wrong, as I have pointed out before, so there is no point dwelling on the new decision.  But this paragraph deserves specific mention, because it...

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17 Sep

One of the most remarkable aspects of how conservative U.S. scholars approach international law is their absolute certainty that the American position on extraordinarily difficult issues is always correct.  Consider, for example, Jack Goldsmith's articulation today of when the UN Charter permits the U.S. to use force in self-defense against non-state actors: If the president is authorized to use force against...

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12 Sep

As I noted in my previous post, the CMCR's opinion in al-Bahlul repeatedly cites the Nuremberg-era crime of criminal membership in defense of its belief that material support for terrorism and conspiracy qualify as war crimes.  I continue to believe that the best counter-arguments to that idea are (1) that criminal membership was not a war crime at Nuremberg (the...

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10 Sep

I've received a number of emails arguing that I do not take seriously enough the CMCR's analogy between conspiracy and the crime of membership in a criminal organization.  The obvious response is that: (1) criminal membership is not a war crime; (2) the elements of conspiracy and criminal membership are completely different; (3) the tribunals on which the CMCR relied...

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