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13 Mar

Ken noted last week that Lawfare has been hosting an ongoing debate over Ryan Goodman's fascinating new article "The Power to Kill or Capture Enemy Combatants," which is forthcoming in the European Journal of International Law. I contributed a long post criticizing Goodman's claim that Art. 35(2) of the First Additional Protocol -- which provides that "[i]t is prohibited to employ...

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13 Mar

Like many young, lefty international lawyers, one of my intellectual heroes is Philippe Sands. He is a remarkable scholar and an equally gifted advocate, and he puts both to good use no matter how unpopular the position or client -- as his representation of the Libyan government in its challenge to the admissibility of the case against Saif Gaddafi demonstrates. Above...

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12 Mar

OJ's own Duncan Hollis has been awarded the American Society of International Law's "Certificate of Merit for High Technical Craftsmanship and Utility to Practicing Lawyers and Scholars" for his edited volume The Oxford Guide to Treaties. (Other honorees this year are Jeremy Waldron and Petros C. Mavroidis.) From the citation: The Oxford Guide to Treaties brings clarity to a topic of central...

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12 Mar

The ICC has dropped the charges against Francis Muthaura, Uhuru Kenyatta's co-accused, because of issues with procuring evidence and witness testimony. Twelve more bodies have been fished out of the river near Aleppo in Syria, bringing the total body count to well over 80, many with bullet wounds to the head. An African Union-brokered deal has re-opened the oil trade between Sudan and South...

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11 Mar

Lex Specialis was a topic of much discussion during the ILC debates on the Responsibility of International Organizations.  The central issue was this:  how broad is the provision, and does it give IOs carte blanche to derogate from or contract around the residual rules of responsibility?   I've just posted an article on SSRN here that gives my take.  Here is the...

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11 Mar

North Korea reacted with another threat of a nuclear attack after the US and South Korea performed joint military exercises. Residents of the Falklands Islands started voting on Sunday on a sovereignty referendum that has already been rejected by Argentina. Reuters has a piece on the Khmer Rouge trials at the Extraordinary Chambers of the Courts of Cambodia alleging justice delayed may be...

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10 Mar

I'm grateful to Ken, Wells Bennett, and Marcy Wheeler for speculating that my April 2010 blog post on 18 USC 1119, the foreign-murder statute, is the post referred to in today's New York Times article on the behind-the-scenes machinations that culminated in the CIA using a drone to kill Anwar al-Awlaki. I imagine they are correct; the post fits the timeline...

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09 Mar

"Three years ago I could never have dreamed that we would be selling our tomatoes directly to the restaurants in Manila," said Johnny Rola. Just a few years ago the poor farmers in this mountain village in northern Philippines had little hope. They would grow a few staple crops and sell it at the local farmers market. They were...

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09 Mar

I hope soon to get more directly to the important news of the prosecution of former Al Qaeda spokesman Sulaiman Abu Ghaith in U.S. federal court in New York and much else of interest in our pages, but I didn’t want to let pass without comment the also important piece in the Washington Post this week that the Obama Administration is examining whether it should seek to extend the legal authorization for targeted killing operations beyond those groups currently identified by the 2001 Authorization for Use of Military Force (AUMF). Per The Post: “The debate has been driven by the emergence of groups in North Africa and the Middle East that may embrace aspects of al-Qaeda’s agenda but have no meaningful ties to its crumbling leadership base in Pakistan. Among them are the al-Nusra Front in Syria and Ansar al-Sharia, which was linked to the September attack on a U.S. diplomatic post in Benghazi, Libya. As the article rightly explains, these are “militant groups with little or no connection to the organization responsible for the attacks on Sept. 11, 2001.” The AUMF has been the cornerstone of U.S. domestic authority to detain and target members of the Taliban, Al Qaeda and “associated forces,” but it is limited by its terms, by Administration interpretation, and by the courts to uses of force against these groups. As the U.S. prepares to leave Afghanistan and as the Al Qaeda that attacked the United States on 9/11 collapses, the AUMF is of decreasing import. More, as Steve Coll recently wrote, distinguishing the AUMF’s target groups from various violent Jihadi successor groups in Yemen, Mali and elsewhere: “A franchise is a business that typically operates under strict rules laid down by a parent corporation; to apply that label to Al Qaeda’s derivative groups today is false.” So if the AUMF doesn’t authorize the use of force against the next generation of terrorist organization, what should we do?
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09 Mar

This week on Opinio Juris, Kevin argued why the OPCD's small victory over the return of documents seized by Libya may be important in the longer run because of its consequences for Libya's admissibility challenge. He also quoted from Libya's latest submission on the admissibility challenge to argue why it should lose the challenge. Shifting his focus to the US, Kevin asked...

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09 Mar

[Moria Paz is a Fellow in International Law at Stanford Law School.] This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. First of all, let me express my thanks to Efrat Arbel for her careful and thoughtful reading, as well as for her comments, for which I am grateful. Arbel and I largely agree on the descriptive analysis of case law in this area, which forms the bulk of the paper, although we may have partially divergent perspectives on the implications. In my comment, I very briefly recap the descriptive component and then discuss the normative elements of the study. In the paper, I used case law to demonstrate a significant disconnect between official rhetoric in human rights law and much narrower judicial practice in cases bearing on language. Formal pronouncements of the regime as well as prominent human rights scholars celebrate linguistic heterogeneity and seek to harness the international legal regime to protect, indeed even to create, linguistic and cultural diversity. When cases bearing on language reach major human rights courts and quasi-judicial institutions, and especially the United Nations Human Rights Council (UNHRC) and the European Court of Human Rights (ECtHR), these enforcement institutions do not in fact demand that states accommodate substantive diversity. The UNHRC and the ECtHR are not prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Although they operate under different doctrinal structures, these two adjudicative bodies reach a similar legal outcome: they consistently allow the state to incentivize assimilation in the public sphere (on fair terms) into the dominant culture and language of the majority.
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