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26 Oct

Interest in targeted killing and drone warfare is not letting up in intensity to judge by the pace of events on the topic. Right on top of my debate with Mary Ellen O'Connell on this at Washington University two weeks ago, Mary Ellen and Ben Wittes undertook another one, this past Saturday at International Law Weekend in New York.  It was considerably more testy than the Washington University debate.  Some in the audience were unhappy with the confrontational nature of the exchange; some thought it refreshingly direct; my view is the latter and congratulations to Vincent Vitkowsky for an excellent job of moderating the debate.  I'm sure it will generate a lot of interest and a lot of pushback in several directions.  Ben has posted up video of the event at Lawfare. Ben has also added a second post with some transcription, specifically on the question of whether, if one takes Mary Ellen's statements at what they say, Barack Obama is not therefore a "serial killer" for having directly ordered the CIA to carry out what Mary Ellen characterizes as "crimes" and Harold Koh at the least an aider and abetter.  Ben has in mind, for example, statements in Mary Ellen's widely noticed article, "Unlawful Killing with Combat Drones," which among other things declares that "members of the CIA are not lawful combatants and their participation in killing—even in an armed conflict—is a crime."  One might argue Ben's choice of provocative words in the debate - serial killing - or one might argue various technical points over whether it is murder or not murder, whether or not there can be the proper intent given the presumed opinions of many lawyers advising inside the government (many of those questions came up, of course, in the detention-interrogation-rendition arguments as well).  His fundamental point is to say, as far as I understand it (and if I do, I agree), if you declare that CIA participation is a crime, then it follows that somewhere there is a perpetrator.  Not to go after him or her is to permit impunity; it is not a matter of saying, well, you are committing crimes, but all we want to do is persuade you to change your policies going forward to bring you into compliance with international law.  Crime is a charge of more than mere non-compliance.  If there is a crime, someone must be responsible for doing it, whether you call it murder, criminal extrajudicial execution, what have you. And whether one calls these crimes serial killing, murder, extrajudicial execution, etc., they are still a large number of killings. It's not the kind of crime that just happens to be a tort or civil infraction criminalized, but for which as a regulatory matter one can simply agree not to do it any more, like various of the lesser environmental "crimes" for which corporations routinely pay criminal fines in the domestic United States.  Killing is not like that, presumably, at least not when it's systematic, systemic, large-scale, and under direct orders. The article by Mary Ellen specifically says who commits a crime - members of the CIA.  Yet they are not acting as rogues in this, but rather under direct orders of the President.  If it is correct to call the acts a crime, then it is correct to identify the criminals, and those criminals will have to include those who ordered them to do the crimes.  So what is it to be?  I think it a salutary reminder that one ought to be careful in cranking up the machinery of international criminal law over contested interpretations of international law. One risks either over-invoking it or trivializing it or both.  I take it that was Ben's larger point in seeking to force the question onto the table by insisting on using an ordinary, non-legal term like serial killing.
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23 Oct

Although everyone is justly excited about International Law Weekend, I wanted to mention another conference in New York that took place yesterday at Brooklyn Law School, Governing Civil Society: NGO Accountability, Legitimacy and Influence.  Congratulations to Professors Claire R. Kelly and Dana Brakman Reiser at BLS for putting it together.  I was on one of the panels at this one day session and there were many other terrific people who represented a quite fascinating and too-rare mingling of the international law and nonprofit law worlds.  As someone who cuts across both, I thought this was a great conference. The issue that drove it was to ask (this is my summary) whether there is a way to bring together two basic questions about non-governmental organizations and nonprofit organizations in the international world, the transnational world, the global space: accountability in the sense of large political legitimacy, and accountability in the sense that is usually meant in non-profit and charitable organization law.  So one panel addressed the interactions of NGOs and international organizations; a second addressed models of governance and regulation of NGOs; and the last panel asked whether and how legitimacy and accountability might be linked. One of the takeaways for me was that the question of the legitimacy and governance function of international NGOs, global civil society, is still a salient question.  I have long criticized (very sharply) the suggestion that international NGOs ought to have a legitimacy function within the international system, which is to say, a role in governance, even if you think, as I do not, that liberal international global governance is a good idea.  But I had mostly stopped writing on this theme, except when specifically invited (here and here, for example), because I had thought that the idea had died away.  That was something I thought I had learned from Anne-Marie Slaughter's impressive A New World Order; she specifically rejects the global civil society-international organization partnership in governance as failing basic tests of legitimacy (I discuss this in a long review of the book).  Instead, focus seemed to have shifted to the also important question of NGO accountability with respect to the performance of their own missions - internal governance of international NGOs, their relationships with governments in their operational work, and questions that implicate accountability and governance about them as institutions, not global governance. More recently, however, I have realized that something that I thought had faded away as a model project in global governance is still around, somewhat incorporated into some of theories of global constitutionalism that have been a staple of European academic writing on global governance for many years.  But definitely active once again as a proposed theory of global governance and legitimacy.  So I guess I am back writing about it again.  I am no more in favor of it than I ever was, I'm afraid.  Of the academic international law writers in this area, the one who seems to me the most important is Steve Charnovitz of GW, who presented a very interesting paper at this conference.  Steve always offers a careful and measured view, and this paper was exactly that, but also exceedingly interesting not just in the critique of critics like me, but in offering a step forward in a positive account of NGOs in governance.  Indeed, in some respects it was quietly the most audacious of the papers at the seminar, because Steve set out the form of an argument for asking how anyone could propose to leave the NGOs out.  I will very much look forward to reading the essay when published in the symposium issue.
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22 Oct

On Thursday night I had the privilege of participating in a live webinar on targeted killing and Al-Aulaqi held by the Harvard Program on Humanitarian Policy and Conflict Research.  The other participants included Yale's Andrew March, Emory's Laurie Blank, and Seton Hall's Jonathan Hafetz.  It was a wonderful, wide-ranging discussion, one that focused not only on the international-law aspects of...

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22 Oct

[Anne-Marie Slaughter is the Director, Secretary’s Policy Planning Office, U.S. Department of State; Former Dean and (on leave) Professor, Princeton University, Woodrow Wilson School for Public and International Affairs. Catherine Powell is Staff Member, Secretary’s Policy Planning Office, U.S. Department of State; (on leave) Professor, Fordham Law School; Former Clinical Professor and Founding Director, Human Rights Institute, Columbia Law School.] With...

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22 Oct

Yesterday a federal district court granted Chevron's motion under Section 1782 to discover communications and interactions that Steven Donziger and others affiliated with the Lago Agrio plaintiffs had with Ecuadorian courts, the Ecuadorian Special Master, and the Ecuadorian government. The order was in furtherance of Chevron's efforts to respond to a criminal investigation brought in Ecuador against two Chevron...

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20 Oct

Peggy has already posted on this, so this is just a reminder that ILW 2010 starts today (October 21) in New York City. The website of the American Branch of the International Law Association has this description: On October 21-23, 2010, the American Branch of the International Law Association and the International Law Students Association will present the annual International Law...

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20 Oct

I was introduced to the U.S. Digests on International Law as a graduate student working on my first international law research paper (an exposition of nineteenth century international law arguments over the British Guiana/Venezuela boundary dispute, which, I might add, is still around).  I found John Bassett Moore's 8-volume digest from 1906 magisterial in its compilation of key primary resources such as diplomatic notes,...

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20 Oct

Richard Hasen writes in Slate: There are of course good reasons to limit foreign money in the electoral process—it's just that none of them are compatible with the Supreme Court's First Amendment absolutism. Unlike American citizens, foreign individuals, governments, and associations are unlikely to have allegiance to the United States. A foreign entity may even have military...

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19 Oct

No surprise that that the U.S.-Korea Free Trade Agreement is languishing short of congressional approval in an election year.  But who knew that members of Congress now feel free to team up with foreign legislators jointly to lobby their executive counterparts.  From Foreign Policy's The Cable: On Monday, 21 U.S. lawmakers joined with 35 South Korea lawmakers to write to both...

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19 Oct

As a publisher I am used to staying behind the scenes and cajoling my authors into writing for us, so it is with trepidation that I take up this kind invitation from the OJ team – but as the quote from Bull Durham goes “the world is made for people who aren’t cursed with self-awareness”. When I was invited to guest...

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