In association with the International Commission of Jurists

General

22 Jul

[Jonathan Hafetz is Associate Professor of Law at Seton Hall Law School.  He has represented several Guantanamo detainees and has filed amicus briefs in previous legal challenges to military commissions.] On July 14, the en banc U.S. Court of Appeals for the D.C. Circuit issued its long-awaited (and deeply fractured) opinion in Al Bahlul v. United States (.pdf), addressing the scope of military commission jurisdiction over offenses—material support for terrorism, solicitation, and conspiracy—that are not crimes under international law.  In a nutshell, the D.C. Circuit vacated Bahlul’s conviction for material support and solicitation, but affirmed his conviction for conspiracy against an ex post facto challenge.  While the ruling takes material support and solicitation off the table for commission prosecutions (at least for prosecutions of current Guantanamo detainees), it does not resolve the viability of charging conspiracy as a stand-alone offense because the en banc holding is based on the application of plain error review to Bahlul’s case (due to its conclusion that Bahlul failed to preserve his ex post facto challenge below).  The decision thus leaves open the fate of conspiracy under de novo review.  By implication, it also leaves open the viability of the U.S. government’s domestic war crimes theory not only with respect to other commission cases charging conspiracy (including the ongoing prosecution of the 9/11 defendants), but also with respect to Bahlul’s other legal challenges to his conspiracy conviction, which the en banc court remanded to the original D.C. Circuit panel. This post will examine the multiple opinions in Bahlul addressing the U.S. government’s domestic war crimes theory, which posits that the Military Commissions Act of 2006 (2006 MCA) retroactively authorizes, and that the Constitution allows, the prosecution by military commission of conduct that is not a crime under the international law of war.  (For excellent summaries of the Bahlul decision, see posts at Just Security by Steve Vladeck here and by Steve and Marty Lederman here).  The theory’s viability is central to the retroactivity arguments addressed by the en banc court as well as to the additional arguments under Article I and Article III that will be considered on remand.
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21 Jul

Professor Jens David Ohlin of Cornell Law School will be guest blogging with us over the next two weeks. Many readers may know Jens from his blogging at Lieber Code and from his many articles on international criminal law, the laws of war, cyberwar, and comparative criminal law, among other topics. Jens is also the author or editor of four books,...

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21 Jul

Your weekly selection of international law and international relations headlines from around the world: Africa Suspected Islamists raided the remote northeast Nigerian town of Damboa over the weekend, shooting dead more than 40 residents and burning down houses in a familiar pattern of killing that has forced tens of thousands to flee their homes this year. South Sudanese rebels and government soldiers clashed...

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19 Jul

This week on Opinio Juris, we kicked off the second edition of our Emerging Voices symposium with a post by Zachary Clopton on the horizontal and vertical dimensions of international law in U.S. Courts, followed by Abel Knottnerus' post on rule 134quater. Julian clarified last week's post on Taiwan and argued that "lawfare" will not deter China in the South China Sea. He...

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17 Jul

On Wednesday, a Dutch Court handed down a hotly anticipated decision on the Mothers of Srebrenica case, finding the Dutch state responsible for the deaths of 300 people who were sheltering with Dutchbat in July 1995, when the safe haven at Srebrenica fell.  The English translation is available here. This ruling means the relatives of those 300 Bosniaks will be entitled...

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16 Jul

There are many dads who have played make-believe with their little girls, perhaps taking the part of kindly king to his daughter's princess.  Not many people have turned this game into an international legal incident concerning state formation.  But  at least one man has. According to the Washington Post:
Jeremiah Heaton was playing with his daughter in their Abingdon, Va., home last winter when she asked whether she could be a real princess. Heaton, a father of three who works in the mining industry, didn’t want to make any false promises to Emily, then 6, who was “big on being a princess.” But he still said yes. “As a parent you sometimes go down paths you never thought you would,” Heaton said. Within months, Heaton was journeying through the desolate southern stretches of Egypt and into an unclaimed 800-square-mile patch of arid desert. There, on June 16 — Emily’s seventh birthday — he planted a blue flag with four stars and a crown on a rocky hill. The area, a sandy expanse sitting along the Sudanese border, morphed from what locals call Bir Tawil into what Heaton and his family call the “Kingdom of North Sudan.” There, Heaton is the self-described king and Emily is his princess.
Wow. Heaton just upped the ante for all non-royal dads. The Washington Post also reports:
Heaton says his claim over Bir Tawil is legitimate. He argues that planting the flag — which his children designed — is exactly how several other countries, including what became the United States, were historically claimed. The key difference, Heaton said, is that those historical cases of imperialism were acts of war while his was an act of love. “I founded the nation in love for my daughter,” Heaton said.
That’s sweet. Really. But let’s turn to the international legal argument…
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14 Jul

Professor Yann-huei Song of the Academia Sinica here in Taipei has notified me of the recent passing of his friend and fellow Law of the Sea scholar William T. Burke of the University of Washington.  His Seattle Times obituary is here.  Professor Burke's academic publications included The Public Order of the Oceans (coauthored with Myres S. McDougal), published in 1962 and revised...

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14 Jul

Your weekly selection of international law and international relations headlines from around the world: Africa In Nigeria, Boko Haram-style violence radiates southwards. Ebola continues to spread in Sierra Leone, Liberia and Guinea, with a combined 44 new cases and 21 deaths between July 6 and 8, the World Health Organisation has said. Asia North Korea has fired artillery shells into waters near its sea border with South Korea,...

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12 Jul

This week on Opinio Juris, we hosted a symposium on Ian Henderson and Bryan Cavanagh's paper on Military Members Claiming Self-Defence during Armed Conflict. In a first post, Ian and Bryan discussed when self-defence applies during an armed conflict, while their second post dealt with collateral damage and "precautions in attack". Their third post addressed prohibited weapons, obedience to lawful commands, and a ‘duty’...

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11 Jul

[Kinga Tibori-Szabó currently works for the Legal Representative of Victims at the Special Tribunal for Lebanon. She is also a New York attorney. In 2012, she won the ASIL Lieber Prize for her book Anticipatory Action in Self-Defence.] What could be more straightforward than a unit commander’s right to defend his unit, or other specified units against hostile acts and hostile intent?...

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11 Jul

[Ian Henderson is a group captain in the Royal Australian Air Force and is currently posted as the Director Military Law Centre and Deputy-Director Asia-Pacific Centre for Military Law. Bryan Cavanagh is a squadron leader in the Royal Australian Air Force and is currently posted as a legal training officer at the Military Law Centre and Asia-Pacific Centre for Military...

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10 Jul

[Ian Henderson is a group captain in the Royal Australian Air Force and is currently posted as the Director Military Law Centre and Deputy-Director Asia-Pacific Centre for Military Law. Bryan Cavanagh is a squadron leader in the Royal Australian Air Force and is currently posted as a legal training officer at the Military Law Centre and Asia-Pacific Centre for Military Law. This note was written in their personal capacities and does not necessarily represent the views of the Australian Government or the Australian Department of Defence. This is the third in a four-part series. The first post can be found here (along with a response here) and the second post here.] This is the third in a series of four posts that address the relationship between self-defence and LOAC.  In this post we compare how LOAC and the law of self-defence deal with a number of discrete issues like use of prohibited weapons, obedience to lawful commands, and a ‘duty’ to retreat. It also provides a table which summarises the main points in the first three posts. Can you use a poisoned bullet to protect yourself in self-defence? The Law of Armed Conflict (LOAC) prohibits the use of certain weapons. Under the Rome Statute and the Australian Commonwealth Criminal Code, it is a war crime to employ poison or poisoned weapons, prohibited gases, or prohibited bullets.In contrast, the law of self-defence does not specifically address the means of response to a threat, but rather merely requires the response to be necessary, reasonable and proportional. Under the Australian Criminal Code and the Rome Statute, there is no limitation on pleading self-defence only to crimes relating to the use of force. Therefore, the use of a prohibited weapon would be consistent with self-defence analysed under the Australian Criminal Code and the Rome Statute provided that a person’s actions were a necessary, reasonable and proportionate response to the threat. In some jurisdictions, for example New Zealand, self-defence operates to exclude criminal responsibility for use of force. It is possible in these jurisdictions a combatant could not successfully plead self-defence in relation to weapons offences which are separate and distinct to offences relating to the actual use of force. We did not come to any conclusion on this issue. Nowhere to run Under LOAC, not unsurprisingly there is no requirement to retreat from an attack. The position under self-defence varies from jurisdiction to jurisdiction. We found Leverick’s categorisation of the different approaches useful:
a) An absolute retreat rule. The accused must make an attempt to retreat before using force in self-defence regardless of the circumstances. b) A strong retreat rule. The accused must make an attempt to retreat before using force in self-defence only if an opportunity to do so actually exists. c) A weak retreat rule. Retreat is not treated as an independent variable, but rather as one factor that is taken into account in deciding whether the accused’s actions were necessary or reasonable. d) No retreat rule. There is no duty on the accused to take an opportunity to retreat. The victim of an attack has the right to stand their ground and meet force with force.
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