In association with the International Commission of Jurists

General

28 Jun

On Friday, Ukraine, Moldova, and Georgia signed the Association Agreements with the European Union that have been at the center of so much controversy among Russia, the EU, and these states. Preventing Ukraine, Moldova and Georgia from signing these agreements had become an important foreign policy goal for Moscow (see, for example: 1, 2, 3) after significant pressure, and perhaps some incentives, from Moscow, former Ukrainian President Yanukovich’s decided at the last minute not to sign the agreement at the EU’s summit in Vilnius in November precipitated the demonstrations that began in Kiev. Those were followed by Yanukovich fleeing, Russia’s intervention in and annexation of Crimea, and the ongoing tensions over the future of Ukraine. Moldova and Georgia have also faced threats of economic and/or energy embargoes as well as the ongoing Russia-backed separatist issues in Transnistria, South Ossetia, and Abkhazia. After the diplomatic disputes and the pipeline politics, the secessionist movements and Russian military incursions, Maidan Square and Crimean annexation, the signing of these treaties are a significant milestone, and hopefully a turning point. Ukraine, Moldova, and Georgia are committing themselves to a path of greater economic and normative integration with the EU. The EU is committing itself to allowing market access to the EU; more generally, the EU will likely become increasingly involved the in the internal policies of these countries, although they are not member states. What is clear is that this is a significant moment, President Poroshenko of Ukraine called it the most important moment for his country since the dissolution of the Soviet Union. What is not yet clear is how relations with Russia will evolve from this point. Here are some issues to consider...
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28 Jun

This fortnight on Opinio Juris, Kevin and Deborah discussed the OLC's legal justification of the killing of Anwar al-Awlaki, which Kevin called murder. Kevin then replied to a response by Jamie Orr on the issue of the CIA's entitlement to invoke the public authority justification. Deborah analysed what procedural protection the Fifth Amendment requires before a citizens can be targeted and discussed the key legal...

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25 Jun

So did we learn anything new from the redacted OLC memorandum we didn’t already know from the earlier White Paper, Administration fact sheet, official speeches, testimony, and media leaks about the nature of the Administration’s legal theory supporting lethal targeting? Yes, several things, with important implications for operations going forward. The newly released memo has some key deficits (see, e.g.,...

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24 Jun

Much to say on the redacted version of the U.S. Justice Department Office of Legal Counsel memorandum on targeted killing, released by a U.S. court yesterday. For now, let me start with U.S. constitutional law – namely, what does the Fifth Amendment require by way of procedural protection before a U.S. citizen like Awlaki may be lethally targeted? Recall the earlier released DOJ White Paper on the topic had been clear its analysis was limited to the particular circumstances the intelligence community represented Awlaki presented: the use of “lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force if al-Qa’ida – that is, an al-Qa’ida leader actively engaged in planning operations to kill Americans.” The memo’s effort to assess the due process requirements in this circumstance runs from page 38 to page 41. It begins by appropriately acknowledging that, because of Awlaki’s citizenship, the Fifth Amendment “likely” protects him even while he is abroad in such circumstances. The memo also correctly identifies Mathews v. Eldridge (a 1976 Supreme Court case assessing what process was due before the government could deprive an individual of property) as setting the test for assessing how much process is required in the targeting case as well; Mathews is the test the Hamdi Court applied in 2004 in determining that U.S. citizen Yaser Hamdi, picked up on the Afghan battlefield, was entitled to notice of the reason for his detention and an opportunity to be heard by a neutral arbiter, once the exigency surrounding his battlefield seizure had past. Here, the memo’s analysis becomes more problematic.
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18 Jun

My blogospheric colleagues have begun debating whether the Administration has sufficient domestic legal authority to proceed with what the Times has called a “targeted, highly selective campaign of airstrikes against Sunni militants in Iraq” – reportedly now under contemplation. Jack Goldsmith, for example, thinks it might, under the 2002 statute authorizing the President to use military force against the government of Iraq for the purpose of ridding it of its “weapons of mass destruction.” My friends at Just Security and elsewhere have usefully debunked this notion, and related others (like the idea I’ve argued against here, that ISIS can be considered any kind of “associate” of Al Qaeda). But while I’d contest the idea that the discussion so far is “premature” – it is no doubt precisely a topic with which Administration lawyers are currently struggling – the doubtful legality of such a set of strikes under domestic law is made even worse by the likely illegality of such strikes under international law. That is, even if the United States could come up with a domestic statutory basis for some military action in Iraq – extant Title 50 covert action authorities are quite broad, for example – it would still struggle for the approval of our allies on international legal grounds. Here’s my thinking.
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16 Jun

Your weekly selection of international law and international relations headlines from around the world: Africa Three armed groups from northern Mali have agreed to begin peace talks with the government aimed at resolving long-standing disputes in the country.  More than 50,000 children in South Sudan face death from disease and hunger, the United Nations has warned while seeking over $1bn to support those...

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16 Jun

Not surprisingly, drone strikes that kill American citizens have received the most attention in the press. So it's important to emphasize that the US kills citizens of its allies, as well, such as the two Australians recently vaporized in Yemen: TWO Australian citizens have been killed in a US airstrike in Yemen in what is the first known example of Australian...

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14 Jun

This week on Opinio Juris, Kevin had a chuckle at Libya's newest excuse why it missed the deadline for filing submissions to the ICC. He also called your attention to the work of Breaking the Silence, an Israeli NGO collecting testimonials from IDF on the treatment of Palestinians in the Occupied Territories. Deborah discussed ongoing confusion between al Qaeda and ISIS, and the...

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12 Jun

[caption id="attachment_30807" align="alignnone" width="130"] photo: NYU Law School[/caption] I am sad to mark the passing of one of the giants of international law, and one of my teachers, Professor Andreas Lowenfeld of NYU Law School. His career was exemplary; Andy operated at the highest levels of practice and academia. In an era when so many scholars and practitioners become hyper-focused on...

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11 Jun

Since I’ve given the New York Times grief in the past about using the name “Al Qaeda” to refer to non-Al Qaeda radical Islamist groups, I wanted to give them due credit for yesterday’s piece describing the takeover of Mosul by the Islamic State of Iraq and Syria (ISIS) as having been accomplished by Sunni militants. The Times piece...

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11 Jun

With all the talk of the End of Treaties and Treaty Survival, it's worth noting that the wheels of multilateral treaty-making have not come to a complete stop.  Earlier today, the ILO adopted a Protocol to ILO Convention No. 29, the 1930 Forced Labour Convention.  On paper, the 1930 Convention was a success -- it currently has 177 parties.  But it's...

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