In association with the International Commission of Jurists

General

03 Oct

Ruth Wedgwood sends this announcement along: International Law Weekend 2011 — the world-famous gathering of the migrating flock of international lawyers for the fall season — begins on Thursday night, October 20, 2011, at the Association of the Bar of the City of New York, 42 West 44th Street, NYC, and continues at 9 a.m. on Friday and Saturday, October 21–22, at Fordham Law School, at 140 West 62nd Street, NYC.
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03 Oct

There appears to be some agreement that continuous combat functionaries (CCF) that belong to an armed group that is involved in an armed conflict may be targeted "anywhere, anytime". I agree with this position and even had Kevin cite p. 206 of Gary Solis' book as affirmation of that position. The question is what is the legal justification for "anytime,...

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03 Oct

The Supreme Court has an incredibly thin diet for international law cases this term. No blockbuster cases, no major questions of international law, no issues addressing executive power in the foreign affairs arena. Thin, thin, thin. Thus far it appears that there are only two cases that tangentially address questions of interest to this blog, and neither are particularly...

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01 Oct

Eli Lake and John Barry at the Daily Beast sum up the Obama administration’s counterterrorism-on-offense doctrines.  Of particular interest is this paragraph stressing the largely unmentioned role of on-the-ground intelligence gathering and operations in order to make possible targeted strikes: And while the drones are the most outward signs of the covert campaigns that rage from the Horn of Africa to Pakistan, it...

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30 Sep

How should we think about targeting Al-Aulaqi?  Here's a quick take, trying to put the main questions in some logical order.  As the reader can see from other posts on this blog, many issues are contested, including what the proper legal questions are, so please understand that this is simply one way of looking at the issues - though I believe (without any special inside information) that it is more or less in line with the US government legal position. Who? As an international law matter, is Al-Aulaqi a lawful target? The US government sees him as taking part in hostilities, part of the operational leadership of an associated force with Al Qaeda, the AQAP.  So, yes, he can be targeted with lethal force — and targeted without warning, without an attempt to arrest or apprehend as a law enforcement matter.  (Although many in the international law academic and advocacy communities have essentially taken on the ICRC's full DPH views as expressed in its interpretive guidance, the US government has not; and although there seems to be a bit (as predicted by critics of the ICRC's issuing of the "interpretive guidance") of believing that if you repeat it often enough, you make it so, again that is not the US government's view.  State practice still matters.) Where?  Does it matter that he was in Yemen, and not an “active battlefield” in a conventional hostilities sense?The US government does not accept the idea that the armed conflict with Al Qaeda — or armed conflict generally — is confined as a legal matter to some notion of “theatres of conflict” or “active battlefields” or related terms that have been used in recent years by academics and activist groups as though these were terms with recognized legal meanings.  As I understand the US government position, it sticks by the traditional concept of “hostilities” as the legal touchstone, and that where the hostiles go, the possibility of armed conflict goes too (I try to explain this evolution of these views in this short essay).  So the fact that he was present in Yemen does not make him beyond targeting, because he is not present in some “active” battlezone such as Afghanistan. This claim — the conflict follows the participants — frequently leads to a complaint that this means the US might target him in Paris or London.  The US position is that the standard for addressing non-state actor terrorists taking safe haven somewhere depends on whether the sovereign where the terrorist is hiding is “unwilling or unable” to address the threat.  No, there won’t be Predators Over Paris; Yemen or Somalia is another matter, as President Obama has repeatedly and without cavil said in speeches over the last few years.  And indeed, as the President said in his statement yesterday on the raid - no safe havens anywhere. By whom can he be targeted?  The military or the CIA? US domestic law provides authority for the President to direct either the US military, or the CIA, or both acting together, to undertake the use of force abroad.  In this case, it appears from first reports that the operation was “directed” by the CIA — presumably on account of intelligence roles — and carried out operationally by the military.  As I have said on other occasions (and, heads-up, Robert Chesney is finishing an important new paper on this topic) I think there are important ways in which the legal authorities, oversight and reporting, and other activities associated with an intermingling of CIA and military special operations should be re-examined.  One in particular is some way of recognizing a category of “deniable” operations that are not truly covert. US citizenship?  What difference, if any, does being a US citizen make? The fact of US citizenship is the factor in this situation that has most excited the blogosphere.  Insofar as Al-Aulaqi was targeted for taking operational part in groups engaged in armed conflict with the United States, historically the fact of citizenship has been neither here nor there.  That’s the easy answer — essentially just asserting the existence of the armed conflict like any other — and as a legal basis for targeting, I think the US government is on solid ground if that’s its claim.  Al-Aulaqi has entered into operational roles with a group acting in armed conflict with the United States, and is targetable on that basis, and citizenship has historically been no bar to attack.  To reiterate what is said above: in order to reach the conclusion that he is targetable, the US government has been very careful to rely not upon “internet preacher shooting his mouth off,” but instead on distinct operational roles.
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27 Sep

Former IMF Chief Dominique Strauss-Kahn has asserted immunity under international law from the lawsuit filed by Nafissatou Diallo, the maid who is accusing him of sexually attacking her.  “Mr. Strauss-Kahn enjoyed absolute immunity under customary international law not only while he was head of the IMF, but also for the period of time after he had resigned from his post and...

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25 Sep

I think the Washington Post gets the right position on the utility and effectiveness of drones in targeted killing — including their limits.  The editorial principally addresses two different things, both raised in John Brennan’s summary statement of the administration’s counterterrorism policy at Harvard Law School a week ago.  The first is the question of whether there is a “legal geography of war,” as I have put it; the administration’s short answer, as is mine and the Post’s, is “no.”  The second is the question of whether drones, just as a strategic matter for the US (meaning, looking solely to US interests, rather than a universal moral or welfare-maximizing policy for everyone, all sides and all civilians), have knock-on bad effects that should put a damper on them. A few days ago I criticized the eminent columnist David Ignatius and his view that the US is “addicted” to drones.  His view is that the “blowback” effects of drone use can easily, and apparently already do, outweigh their utility to the United States, used to the extent we do today and propose to expand into the future — and that is so, he says, even though he concedes that they are indeed more precise and sparing of collateral damage.  I criticized that quite sharply — mostly because he then stops short, without telling us what the alternative is, except to launch fewer or no attacks.  After all, he doesn’t seem to want to urge that we launch attacks with less precise weaponry.  I guess I’d sum up Ignatius’ view — I think this is fair and a characterization he'd agree with, not snark — that he regards drones as tactically precise, strategically incontinent. (Update:  Chris got an excellent discussion of this going on his FB page; one of the comments is posted in the comments below, and I'm going to cut and paste the rest into the comments in the next day, in case anyone wants to follow that discussion or join in.  Thanks to Mark Shulman and Dan Goldfisher for taking time to respond, and I'll move their comments from FB here in the next day.)
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25 Sep

I am delighted to announce that Mark Kersten will be guest-blogging at Opinio Juris for the next two weeks.  Mark is the founder of the superb blog Justice in Conflict, which I've recommended before.  Here is his bio: Mark Kersten is a PhD student in International Relations at the London School of Economics and author of the blog Justice in Conflict....

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