In association with the International Commission of Jurists

General

06 Feb

Bobby Chesney has posted to SSRN an important draft paper on the law surrounding the targeting of Anwar Al-Awlaki, the Yemini-American radical Islamist cleric in hiding presumably in Yemen.  It is still in draft form (to appear in final form in the Yearbook of International Humanitarian Law), and Bobby is still revising and soliciting comments from knowledgeable folks.  Here is his comment at Lawfare; the draft paper is up on SSRN at this link. My comments on an initial read?  First, I agree with the overall structure of the analysis — the questions and the order of raising them.  One observation is that I would put less weight on sovereign consent for the jus ad bellum analysis (ie, Yemen permitting the US action).  This is in large part because in my view the bedrock international law principle for the United States is, and always has been, that although territorial integrity is foundational to legal sovereignty, a state that is either unwilling or unable to control the use of its territory by non-state actor terrorist or other armed groups acting against other sovereigns — safe havens — gives up its sovereignty and right to territorial integrity to that extent.  Whether one sees it as an exception to the territorial integrity rule, or instead that the state is failing to exercise sovereignty and so does not have it at that point over the relevant territory, it seems to me a far more important legal principle in addressing terrorist groups than sovereign consent.  The politics and diplomacy of that might be a very different matter, of course. My view of “naked” self-defense outside of armed conflict remains as it has been since the beginning of this debate over targeting, as a formal category.  However, as a factual matter regarding Al Qaeda in the Arabian Peninsula, I believe that the connections between it and AQ proper are sufficient to bring it within the AUMF; at one point I didn’t think that was the case, but I have certainly been persuaded otherwise as more facts have emerged.  In that case, the Obama administration, which has various political and domestic legal reasons for preferring the AUMF-armed conflict characterization over the naked self-defense characterization, is on firm ground.  It would in my view be on firm ground either way.  However, I remain fully committed to the view that self-defense as an independent category remains available as a legal rationale, and that it will be necessary and appropriate in future circumstances.
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05 Feb

I'm dashing off to China in a few hours, but I couldn't resist a brief post on the Second Circuit's denial of rehearing on Kiobel v. Royal Dutch.  Does anyone doubt this case is headed for the Supreme Court?  Which is not to say that I disagree with the panel majority on the merits. indeed, I have offered a full-scale...

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03 Feb

(Note:  I'm going to pull down most of this post, although alas it makes Peter's comment not relevant to anything.  Martined over at VC points out a couple of mistakes.  I think I"m going to delete anything but the reference to the news article.  Peter, apologies I've untethered your comment!) The Milwaukee Journal-Sentinel reports that the Vatican has refused service of...

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02 Feb

Perhaps not getting the coverage it might in the face of more important developments elsewhere: Pakistan continues to hold Raymond Davis, a US government official posted to Lahore, in the killing of two Pakistanis last week despite protests from the US that the official is entitled to diplomatic immunity.  Here's a report from the LA Times; here's a more detailed...

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01 Feb

Richard Falk, professor of international law at Princeton and U.N. Special Rapporteur for the situation of Human Rights in the Palestinian territories, is rejecting calls for him to resign from his U.N. position due to alleged comments he made about a 9/11 conspiracy theory. NEW YORK – Richard Falk, UN special rapporteur on the situation of human rights in Palestinian territories...

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28 Jan

OJ's friend and frequent interlocutor, Ben Wittes (of Lawfare blog, the Brookings Institution, and member of the Hoover Task Force on National Security and Law), has a new book out of Brookings Institution Press, Detention and Denial: The Case for Candor after Guantanamo. It has been out since late December, but I just got a chance to finish reading it. I’m a huge fan, which will surprise no one familiar with my thinking about Ben’s work as well as about Guantanamo policy. Detention policy fatigue has set in and positions have become sclerotic. It’s not a front burner issue for very many people, in the executive, in Congress, or even in the academy or the activist community. That is for a lot of reasons. They include that as the population of Guantanamo has been reduced as well as note taken of former detainees returning to the fight once released, the whole question of detention looks much murkier than it was back in the days when it was a marker of pro-Bush or anti-Bush. It was murky then too, as Ben’s earlier work noted back in those days, but it was seen as clear-cut. The very fact of it being in the Obama administration’s hands has stripped away some of the angelic veneer of “close Guantanamo.” But one striking thing to my mind about the somewhat sidelined debate over Guantanamo and detention policy is the extent to which it feels like the debate is less about figuring out what, realistically, to do going forward, than people inside and outside the administration looking to “position” themselves — what they said before and the policies they are responsible for now, what they said about the Bush administration and what they say about the Obama administration, and how to avoid charges of inconsistency if not hypocrisy. I understand that and certainly would be doing it myself if in a position in which anyone cared what I thought then or now. Reputation and consistency matter, partly for oneself, but also for the important reason that administrations change, and at some point there might well be a Republican administration that also has to deal with Guantanamo and detention. It is important to hold people to consistent positions if only so that policies accepted today because it is Obama do not somehow transmute into grounds for excoriation when it is the President Anderson (Republican, frmr gov. State of Vulcan) administration. The positioning is part of that, and it has an important purpose. As in so many areas of the war on terror since 9/11 — detention and Guantanamo, targeted killing and drone warfare, etc. — we stand in deep need of “institutional settlement.” Sauce for the goose is a vital part of that.  Also, I should add, I don’t mean by this that people can’t or shouldn’t change their minds: of course they should as they think correct.  It’s that if one does, one has to admit to it and, to the extent one can, explain why. But preoccupation with positioning onself in relation to one’s views in other times and settings is only one issue. Too much attention to it makes it hard to look pragmatically at forward looking institutional settlement. This is the vital role played by Ben Wittes, in his institutional work at Brookings and especially the deep databases of information on Guantanamo that his office has developed over the last couple of years, but also in his several books on the topic. The central theme of all that work is centrist and pragmatic: First, that the issues of detention are not going away, because there are people in US government hands that will not be released, nor will they be (successfully) tried. We would have more of them, but because their intelligence value is now outweighed by the problems of holding and interrogating them, we have instead chosen against detaining people any more. That is not quite the same as saying that we have a policy preference for targeted killing; the accurate statement is to say that we have a policy against detention. Second, institutional settlement looking foward has to involve Congress and the Executive, as the two political branches of government, coming together. This is a constant theme for Ben, Jack Goldsmith, Bobby Chesney, and lots of other people (including me, in a short New York Times magazine piece in 2006, “It’s Congress’s War, Too,” which says it all). One of Ben’s lessons is that the current situation looks stable, but it’s not.  It’s just a stalemate. A stalemate in which there is not enough at stake for players in the administration or Congress to spend political capital dealing with things. Things apparently sit; it is more accurate to say that they drift. Below the fold is the book description. Highly recommended.
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28 Jan

It turns out that Oklahoma's anti-international law/ sharia law amendment has started a trend.  According to this report, six states -- Alaska, Arkansas, Indiana, Nebraska, South Carolina and Wyoming- are considering similar legislation. The National Center on State Courts, a nonpartisan court research organization, reports that lawmakers in six states — Alaska, Arkansas, Indiana, Nebraska, South Carolina and Wyoming— recently have introduced legislation that would...

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28 Jan

My French is pretty rusty, but I think that is the upshot of this decision from the Conseil Constitutionnel, France's highest body for reviewing questions under the French Constitution.  As Maggie Gallagher, a leading opponent of same-sex marriage in the U.S. notes, this decision (along with a similar decision by the European Court of Human Rights) could be important in...

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27 Jan

The U.N. Security Council heard a proposal yesterday for the establishment of special courts in Somalia and Tanzania to try suspected pirates. 25 January 2011 – The United Nations special envoy on maritime piracy off the coast of Somalia today proposed the setting up of two special courts inside the country and one in Tanzania to try suspected pirates, saying the...

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27 Jan

The Chinese (Taiwan) Society of International Law is pleased to hold the International Law Association (ILA) Asia-Pacific Regional Conference from May 29 to June 1, 2011 at the Grand Formosa Regent Taipei, a Four Seasons Hotel, in Taipei, Taiwan. The theme of the conference is “Contemporary International Law Issues in the Asia Pacific: Opportunities and Challenges.” This conference will provide a...

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