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02 Jun

[We are grateful to continue our discussion on Samantar with a comment from Prof. William Dodge of the UC Hastings College of Law. Please keep following us for more thoughts in future posts and click "Related Posts" to see earlier contributions on this question.]   Like my colleague Chimene Keitner, I wrote an amicus brief supporting respondents (co-authored with Mike Ramsey), and...

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02 Jun

[In our continuing discussion of Samantar, we are very pleased to share the thoughts of Professor Chimene Keitner, of U.C. Hastings College of Law.  More comments to come soon.] As counsel for Professors of Public International Law and Comparative Law as amici curiae in support of Respondents, I obviously agree with the Court's disposition. As Opinio Juris readers know courtesy of...

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02 Jun

Cross-posted at Balkinization I hate to interrupt the terrific insta-symposium on the Supreme Court's decision in Samantar already underway at Opinio Juris, but I did want to note the much-anticipated release of Philip Alston’s report as UN Special Rapporteur on Extra-Judicial Killings. I take it the relevant press release and report will be available here. I’m just now paging through...

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01 Jun

I'm interrupting my current teaching assignment in Rome (a tough gig I know) to flag for reader's the U.S. Supreme Court's decision today in Samantar v. Yousef (see here).  As Julian noted in an earlier post, the question before the Court in this case was whether the Foreign Sovereign Immunities Act (FSIA) immunized foreign government officials for their official acts.  For human rights...

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29 May

The Rwandan government has arrested a U.S. law professor, Peter Erlinder, who represented key opposition figures. The NYT reports: Rwandan authorities on Friday arrested an American lawyer who is representing a leading Rwandan opposition figure, the latest sign of an increasingly repressive atmosphere there. Peter Erlinder, a law professor at William Mitchell College of Law in Minnesota, is being charged with denying the Rwandan genocide...

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29 May

This is a bit of a surprise, at least its timing.  Stories I had read suggested any action would be delayed until after upcoming International Whaling Commission meetings, or even later. But here goes: Australia says it will take Japan to the International Court of Justice because of Japan's whaling activities, which Tokyo says are for scientific purposes. Australia's foreign minister, environment...

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28 May

Although I was up at six, I think Julian must get up a lot earlier than I do, as he is regularly beats me to the punch on what's in the newspapers on drones.  I will post something more once Philip Alston's report is out next Tuesday and I have had a chance to read the text.  But here are a couple of comments per Charlie Savage's exceedingly interesting NYT piece. There are two ways of seeing a call for drone strikes to be turned over to the US military, rather than the CIA.  One is fundamentally grounded in the binary that all uses of force must be either law enforcement or else armed conflict - and if so, there is no room for the CIA to be conducting these strikes.  In that case case, the call to take the CIA out of it is a way of reasserting the basic binary.  This is problematic from the US standpoint, if it is a way of reasserting this fundamental binary, since the Legal Adviser's ASIL speech specifically preserves an independent ground of self-defense that is not a matter of armed conflict.  If CIA participation is unlawful because the binary holds, then the US has simply rejected the underlying premise - indeed, said that it has never accepted it, going back clear to the 1980s and beyond. The other way to see a call to take the CIA out of the activity is on the ground that because this is an armed conflict, uses of force must be undertaken by lawful participants, and the CIA, as a civilian agency, is not a lawful participant.  Insofar as this is offered as something that is not driven by the fundamental binary above, then it is essentially a claim about the CIA not meeting the requirements lawfully to engage in hostilities - some version of the claim that the war with Al Qaeda is an armed conflict, and the CIA are not privileged combatants.  This is a technically more complicated claim in the rules of war than much of the public discussion has treated it.  Much of the public discussion seems to revolve around the idea that if you are a civilian, you are not allowed to take part in hostilities; the legal point, rather, is that there are numerous categories of civilians that have varying roles in direct participation in hostilities and the point is not to say that their participation is unlawful, it is that - if they were facing a lawful foe - they are themselves lawful targets.  Whether they wear uniforms or not is a question of whether the circumstances in which they wear uniforms, or non-standard uniforms (e.g., special forces in Afghanistan), etc., is a question of whether they fail to distinguish themselves from the non-combatants.  Insofar as they do this from Langely in some cubicle, that does not really present a problem. As to the assertion that they have made themselves lawful targets - that would be true if engaged with a foe that could lawfully target anything.  In the case of a terrorist group - Al Qaeda, the IRA, ETA, etc., the automatic assumption that military lawyers sometimes make, that jus ad bellum and jus in bello are independent, is beside the point; these groups have no reciprocal right to target anything, irrespective of whether, in a lawful conflict, something or someone would be a target.  It is not the case that by flying a drone from Langley, the CIA operator is now a lawful target - he or she would be if flying it in a conflict with, oh, North Korea, but not Al Qaeda.  Al Qaeda has no belligerency rights jus ad bellum, just as it has no combatant privilege jus in bello.  To suggest that the CIA at Langley has put itself into an "equivalent" position is not correct.  If the CIA at Langley were fighting a lawful actor, its participants would be lawful targets - although not, merely in virtue of not wearing uniforms inside Langley, "unlawful combatants." But not as regards Al Qaeda.
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28 May

From this NYT story, the upcoming report to the U.N. Human Rights Council on U.S. drone strikes seems fairly restrained.  The main pushback is to end CIA involvement in drone strikes, on the theory that CIA operatives are not privileged belligerents.  This is indeed, the strongest legal argument against drone strike, at least to me, but it seems also pretty...

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25 May

[caption id="attachment_12532" align="alignright" width="120" caption="Professor Gabriel Wilner"][/caption] Sad news from the University of Georgia: Gabriel Michael Wilner, a University law professor and executive director of International, Comparative and Graduate Legal Studies, died unexpectedly at his home Friday. A native of Beirut, Lebanon, Wilner has been with UGA since 1973 and has served in several capacities since coming to the University. He has taught...

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25 May

In the extensive and sometimes heated arguments over universal jurisdiction, Judge Baltasar Garzon, and national courts such as those of Spain, often missing is much scholarly information on the actual evolution and state of Spanish domestic law on universal jurisdiction, certainly in English and accessible to English language scholars.  Ignacio de la Rasilla del Moral, a Spanish academic (apparently currently in the US), has put up on SSRN a discussion of the evolution - rise and fall - of universal jurisdiction law in Spain, up to mid-2009 and proposed revisions to the Spanish law.  The Swan Song of Universal Jurisdiction in Spain, 9 International Criminal Law Review (2009) 777-808.  I have various disagreements with the way that the article treats international law aspects of crimes subject to universal jurisdiction, but overall it is a very helpful addition to the scholarship for English language scholars seeking to understand what it means inside domestic Spanish law.  The abstract is below the fold.
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