The American Society of International Law recently awarded its annual certificates and prizes for scholarship in international law. A number of the winners have either been involved in OJ symposia or are friends of the blog, so I want to acknowledge their achievements here: Certificate of Merit in a specialized area of international law: Mark Osiel, "The End of Reciprocity: Terror,...
Walter Russell Mead has an illuminating post on the liberal internationalist tendencies of the Obama Administration. Putting aside whether or not liberal internationalism is, as Mead puts it, "a strategic mistake that leads a lot of people inside the administration and well beyond it to make consistently bad decisions about American foreign policy.", I find his post fascinating for its classification of different approaches...
"An ancient gold tablet, discovered during archaeological excavations in 1913 in the Ottoman Empire, disappeared from a Berlin museum in the immediate aftermath of World War II and reappeared almost sixty years later in the safe deposit box of a Holocaust survivor." So begins In re Flamenbaum, a case that reads like a Hollywood movie script. As reported here, "the...
It's not exactly a hot topic, even among international lawyers, yet the ongoing dispute over the Western Sahara (and Morocco's claim to it) has drawn the attention of 54 U.S. Senators, who recently sent a letter to U.S. Secretary of State Clinton about it favoring support for Morocco's 2007 proposal for autonomy in the disputed region. This analysis claims the...
I don't know if I buy this article's suggestion that the various Catholic Church priest-pedophile scandals amount to a "crime against humanity" under international law, but I do think the Pope's right to "head of state" immunity under international law is a tough question. In the U.S., the Pope has been granted head of state immunity (thanks to President Bush...
Not a funny April Fool's Day joke, although it sort of sounds like one. Any of our readers in Coffs Harbour, NSW, please check out your window and give the Australian Federal Police a hand. THE Australian Federal Police are continuing to frantically search for an Australian accused of war crimes, after a five-year legal battle ended with the High Court...
There is an old adage that a conservative is a liberal who has been mugged. The rejoinder is that a liberal is a conservative who has been indicted. Speaking of which, an intriguing development in the case of the Christian terrorists: All members of the anti-government Hutaree group, who wanted to start a violent revolution against the government...
This is just the first round of a potentially huge investor-state arbitration claim filed by Chevron against Ecuador. $700 million now, but up to $27 billion later. (For some background, see here and here about a federal court's refusal to stay one of the arbitration proceedings.). Chevron Corp (CVX.N) won a three-year-old arbitration fight against Ecuador over a commercial dispute as...
Forgive the self-promotion, but I was just sent the cover of my co-edited book (with Markus Dubber, who teaches at Toronto), and I think it's really cool. The Handbook, which will be published in November by Stanford University Press, is the first edited book on comparative substantive criminal law. It contains seventeen chapters -- 16 chapters on the...
I thought ASIL and the program organizers did a wonderful job with this year's Annual Meeting. I particularly appreciated the opportunity to chair a panel, War and Law in Cyberspace. In addition to a discussion of the technological capacities of cyberattacks and how they map onto the jus ad bellum and the jus in bello, we had a good discussion of what...
[S]ome have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”To refresh on the background to this. Apart from questions of international law, the US has had a domestic ban on “assassination” in the form of an executive order that has been in place (or renewed in slightly different language) since the presidency of Gerald Ford. In 1976, in the wake of revelations of CIA activities in the Church Committee hearings, President Ford issued EO 11905, the single relevant sentence of which read: “No employee of the United States Government shall engage in, or conspire to engage in, political assassination.” President Carter reissued the order in 1978 in slightly different language in EO 12036, which read in relevant part: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” President Reagan reissued the order in 1981 using identical language in EO 12333: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” EO 12333 was amended by subsequent EO’s, but the specific assassination ban text remains unchanged. That said, the term “assassination” is never defined. Whole forests have fallen as commentators, in law reviews and elsewhere, have debated its meaning over decades, however. Does it refer to political leaders? To whom does it apply or not apply? Non-state actors? Terrorist groups? Political leaders of states with which the United States is at war? Military-political leaders of such states (given how frequently that is the case)? There is little material in the record as to what was intended — and perhaps not surprisingly. What little anecdotal information exists from the EO’s issuance in the 1970s suggests that it was intended as a way of placating Congress, and avoiding an actual statutory ban. The EO was apparently intended to be vague and undefined, and subsequent presidents — and, note, Congresses — have found that to be a useful ambiguity in which to leave it. It has the status of a binding executive order in domestic law — and amendable, alterable, and revocable should the President want to do it. I’ve never understood, to be frank, the scholarly agonizing around a single sentence with a wholly undefined term in an order not, and never, codified as a statute. It defies interpretive settlement, I would have thought, precisely because it was not designed to bear any real legal weight. It was instead merely a declaration in vague and general terms that whatever wicked killings the CIA did that were revealed in the Church hearings, those would not happen any more, a mea culpa and promise not to do some ill-defined bad things any more. Well and good — the CIA did some bad and wicked things — but beyond that, one is not really going to get by textual interpretation. Unsurprisingly, much of the commentary uses the interpretive discussion as a way of launching a normative view of when and what should be acceptable in the way of targeted killing.
