In association with the International Commission of Jurists

General

03 Jun

I have been flattered to be called out on the topic of drones, targeted killing, the CIA, and related issues arising mostly from the release today of Professor Philip Alston's UN special rapporteur report (press release here).  Deborah has a useful summary and some important quotes from the press release in her earlier post.  I've read the report once, and am reading it again, but am not ready to comment.  Well, not quite.  I'm under pressure to produce some commentary for some newspaper and print journalism, while getting the grading completed before my faculty's $100 a day late fine kicks in ... sorry to punt, but I'm not quite sure I want to weigh in with a quick blog post as yet on the topic (okay, this gets a little longer than planned, but it's not really a response to the report). I will say, though, that Philip's careful discussion, set against the way in which the State Department frames the issues, is a demonstration once again of the ways in which public international law seems to be increasingly discourses passing in the night.  It's one reason I hesitate to take the issue up here - I'm not persuaded that we all speak a sufficiently shared methodological language in these highly intertwined legal-political issues to be able to do much more than set out a view and the sources that we find persuasive.  The importance of actual historical state practice of leading states, or not, on the one hand, versus the importance of such things as pronouncements of the ICJ or other tribunals or statements by UN bodies or rapporteurs or military manuals of states that don't actually fight, or not, on the other ... you see the problem. So, yes, I endorse the "independent" self-defense view as an alternative legal basis for the use of force, which is to say, I reject the view that uses of force are a binary exhausted by law enforcement and armed conflict (I've posted another round of this discussion and the CIA in the second hearing testimony that I've just posted at SSRN).  Given the existence of an armed conflict with Al Qaeda, among other parties at this point, whether any particular drone strike is an act within the armed conflict or an exercise of independent self-defense is open to interpretation, with the possibility of overlapping rationales in some cases. I endorse the State Department's view of this, as I understand it from Legal Adviser Koh's ASIL speech, and think it nothing novel - merely the reassertion of US legal views - going well back before the Obama, Bush fils, and Clinton administrations, to Reagan and Bush pere, and no doubt well before that even.  If a state cannot or will not control its territory to prevent it from being used as safe haven for terrorists or terrorist groups, then even the important international legal rule of territorial sovereignty can be overcome by an affirmative defense of self-defense; that use of force might be in the form of armed conflict, but it might be something that does not rise to that level of hostilities and thus constitute an act of self-defense use of force simpliciter.  That use of force is justified under jus ad bellum and is directed against the threat - the terrorists - and because it is a use of force, it must meet standards that are, as the Legal Adviser said, the principles underlying armed conflict rules, distinction and proportionality and, I would add, necessity in the first place in determining to target.  Necessity giving rise to self-defense; distinction in defining the target; proportionality in the evaluation of collateral damage.
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03 Jun

[Prof. Beth Stephens of Rutgers Law School at Camden has litigated and written widely on related issues. Additionally, she served a counsel for one of the (victorious) respondents in the Samantar case.  We are of course honored that she is able to share her views with us. Again, a reminder that "Related Posts" will send you to a collection of all...

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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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