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03 Apr

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...

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01 Apr

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...

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31 Mar

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...

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31 Mar

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...

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30 Mar

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...

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29 Mar

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...

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28 Mar

Toward the end of the section on drone warfare in Legal Adviser Koh’s March 25, 2010 speech to ASIL is a discussion that runs to US domestic law and regulation.  For the first time in a very long time — it might be since Koh’s predecessor Abe Sofaer addressed the question in a 1989 speech — the meaning of “assassination” in US law and regulation has been addressed in an authoritative and considered way by a senior US government lawyer.  Legal Adviser Koh said with respect to “assassination”:
[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.
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28 Mar

The long-awaited ICJ judgment on Kosovo is due out this November, according to this report.  That would be pretty fast work, given the hearings were only held last December and probably involved the participation of more countries (35) filing memorials than any case in ICJ history. Still, the judgment was actually expected even earlier. Moreover, the report from Serbia suggests...

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25 Mar

Update:  I have had a chance to watch the video twice — I strongly recommend watching it, as it adds considerable language to the statements in the ASIL press release.  Given how much I have pressed publicly for a statement by the administration’s lawyers, I want to say this much even while I’m still doing a careful lawyerly parsing of...

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24 Mar

(Note:  I hear Rumors, Unverified Gossip, and Speculation that Legal Adviser Koh will give a formal statement of views on targeted killing and drone warfare at his keynote address at ASIL this week.  I would certainly welcome such a statement, of course - I hope that it would be sufficiently broad so as to encompass what the President is actually...

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