General

Weekend Roundup: September 7-13, 2013

This week on Opinio Juris, we continued the discussion on Syria. Geoff Corn started the week by examining President Obama's options if Congress were not to enact an AUMF, a question that also occupied Peter who yearned for the good old days of unilateral presidential authority to initiated use of force. When the surprise Russian proposal to put Syria's chemical weapons under international control put the Congressional vote on hold, Kevin was not convinced that this twist had anything to do with the "credible threat" of a US unilateral strike. Chris asked to what extent the OPCW could be involved in the practical implementation of the proposal. Chris' post also pointed out how Russia has been more adept than the US at using international law rhetoric, a point he followed up on in a post comparing the international legal rhetoric in Obama's speech with that in Putin's NYTimes op-ed. The possible legal basis for action continued to fascinate us. Kevin wondered what motivated President Obama's new theory of customary international law, in which the percentage of the world's population that lives within the territory of a party to a treaty would determine whether the treaty gives rise to custom. Julian linked to a forthcoming article by Andrew Carswell on the possibility of General Assembly action based on the Uniting for Peace resolution. Following a comment by the White House Counsel that a strike would not be prohibited under international law, Julian wanted to know more about the theory on which the White House thinks a strike would be legal under international law. Make sure you catch the comment by Charlie Savage who interviewed Ms Ruemmler. Despite all these posts on Syria, we are not quite rebranding to Opinio Syriae just yet!

Guest Post: What’s in Name? – Military Commissions and Criminal Liability under a U.S. Common Law of War

[Jonathan Hafetz is an Associate Professor of Law at Seton Hall Law School. He co-authored an amicus brief in D.C. Circuit on behalf of civil rights organizations in Hamdan v United States (Hamdan II).]

On September 30, the U.S. Court of Appeals for the D.C. Circuit, sitting en banc, will hear oral argument in the case of Guantanamo detainee and alleged al Qaeda propagandist, Ali Hamza Ahmad Suliman al Bahlul.   Earlier this year, a D.C. Circuit panel invalidated al Bahlul’s conviction by a military commission for conspiracy and related charges because those offenses did not violate the international law of war when committed.  The ruling in Al Bahlul followed logically from the D.C. Circuit’s previous ruling in Hamdan v. United States (Hamdan II), reversing the defendant’s conviction and holding that jurisdiction under the Military Commissions Act of 2006 (2006 MCA) is limited to violations of international law for conduct that pre-dates the statute.

Al Bahlul presents the important question of whether the U.S. may try in a military commission offenses such as conspiracy and material support for terrorism (MST) that do not violate international law. The U.S. government’s argument is predicated on the assumption that the jurisdiction of military commissions extends also to violations of a separate (domestic) U.S. common law of war. The principal focus in Al Bahlul will be on statutory and constitutional issues—more specifically, whether the 2006 MCA authorizes the prosecution of pre-2006 conduct that does not violate international law and, if so, whether the statute violates the Ex Post Facto Clause, the Define and Punish Clause, and/or the civilian criminal jury trial guarantee under Article III and the Fifth and Sixth Amendments.

It is important, however, to consider some other implications of the U.S. government’s argument for commission jurisdiction based on a domestic common law of war.

Weekday News Wrap: Thursday, September 12, 2013

Vladimir Putin felt compelled to talk directly to the American people about Syria. The diplomacy at the UN and in Geneva meanwhile continues. A new UN report by the Independent International Commission of Inquiry on the Syrian Arab Republic shows that both sides in the Syrian conflict have committed war crimes. Indonesia will not go along with a plan by Australia's Prime...

Weekday News Wrap: Wednesday, September 11, 2013

President Obama has offered conditional support to the another round of diplomacy on Syria and called off Congress' vote on the authorization of military action. Meanwhile, France will put a resolution under Chapter VII on the Security Council's agenda to force Syria to clean up its chemical weapons stock under international control for destruction. The trial of Kenya's deputy President, William Ruto,...

Weekday News Wrap: Tuesday, September 10, 2013

An inadvertent suggestion by John Kerry may have provided a solution to the international stalemate on Syria, as it led to a Russian proposal to bring chemical weapons under international control for destruction. The US is open but sceptical to the proposal, as are its allies. Syria's foreign minister has welcomed the proposal, tacitly admitting in the process that the...

Weekday News Wrap: Monday, September 9, 2013

Residents in northeast Nigeria say at least 13 vigilantes and five Boko Haram members have been killed after the group launched attacks on the town of Benisheik. Syrian President Bashar al-Assad denied that he was behind a chemical weapons attack on the Syrian people, as the White House pressed ahead with the effort of persuading Congress to approve a military strike to punish...

Anyone Else Wistful for the Good Old Days, in Which Presidents Went It Alone?

You never know, President Obama might turn things around. On the other hand, things sound bad on the Hill. The Administration would have to run the table to get a yes-vote from both houses of Congress (it's uphill even in the Senate). It may not be too early to start writing the post-mortems. The key mistake Obama made was going to Congress...

TEDxHagueAcademy: September 9

For a number of years now, I've enjoyed watching TED talks  and TEDx events on a variety of subjects in the realms of science, design, and society. TED may be an acronym for Technology, Entertainment, and Design, but TED talks already go well beyond those topics and tomorrow, September 9, there will be a TEDx event on issues of international justice. TEDxHagueAcademy...