I’ve made the trek this week to New Delhi to attend the 4th Biennial Meeting of the Asian Society of International Law.  I’ll be presenting a paper on my favorite subject these days: The China-Philippines (Non) Arbitration. I’ve tweeted a few not very profounds thoughts on Day One here. AsianSil is quite a different type of meeting than the American Society of International Law meetings I am used to.  It’s a bit more formal, perhaps a little more of the feel of “foreign delegates” gathering for an international conference than an academic/public policy conference.  The hosts are very generous with their time and well-organized.

More substantively, I’ve found the different interests and approaches of Asian scholars to be illuminating.  Many Asian nations, including China and India, see themselves as still part the developing world trying to navigate a world dominated by western industrialized nations.  This theme seems to inform many of the opening speeches, including that by India’s Vice President Hamid Asari.  I will try to write something useful or interesting on Day 2 when I get a chance (or a better wifi connection).

[James G. Stewart is an Assistant Professor at the University of British Columbia Law Faculty.  Until recently, he was on the board of the Conflict Awareness Project, but had not role in this investigation.]

Something momentus happened in Switzerland last week—national prosecutors opened a criminal investigation into one of the world’s leading gold refineries, for pillaging Congolese natural recourses. Pillage, of course, is a war crime. If the case leads to a conviction, it will represent the first ever instance of corporate responsibility for an international crime, and the only time since Nuremberg that pillage of natural resources has featured in a criminal trial. In this short blog, I complement an op-ed I published about this today by setting out the background to the case, some of the legal work that I undertook with Ken Hurwitz at the Open Society Justice Initiative prior to it, and the contemporary significance of all this, especially in the wake of the Alien Tort Statute’s demise.

Argor-Heraeus is one of the world’s largest refiners of precious metals. Between 2004 and 2005, the company is alleged to have acquired approximately three tons of pillaged gold from the Congolese rebel group the Front des Nationalistes Intégrationnistes (FNI), through intermediaries in Uganda and the Jersey Islands. As the International Criminal Court heard recently in a case against one of the FNI’s alleged leaders, the armed group was a Lendu militia based in the North-East of the Congo, neighboring Uganda. According to an excellent report by Human Rights Watch, their existence was largely dependent on the extraction and sale of pillaged gold. According to these new allegations, major western producers were buying.

The reappearance of commercial responsibility for pillaging conflict commodities is a long time in the coming… (Continue Reading)

On Tuesday, Saudia Arabia made official its rejection of a highly sought after seat on the UN Security Council in a letter to the President of the General Assembly.   The letter confirmed in writing its surprise decision of October 18 (announced less than 24 hours after its election) to forgo a prestigious seat on the Council.  The letter now enables the General Assembly to start the process of filling the seat, which will be vacant come January 2014.

Saudia Arabia’s decision to reject the seat stunned the diplomatic world, and it appeared, even its own diplomats in New York.   Saudia Arabia had been campaigning for the seat for two years, and in a press statement immediately after the election (available on its Mission’s website), the Saudi Ambassador to the UN stated:

“This membership defines the absolute commitment of Saudi Arabia towards peace in the World and security in its land. It is a defining moment in the Kingdom’s history. As one of the first founding members of the United Nations, our election is much to rejoice over. We welcome the positive shift as well as challenges of being part of the Security Council body.”

The reasons for the sudden about-face appear two fold.  First, Al Jazeera reported that “The Foreign Ministry accused the Security Council of failing to end the Syrian and Israeli-Palestinian conflicts and to convene a conference on creating a Mideast zone free of weapons of mass destruction.”   Second, Saudi Arabia referred to the need for Security Council reform, stating “the manner, the mechanisms of action and double standards” prevented the Council from performing its responsibilities.”

While it is tempting to read Saudia Arabia’s rejection of the seat as a new verse in the longstanding refrain for Security Council reform, it is hard to believe this was really the motivating factor.  First, the Kingdom’s decision appears to have been taken by the King and Foreign Ministry on the spur of the moment, and was not a calculated or longstanding strategy.  Second, with the current situation in Syria, the seat gives any country in the region a leadership role, and regardless of the Council’s structure, it is curious that a powerful and influential country like Saudia Arabia with a clear interest in the conflict would decline this opportunity.  Indeed, if reform were a top priority, it would be easier to make the case as a Council member.   Finally, earlier this week, Saudi Arabia was elected to the UN Human Rights Council, suggesting it is willing to assume obligations in other spheres, but perhaps not on sensitive matters of peace and security.

Although an elected member refusing to take up its seat is unprecedented, there have been situations in the past where a seat has been vacant for short periods.  This excellent article by Security Council Report, provides a comprehensive overview of how the Security Council has handled these situations, and what potential political and legal issues follow a vacant seat.  Interestingly, foremost among the legal issues is the possibility that decisions taken by a Security Council short a member (14 instead of 15) would be open to challenge.

Jordan appears willing and able to assume the seat, and it is expected to officially announce its interest shortly.  It is expected that only a replacement from the region will step forward, because the seat vacated by Saudia Arabia is, as SCR notes in the report above,  “an Arab seat that “swings” between the Middle East countries in the Asia-Pacific Group and the countries of North Africa every two years.”  In addition, the election of non-permanent members of the Council are elected pursuant to Article 23 of the UN Charter,  which states that equitable geographical distribution is important in allocating seats.

While Jordan has not, to my knowledge, announced an election platform to date, it would be led by a formidable international lawyer, Jordan’s Permanent Representative, His Royal Highness Prince Zeid Ra’ad Zeid Al-Hussein, (who has been considered a potential contender for for the position of Secretary General).  Prince Zeid is well respected in international law circles due to his role in the ICC and his 2005 report on Sexual Exploitation and UN Peacekeepers.  The successor to Saudia Arabia’s seat would, according to the current calendar, be required to assume the role of presidency of the Council for the month of January, a momentous undertaking that requires great preparation.   Even if Jordan emerges as the sole candidate (and it is too soon to know whether this will be the case) an election would be called by the General Assembly under the normal rules, requiring a candidate to obtain a 2/3 majority.

I am delighted to announce the publication of a new book that I co-edited with my colleague and dear friend Gerry Simpson, The Hidden Histories of War Crimes Trials. As the title indicates, the book contains a number of essays that discuss little-known trials (such as the Franco-Siamese Mixed Court)  or re-narrate better known but misunderstood trials (such as the trial of Peter von Hagenbach). Here is the table of contents:

1: Gerry Simpson: Introduction

Part 1: Pre-Histories: From Von Hagenbach to The Armenian Genocide
2: Gregory S. Gordon: The trial of Peter von Hagenbach: Reconciling history, historiography, and international criminal law
3: Benjamin Brockman-Hawe: A supranational criminal tribunal for the colonial era: the Franco-Siamese Mixed Court
4: Jennifer Balint: The Ottoman state special military tribunal for the Genocide of the Armenians: ‘Doing government business’

Part 2: European Histories I: Prosecuting Atrocity
5: Rosa Ana Alija-Fernández: Justice for no-land’s men? United States military trials against Spanish Kapos in Mauthausen and universal jurisdiction
6: Dov Jacobs: A narrative of justice and the (re)writing of history: French trials after World War II
7: Frédéric Mégret: The Bordeaux Trial: Prosecuting the Oradour-sur-Glane massacre

Part 3: European Histories II: Americans in Europe
8: Grietje Baars: Capitalism’s victor’s justice? Prosecution of industrialists post WWII
9: Stephen Vladeck: Eisentrager’s (Forgotten) Merits: Military commissions and collateral review

Part 4: European Histories III: Contemporary Trials
10: Benedetta Faedi Duramy: Making peace with the past: Federal Republic of Germany’s accountability for World War II massacres before the Italian Supreme Court
11: Tamás Hoffman: Trying communism through international criminal law? The experiences of the Hungarian historical justice trials
12: Rain Liivoja: Competing histories: Soviet war crimes in the Baltic States
13: Julia Selman-Ayetey: Universal jurisdiction: Conflict and contoversy in Norway

Part 5: African Histories
14: Jackson Maogoto: Reading the shadows of history: The bridges between Turkish and Ethiopian ‘internationalised’ domestic crime trials
15: Firew Kebede Tiba: Mass trials and modes of responsibility for international crimes: Ethiopia

Part 6: Southern Histories
16: Georgina Fitzpatrick: War crimes trials, victor’s justice, and Australian military justice in the aftermath of the second world war
17: Narrelle Morris: Justice for ‘Asian’ victims: Australian war crimes trials of the Japanese 1945-51
18: Peter Rush: Dirty War crimes: Jurisdictions of memory and international criminal law

Part 7: Histories of a Type: Excavating the Crime of Aggression
21: Roger Clark: The crime of aggression: From the trial of Takashi Sakai in August 1946 to the Kampala Review Conference in 2010
22: Mark Drumbl: ‘Germans are the lords and Poles are the servants’: The trial of Arthur Greiser in Poland, 1946
23: Immi Tallgren: The Finnish war-responsibility trial in 1945-56: Flawed justice, anxious peace?

You can purchase a hard copy of the book at the OUP website here. You can also — as part of an experimental OUP initiative — download a complete PDF of the book for free at either www.oup.com/uk or www.oapen.org. If you cannot afford the £70.00, by all means download the PDF.

UPDATE: The free open-access version of the book is now available on the webpage linked to above.

On November 6, the United States signed the Minamata Convention on Mercury and deposited an instrument of acceptance indicating its consent to be bound by the treaty on its entry into force, making it the first nation to do so.  Here’s how UNEP summarizes the Convention:

The Minamata Convention for Mercury is a global treaty to protect human health and the environment from the adverse effects of mercury. It was agreed at the fifth and final session of the Intergovernmental Negotiating Committee in Geneva, Switzerland at 7 a.m. on the morning of Saturday, 19 January 2013.

The major highlights of the Minamata Convention on Mercury include a ban on new mercury mines, the phase-out of existing ones, control measures on air emissions and the international regulation of the informal sector for artisanal and small-scale gold mining.

The treaty certainly seems to address an important environmental problem with significant momentum from State participants — although opened for signature only a month ago, it has already garnered 93 signatories (of course, everyone most people know that those signatures are not the same as consent, which is why the United States took the additional step of depositing an instrument of acceptance).  The treaty will enter into force on the deposit of the 50th instrument of ratification, accession, acceptance or approval.   

What interests me about the Mercury treaty though is not just its contents — which are the latest iteration of multilateral environmental governance — but the process for U.S. acceptance.  Here’s how the State Department describes it:

The Minamata Convention represents a global step forward to reduce exposure to mercury, a toxic chemical with significant health effects on the brain and nervous system. The United States has already taken significant steps to reduce the amount of mercury we generate and release to the environment, and can implement Convention obligations under existing legislative and regulatory authority. The Minamata Convention complements domestic measures by addressing the transnational nature of the problem.

Three questions.  First, is the Administration considering this a congressional executive agreement? If so, shouldn’t they be a bit more specific about which U.S. laws authorize U.S. participation in this treaty.  In particular, it would be interesting to know if the legislation authorizes not just the regulation of mercury but U.S. participation in an international legal regime regulating mercury (I’m guessing it doesn’t).  That’s a big distinction, especially since the Obama Administration has already gotten into quite a dust-up over how it reads statutes with respect to authorizing U.S. consent to treaties (e.g., ACTA).  And if there’s no statutory authority to join the Minamata Convention, doesn’t that mean it must be a sole executive agreement?

Second, where’s the U.S. Senate in all this? As Oona Hathaway has explained there are few, if any, ways to rationally explain why certain international agreements go to the U.S. Senate for advice and consent versus those that Congress approves via ex ante or ex post legislation (let alone those that are done under the President’s sole executive powers).  Rationality aside, however, there is a long history of the Senate exercising its prerogatives over certain subject areas when it comes to giving advice and consent to treaties.  Thus, when President Bush suggested he’d not send the Moscow Treaty on arms control with Russia to the Senate, the Senate issued a non-partisan threat request that he do so . . . and the Administration changed course and obliged the Senate by sending it there.  I’d always understood multilateral environmental agreements to warrant similar treatment.  With one notable exception — the 1976 Long Range Transboundary Air Pollution Convention and its various protocols —  I believe multilateral environmental agreements have always gone through the Senate advice and consent process . . . until now.

This raises a third and final question:  Why did the Administration decide to bypass the Senate in consenting to the Minamata Convention? Perhaps the Senate indicated to the Obama Administration that they would not object to having this treaty concluded as an executive agreement?  Or, maybe the statutory authority (would love further details on what it is) is more robust than in the ACTA context.  Alternatively, I wonder, if this isn’t the Obama Administration response to the Senate’s repeated intransigence lately to approve any of the Administration’s major treaty priorities; from the Disabilities Convention to UNCLOS, the Senate’s been pretty deadlocked of late. Maybe the idea here was to send a warning shot to demonstrate that the Administration no longer feels bound to adhere to past practice when it comes to reserving certain treaty subjects for Senate attention and/or that the Administration wants to remind the Senate that it has other ways to pursue its international agenda if the Senate continues to delay or deny consent to the treaties it receives from the White House.

I’d welcome comments, especially from any readers who know more of the back story on this Convention or the U.S. approach to consenting to it.

Your weekly selection of international law and international relations headlines from around the world:

Middle East

• The UN said it had halted work on all but one of its 20 Gaza building projects as a result of an Israeli ban on importing building materials into the Palestinian enclave.
• The UN estimates that about 9.3 million people in Syria, or about 40 percent of the population, need humanitarian assistance owing to the country’s ongoing civil conflict.
• The Nobel Peace Prize-winning OPCW, the international body tasked with ensuring Syria’s chemical weapons are eliminated, has enough money to fund its mission only until the end of this month, and needs more funds soon for the destruction of poison gas stocks next year.
• The Syrian political opposition has agreed to participate in international peace talks in Geneva, but only if certain preconditions are met, the Syrian National Coalition has said in a statement.
• Israeli negotiators have told their Palestinian counterparts that the Separation Wall that cuts through the occupied West Bank will serve as the border of a future Palestinian state.

Asia

•  A trial in Bangladesh, which brought death sentences for 152 border guards accused of murder and arson in a mutiny in 2009, failed to meet international law standards, UN human rights chief Navi Pillay said.
• Saudi Arabia, having largely abandoned hope that the United States will spearhead international efforts to topple the Assad regime, is embarking on a major new effort to train Syrian rebel forces and they’ve reportedly enlisted the help of Pakistan to do it.
• South Korea’s air force has asked for enhanced stealth capability for fighter jets set to be purchased, a government source briefed on the matter said on Monday, further bolstering the chances of Lockheed Martin winning the tender with its F-35s.

Africa

• The Democratic Republic of the Congo and defeated M23 rebels are to sign a peace deal  to end a 20-month revolt in the east of the vast African nation, where other militias still roam and millions are destitute despite great mineral wealth.
• After the success of the Congolese army and UN peacekeepers in defeating M23 rebels, the UN Security Council agreed that attention should now turn to tackling other armed groups in eastern DRC.
• Nigerian President Goodluck Jonathan asked the national assembly to extend by six months a state of emergency in three northeastern states where the military is fighting a drawn out battle with Islamist militants.
• The Mauritanian news website Sahara Medias said it had received a claim of responsibility from al Qaeda’s regional wing for the killing of two French journalists in northern Mali.

Europe

• The Netherlands has asked an international court to order Russia to release 30 people detained during a Greenpeace protest against oil drilling in the Arctic.
• Also in The Netherlands, an alliance of privacy advocates, lawyers and journalists is taking the Dutch government to court over its links to overseas intelligence agencies.
• NATO is staging its biggest military exercise in seven years in the Baltic countries and Poland but its insistence that the drills are not aimed at sharpening defenses against a resurgent Russia have not convinced Moscow.

Americas

• Medical staff tasked with monitoring the health of prisoners held by the United States in Guantanamo Bay, secret CIA prisons and in Afghanistan were complicit in abuses against them, according to an independent report.
• Colombia’s government and Marxist FARC rebels reached a “fundamental agreement” on the guerrillas’ future in politics, one of the thorniest issues addressed in peace talks in Cuba, according to a joint statement.
• Colombia is preparing a letter of protest to Russia after two Russian bomber planes twice entered Colombian airspace without authorization when flying between Venezuela and Nicaragua.
• In May, the White House leaked word that it would start shifting drone operations from the shadows of the CIA to the relative sunlight of the Defense Department in an effort to be more transparent about the controversial targeted killing program. But six months later, the so-called migration of those operations has stalled, and it is now unlikely to happen anytime soon.
• US Secretary of State John Kerry has said that world powers had moved closer towards a deal with Iran over its nuclear program, but said that the US continued to be sceptical of the country willingness to act.

Events

• The Leitner Center for International Law at Fordham University is hosting Global Rights and Local Challenges: Disability, Inclusive Education and Rural Environments, a panel discussion that will highlight the backdrops of rural poverty and educational underdevelopment as barriers to inclusion and to education for persons with disabilities. A film screening of In the Shadow of the Sun will follow the event on Friday, November 15th at Fordham Law School in New York. More information can be found here (along with a trailer for the film).
• As a reminder, the Columbia Journal of Transnational Law, Columbia Law School Human Rights Institute, the Roger Hertog Program on Law and National Security, and the Lieber Society of the American Society of International Law present: From Gettysburg to Guantanamo: 150 Years of the Lieber Code and the Law of Armed Conflict, a conference on November 21st at Columbia Law School. Drafted by Columbia Professor Francis Lieber and signed by President Lincoln in 1863 as General Order No. 100, the Lieber Code regulated the conduct of U.S. soldiers during wartime. While the Code was limited to Union forces, the rules were based on customary law of the time and strongly influenced subsequent international codification of the law of armed conflict. The Code grappled with issues involving the regulation of armed conflicts between states and non-state groups that remain pressing today. This conference celebrating its 150th anniversary will explore the origins and import of the Lieber Code in its Civil War context, its impact on the development of international humanitarian law, and its continued significance to modern challenges in armed conflict. Confirmed speakers can be found here, the conference schedule here.

Announcements

• The International Court of Justice wishes to appoint 2 Law Clerks each of whom will provide research and other legal assistance to one of the judges of the Court. For administrative purposes, the Law Clerks are attached to the Department of Legal Matters. Under the supervision of the judge to whom he or she will be specifically assigned, the Law Clerk will provide such judge with legal research and related assistance with regard to cases pending before the Court. The Law Clerk may also be required to provide legal assistance and support to a judge ad hoc participating in a particular case. In coordination with his or her judge, the Law Clerk may also from time to time be called upon to perform some specific legal tasks for the Registry. More information can be found here. Deadline for submission of applications is November 15th.
• The International Criminal Court (ICC) Moot Court Competition will take place from 19 until 23 May 2014 in The Hague, the Netherlands. The ‘City of Peace and Justice’ will welcome over 250 students from 50 universities and over 30 different countries for this large scale moot court, simulating the proceedings of the ICC. The Competition brings together students of diverse backgrounds and cultures from both Member States and Non-Member States alike, and is the perfect instrument for the development and promotion of international criminal justice. The Competition enhances knowledge about the Rome Statute, especially within countries that have yet to ratify it, and it stimulates interaction between future top legal minds originating  both from Member States and Non-Member States. Participating universities from Non-Member States this year include teams from the USA, Iran, India, Russia, Israel, China and Palestine. More information can be found here. If you have any questions, or want to become involved in the Competition, contact the organizers at grotiuscentre [at] cdh [dot] leidenuniv.nl.
• ALMA (Association for the Promotion of International Humanitarian Law has established an Upcoming IHL events page on ALMA’s website. The web page includes information about current and future events from all over the world (divided by regions).
• The American Society of International Law’s Lieber Society on the Law of Armed Conflict is calling for submissions for the Francis Lieber Prize. Both monographs and articles (including chapters in books of essays) are eligible for consideration, as the prize is awarded to the best submission in each of these two categories.
• • Criteria: Any work in the English language published during 2013 or whose publication is imminent at the time of submission may be nominated for this prize. The re-submission of works which have already been considered for this prize is not allowed.  Entries may address such topics as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance.  Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.
  • Age Limit:       Competitors must be 35 years old or younger on 31 December 2013. They need not be members of the American Society of International Law.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Should a multi-authored submission win the competition, the cash component of the prize shall be divided, pro rata, between the authors. Submissions from outside the United States are welcomed.
  • Submission:     Submissions, including a letter or message of nomination, must be received by 20 January 2014.  Three copies of books must be submitted.  The electronic submission of articles is encouraged.  Authors may submit their own work.  All submissions must include contact data (e‑mail, fax, phone, address).  The Prize Committee will acknowledge receipt of the submission by e‑mail. Printed submissions must be sent to:Professor Iain Scobbie, School of Law, Williamson Building, The University of Manchester, Oxford Road, Manchester  M13 9PL, United Kingdom. Electronic submissions must be sent to: iain [dot] scobbie [at] manchester [dot] ac.uk. Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.
  • Prize:   The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prizes consist of $500, a certificate of recognition, and a year’s membership of the American Society of International Law.  The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2014.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

This week on Opinio Juris, we brought you a healthy diet of treaties, chemical weapons, drones, and a sprinkle of terrorism.

Duncan rounded up various treaty related news items this week, and argued that US treaty practice does not have to be a zero-sum game. Peter posted about the US Senate Foreign Relations Committee’s hearings on a possible Understanding that would limit anxieties about the domestic impact of the UN Convention on the Rights of Persons with Disabilities.

The main event this week however happened across the street from the US Congress: the SCOTUS hearing in Bond v United States. Peter kicked off the conversation with the question whether Missouri v Holland has ever been used by the federal government. Julian was first out of the blocks to post his impressions of the oral argument, followed by seven observations by Marty Lederman, while Duncan was too stumped to comment on the merits due to the apparent lack of appreciation on all sides for the difference between treaty signature and ratification. Bill Dodge pointed out how the difference between a self-executing and non-self-executing treaty was also misunderstood.

Should an international treaty ban “killer robots”? Ken, in a WSJ op-ed with Matthew Waxman, argued that it should not.

From killer robots to drones: Deborah was worried about reports that the migration of targeting operations from the CIA to the Pentagon has stalled. The recent drone reports by HRW and AI were criticized by Jens Iverson who examined whether members of armed groups can be targeted and by Michael W. Lewis who argued that significant flaws undermine the reports’ objectivity and overall credibility.

Finally, Kevin mourned the premature death of the concept of terrorism, victim of overly broad definitions by Scotland Yard and the UK Terrorism Act 2000.

As every week, we listed upcoming events. You may also be interested in the Berkeley Journal of International Law’s latest issue with its symposium on Taming Globalization co-authored by John Yoo and our own Julian Ku.

Many thanks to our guest contributors and have a nice weekend!

Peggy, Julian, Duncan and I took a stab at a podcast discussion of Tuesday’s Supreme Court arguments in Bond v. United States.

You can now find an audio of the argument itself here. Mentioned in the course of the discussion are related posts by David Golove and Michael Ramsey here and here. The Nick Rosencranz Harvard Law Review article that has been a key point of attack is found here (Eric Posner’s brutal critique here). The excellent symposium volume on Missouri v. Holland put together by Peggy McGuinness in 2008 is found here.

We’ll hope to do this again in the future (but only if we can find some good theme music).

[Michael W. Lewis is a Professor of Law at Ohio Northern University. He is a former Navy aviator and Topgun graduate.]

Human Rights Watch and Amnesty International released reports last week criticizing the use of drones in Yemen and Pakistan.  Both reports have significant flaws in the way the factual information was presented and in how they characterize international law and US policy.

The HRW report is misleading from the outset. Entitled “Between a Drone and al Qaeda,” the report describes HRW’s investigation of six strikes in Yemen.  Yet the strike that caused the vast majority of the civilian casualties described in the report occurred 4 years ago and was not even carried out by a drone. The cruise missile strike on al-Majalah has been covered extensively in the media for years, and was the result of Tomahawk cruise missiles fired from a US warship.

The most pernicious part of injecting the civilian casualties caused by this cruise missile strike into a report critical of drones and US targeted killing policy is the fact that this very strike had a profound impact on US policy four years ago.  Daniel Klaidman’s book “Kill or Capture” details the Obama Administration’s reaction to the al-Majalah strike.  The administration elevated the level of authority required to approve such strikes to the National Command Authority (direct oversight by the cabinet/joint chiefs/president).  It also provided impetus for the shifting in weapons systems away from large weapons like cruise missiles that weigh 3,000 lbs. and carry a 1,000 lb. warhead to weapons like the Hellfire missile (the weapon most often employed by drones) that weighs only 100 lbs. and carries a 20 lb. warhead.  The implication that the al-Majalah strike represents current US targeted killing policy is simply false

HRW’s report also claims that the administration’s policy on targeted killings as outlined in President Obama’s speech at the National Defense University in May embraces a law enforcement approach to the conflict with AQAP rather an armed conflict approach. It comes to that conclusion by cherry-picking a quote from that speech stating that the US only targets individuals who pose an “imminent threat to the American people,” which closely resembles a law enforcement standard. The report neglects to include the two words preceding that quote.  President Obama actually said that the US targets terrorists that pose a “continuing and imminent threat to the American people.”  This difference is significant.

In the context of the rest of President Obama’s address and those of other administration officials before him it is clear that the United States’ position is that it is involved in an armed conflict with al Qaeda and its associated forces.  The President says as much later in the same speech: “the conflict with al Qaeda, like all armed conflicts, invites tragedy.”  An earlier speech by John Brennan, then Assistant to the President for Homeland Security, was even clearer on this point…

(Continue Reading)

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. He and Professor Sarah H. Cleveland filed an amicus brief in Bond v. United States arguing that the Offenses Clause provides an additional basis for upholding the constitutionality of the Chemical Weapons Convention Implementation Act.]

The difference between signature and ratification was not the only point of misunderstanding about treaties at the oral argument in Bond v. United States. Both counsel for the petitioner Paul Clement and some of the Justices also seemed confused about self-executing and non-self-executing treaties. Under U.S. law, the Chemical Weapons Convention (CWC) is a non-self-executing treaty. Article VII(1) provides that “[e]ach State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention” and, in particular, shall “prohibit natural and legal persons anywhere on its territory . . . from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity.” Justice Kagan asked if the treaty could have been self-executing, a possibility Mr. Clement seemed willing to entertain (transcript p. 7). Justice Scalia seemed to think that self-executing treaty would be better because it would require implementation by the states of the United States (transcript p. 33), though he was mistaken because a self-executing treaty binds the judges of every state under the Constitution’s Supremacy Clause. Justice Breyer seemed to think that a self-executing treaty would be worse because it would cut out the House of Representatives (transcript p. 48). And Solicitor General Verrilli made the point that if “a self-executing treaty that requires the President to negotiate and two-thirds of the Senate to ratify it, can impose an obligation of that kind, then it has to be the case that a non-self-executing treaty . . . that has . . . the additional structural protection of the passage of legislation by the Senate and the House and being signed into law by the President, can do what the self-executing treaty can do” (transcript pp. 32-33). Verrilli’s point echoes one that has been made by Rick Pildes, among others, in response to Nick Rosencranz’s reading of the Treaty Power.

The problem with all of this is that it makes little sense in the context of a criminal case like Bond. (more…)