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15 May

As readers know, Dapo Akande, Jens Ohlin, and I have been having a friendly debate over whether Article 95 of the Rome Statute requires Libya to surrender Saif to the ICC pending the Pre-Trial Chamber’s resolution of its admissibility challenge. (See here and here.) Two organs of the Court have now weighed in on the issue, with a rather ironic inversion: the Office of the Prosecutor takes the position that Libya is under no obligation to surrender Saif, while the Office of the Public Counsel for the Defence, which is...
15.05.12 | |

13 Sep

My friend Jens Ohlin, who teaches at Cornell, has posted an important new essay on SSRN, “The Torture Lawyers.” Here is the abstract of the essay, which is forthcoming in the Harvard International Law Journal: One of the longest shadows cast by the Bush Administration’s War on Terror involves the fate of the torture lawyers who authored or signed memoranda approving the use of torture or enhanced interrogation techniques against detainees. Should they face professional sanction or even prosecution for their involvement? The following article suggests that their fate implicates...
13.09.09 | |

10 May

A busy week on Opinio Juris with a book symposium on Just Post Bellum-Mapping the Normative Foundations. Kristen introduced the great definitional debate on the meaning of “just post bellum” (JPB). Jens Iversion contrasted JPB with transitional justice and Ruti Teitel discussed JPB as transitional justice. Jens Ohlin argued in his post that ideas about omission liability are stumbling blocks towards the acceptance of JPB. Where Eric de Brabandere offered a normative critique of JPB in international law, James Gallen was more optimistic that there was value in an interpretative...
10.05.14 | |

04 Oct

This week on Opinio Juris, the debate on the AUMF continued with Kevin pointing out the lack of evidence on Khorasan’s existence and the denuding of the concept of self-defence, and Jens discussing how ground troops will be necessary in the battle of ISIS, which requires a better legal foundation for the operation than the AUMF. On a comparative and lighter note, Kristen recommended Jon Stewart’s Daily Show piece on the UK’s debate on the authorization of air strikes against ISIL. In a guest post, Myriam Feinberg reported back from...
04.10.14 | |

26 Jul

This week on Opinio Juris, our Emerging Voices symposium continued with a post by François Delerue on cyber operations and the prohibition on the threat of force, a comparison by Otto Spijkers of the Nuhanović and Mothers of Srebrenica cases, and Arpita Goswami’s analysis of the PCA’s recent Bay of Bengal Maritime Arbitration Case between India and Bangladesh. We also welcomed Jens Ohlin for a guest posting stint. This week, Jens discussed competing theories of control in light of the downing of Malaysian Airlines Flight 17 and two decisions by...
26.07.14 | |

27 Sep

This week on Opinio Juris, Jens, Jennifer Trahan and Julian discussed the international legal basis for the air strikes against ISIS. Jens also analysed why Khorasan is seen as a more immediate threat to the US than ISIS. For more on the US domestic legal basis, check out Deborah’s post with a snippet from her Daily Beast article on the perennial US War Powers fight. A guest post by Anton Moiseienko gave some insights in Russian scholarship on the legality of Crimea’s annexation under international law. Finally, Jessica wrapped up...
27.09.14 | |

16 Oct

...mental state for aiding and abetting.” Actually, all scholars read the Article that way. But so what? The issue is Article 25(3)(d). Second, Mike argues that “Article 25(3)(d) expressly does not apply to aiding-and-abetting claims, since aiding-and-abetting claims are covered by Article 25(3)(c), and Article 25(3)(d) applies for acts that ‘[i]n any other way’ contribute to the crime (that is, in ways other than those described in Article 25(3)(c)).” This is the worst kind of formalism — as Jens Ohlin, no less an authority on modes of participation in ICL...
16.10.11 | |

16 Feb

Jordan Response... And what would be the Exec. attempted justification for the extraterritorial reach of a so-called "U.S. common law" that quite obviously could not be binding under customary laws of war or treaty-based laws of war or other customary or treaty-based law on the foeign accused? No jurisdiciton still. John C. Dehn Jens and Jordan, I have never finished the companion article to my JICJ article explaining the U.S. "common law" approach to punishing war crimes. However, Jordan is on track regarding the focus of the article -- which...
16.02.12 | |

09 Dec

...Obama will also refuse to extradite "them"). Shima Interesting post thanks Jens. Thoughts This process is beginning to remind me of Central America in the 70s and 80s. Security services have committed torture in the name of national security and claimed that makes them heroes. Successor governments have been reluctant to look too closely at what their predecessors have done. But in Central America, the passage of significant periods of time eventually made prosecutions possible. Are we likely to see something similar play out here? Joe Response...$81M? How was that...
09.12.14 | |

17 Sep

...a judge , an expert of law , in his official capacity and power . What has been referred to the SC , was facts about critical situations ( geopolitical and humanitarian ) in Sudan , but : The discretion has to do rather with : personal , individual , criminal responsibility , this includes removal of immunity , or rather , let alone when dealing with immunity !! Thanks Jordan Jens David: yes, and the Security Council has set up two international criminal tribunals that do not allow any...
17.09.15 | |

23 Sep

...attacked by ISIS, thus triggering Iraq’s right of self-defense against ISIS." Power: "In addition, the United States has initiated military actions against al-Qaida elements in Syria known as the Khorasan Group to address terrorist threats that they pose to the United States and our partners and allies. ..." Jens David Ohlin The U.S. is asserting two different justifications, one for each target. For ISIS, the argument is collective self-defense on behalf of Iraq. For Khorasan, the argument appears to be U.S. self-defense against al-Qaeda (broadly construed), though there is some...
23.09.14 | |

11 Sep

Jordan Jens David: good point about giving weapons to groups at U.S. taxpayers' expense -- and we used to support bin Laden! Yet, the President does have constitutional authority to engage in collective self-defense with the consent of the Iraqi government, both in Iraq and in Syria against ISIS re: continual armed attacks by ISIS against the Iraqi government. http://ssrn.com/abstract=2061835 His international legal advisers apparently simply do not know it! And this constitutional authority re: "self-defense" was expressly recognized in the preamble to the AUMF (even though, yes, the AUMF...
11.09.14 | |