In association with the International Commission of Jurists

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29 Jul

...in the book. But it’s important to include in this discussion the costs of an aggressive judicial posture in these matters–the costs to democratic accountability for fateful decisions of risk allocation, the costs to military effectiveness, and the costs to long-term policy-making flexibility. I think we have tended to give these costs short-shrift in our enthusiasm for near-term practical gains. And while those costs are difficult to calculate at this stage, I also think the gains have been at least somewhat overstated. The population of Gitmo was declining even before...
29.07.08 | |

09 Apr

Back in 2007, Messrs David Rivkin and Lee Casey’s Wall Street Journal op-ed helped popularize the term “lawfare” among U.S. conservatives, who have used the term to decry legal tactics that challenged US policy in the war on terrorism. As they defined it then: The term “lawfare” describes the growing use of international law claims, usually factually or legally meritless, as a tool of war. The goal is to gain a moral advantage over your enemy in the court of world opinion, and potentially a legal advantage in national and...
09.04.14 | |

13 Mar

Sieges, for example, often produce cascading effects: as people’s access to water and energy is cut off, farmers abandon fields, supplies of fertilizer dwindle, and once-fertile land becomes unusable. The resulting scarcity inflates food prices and punishes the most impoverished first, magnifying social tensions. While the short-term damage can be measured in deaths and displacements, the long-term aftershocks may linger for decades, impeding post-conflict reconstruction. Only by applying a “systems lens” can policymakers and humanitarian actors fully account for these interdependencies. By studying how violent acts merge with resource shortages,...
13.03.25 | |

06 Apr

term effort that will outlast any particular presidential administration and in some ways resembles the combined military and ideological struggle of the Cold War. In the long term war on terror, is it possible to conduct it by relying primarily on the power and authority of the executive branch, or does the long term struggle require that Congress institutionalize it through legislation? This is a very interesting and important idea and Ken has lined up a very knowledgeable (and admittedly non-leftish) group of experts. It looks like a great event!...
06.04.06 | |

12 May

...reality is that there will be times that states use force out of a sense of moral imperative and long-term strategic importance, and not out of a specific self-defense rationale. International law – and we international lawyers – can try to stand in the way, at times constraining morally imperative action, at times getting bulldozed; or we can look the other way and be sidelined, perhaps even tell policymakers and our clients to move forward without us. Or, we can engage and work with them to help craft the most...
12.05.17 | |

21 Feb

...evidence that either has condemned suicide bombings or rocket attacks.” I (Bernstein) checked Al Haq’s website, searching for, among other things, “rocket” and could find no criticism of Palestinian rocket attacks, suicide bombings, or other attacks on civilians. That’s curious. I entered the following search into Google: al haq +”rocket attacks”. The first link is to a legal brief that Al-Haq published on 7 January 2009 entitled “Legal Aspects of Israel’s Attacks on the Gaza Strip During Operation ‘Cast Lead’.” Though certainly devoting most of its attention to Israel’s actions...
21.02.11 | |

29 Jul

...model as a long-term basis for strong counterterrorism actions. The final paragraph of the book describes the conflict as “a long war, a war that isn’t quite a war but isn’t quite anything else either, a war we have still not compellingly defined and may never fully define and yet will need to regulate and prosecute anyway.” Elsewhere, I describe it as “something that goes beyond war altogether” and describe in some detail the costs of relying on the war model–which was, in my judgment, inevitable as a short-term response...
29.07.08 | |

16 Feb

John Bellinger makes a solid observation in the NYT on the Obama Administration’s general approach to international law. The bottom line: Obama is basically the same as Bush (at least during the second term) on international law. Last month marked the one-year anniversary of President Obama’s first signature foreign policy initiative: the issuance of three executive orders ordering the closure of the detention facility at Guantánamo Bay, the suspension of the C.I.A. interrogation program, and the review of all U.S. government detention policies and legal positions. The orders met with...
16.02.10 | |

24 May

...with undergirding the legitimacy of the overall strategy, and undertake ways and means to accomplish -- or seek to accomplish -- those objectives. John C. Dehn Thanks for this, Marty. My only wish is that Adviser Koh would have relied upon, perhaps even emphasized, the "organizations" term in the AUMF rather than "persons." The AUMF says that "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,...
24.05.11 | |

03 Mar

...allegations today and trump the ICC’s jurisdiction without having to join the Rome Statute. But it would take time for Israel to adopt (and find ways to enforce) a policy that outlaws settlement activities. Israel could buy this time by joining the Statute and submitting an Article 124 declaration. By joining the Rome Statute, Israel would gain seven years to find ways to achieve long term justice (whether through negotiations or national adjudication). By not joining the Statute, Israel can find herself investigated by the ICC in the short term....
03.03.13 | |

24 Jun

...Perhaps more importantly, what will be the long-term consequence of the extraordinary public debate over Koh’s nomination? My co-blogger Peter Spiro suggests it is simply going to be the last stand of “sovereigntism” (which would be sad because Peter invented this term). I think that this is really only the beginning of the fight over what is the proper relationship between international law and domestic policymaking. Harold Koh will be confirmed, but it will probably take close to 60 Democratic senators to get him there, and probably a couple of...
24.06.09 | |

09 Nov

...be possible to agree on at least one thing as the conversation at war’s end begins: it would be better to make decisions about which of these laws are needed after we have a developed a game plan for U.S. counterterrorism strategy for the long-term. A strategy not driven by the demands of crisis-driven fear, as it was in the months after September 11, or by ex-post mistake mitigation, the task that confronted the President in his first term, and in important ways burdens him still. What we need to...
09.11.12 | |