In association with the International Commission of Jurists

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23 Oct

...some provisions whose impact will have to be determined in practice. The Good There are certainly some improvements in this bill over the military commissions act passed by Congress in 2006, in the wake of the Supreme Court’s Hamdan decision declaring unlawful the first Bush Administration commissions (pursued without congressional authorization). For instance, the new law removes previous language prohibiting anyone from “invoking” the Geneva Conventions as a “source of rights” in any U.S. court. There is instead a much narrower provision denying any unprivileged enemy belligerent a cause of...
23.10.09 | |

21 Jun

...relying on such terms pauses to ask what they mean. According to whose standard are these manifestly subjective labels assigned? Meanwhile, Israeli politicians are labeled according to an altogether different standard: They are “doves” or “hawks.” Unlike the terms reserved for Palestinians, there’s nothing inherently negative about either of those avian terms. So why is no Palestinian leader referred to here as a “hawk”? Why are Israeli politicians rarely labeled “extremists”? Or, for that matter, “militants”? There are countless other examples of these linguistic double standards. American media outlets routinely...
21.06.09 | |

30 Aug

Jordan Response... I seems a bit bizzare to claim that Bashir, who is covered by an arrest warrant in an effort before the ICC to help prevent future murder and genocide by ending impunity (as recognizably required of all parties to the ICC Statute from its preamble and articles 25 and 27-28), should be allowed to roam free in the interest of ending murder and genocide. Functional impunity will not serve peace in the long-term or the need to combat murder and genocide in the short or long term (short,...
30.08.10 | |

30 Apr

“The use of the term “Palestine” is historical fiction; it encourages the Palestine entity concept; its “revived usage enrages” individual Israelis”. Crawford replied “It is difficult to see how it “enrages” Israeli opinion. The practice is consistent with the fact that, ”in a de jure sense”, Jerusalem was part of Palestine and has not since become part of any other sovereignty. That it was not a simple matter, since there was a ''quota nationality'', in regard to which U.S. legislation and regulation continue to employ the term Palestine. See Foreign...
30.04.14 | |

13 Jul

...national security court apparatus needs to be statutorily created. The detainee issue will not be resolved soon, nor will the Global War on Terror end in the foreseeable future. Policy makers must achieve both the reality and appearance of justice for the short and long term. Clearly, many issues need to be hammered out in regards to court composition. The current thrust should simply be to inject new ideas into the national debate over the proper handling of detainees. In that vein, I humbly offer fundamental guidelines for a National...
13.07.07 | |

17 Jul

...this that moves the ball farther up the field towards some assistance with building a long-term peace that is meaningful for all the parties? Point taken.  But in broadening this out, let me ask if anyone would like to respond to the more general observation, which is about the decision between immediate actions and the incentives or disincentives created by those immediate actions.  It is a fundamental question for many of the debates in international affairs, and international law, since that law seeks (whether wittingly or not) to structure incentives....
17.07.08 | |

19 May

Prof. Chimene Keitner at UC-Hastings has posted a short essay in the online version of the Yale Journal of International Law criticizing the novel and influential interpretation of the Foreign Sovereign Immunities Act proposed by Profs. Curtis Bradley and Jack Goldsmith. In a series of articles, Bradley and Goldsmith have argued that the FSIA’s immunity for “foreign state[s]” should be interpreted to include foreign government officials. This argument may very well be adopted by the Supreme Court this term in Samantar v. Yousuf (for background, see here and for my...
19.05.10 | |

20 Feb

...Supreme Court of Canada grappled with questions of self-determination and secession in re Secession of Quebec. The Canadian court found that: [t]he recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination—a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises only in the most extreme cases and, even...
20.02.08 | |

18 Dec

be less on the current situation, but rather whether or not we find that situation acceptable or defensible. Just a couple of additional points. Regarding the suggestion that 'the authors don’t mention teleological interpretation', dynamic interpretation and teleological interpretation are in fact different terms for the same legal interpretive process. As our article is about dynamic interpretation and its limits, you can apply the same analysis to teleological interpretation if that's the term you prefer. Also regarding your point 'the cornerstone of international law is national sovereignty', well the truth...
18.12.14 | |

16 Jan

Today I’d like to offer thoughts on a few aspects of Common Article 3 (CA3) of the Geneva Conventions. I’ve heard lots of questions and concerns about why the President wanted to define in greater detail the terms of CA3. Some say, “The military has been able to train to the standards of CA3 for years. How can it be vague?” Others suggest that efforts to define the terms of the article are simply an effort by the Administration to walk back from its binding treaty obligations. Let me say...
16.01.07 | |

12 Aug

...letter? By the way, substantively, I think the fact that Perisic was simply part of string cite actually makes Judge Harhoff look worse. His whole point (such as it was) was that the Appeals Chamber invented the specific-direction requirement in Perisic to ensure that high-ranking military officers were not held accountable for their crimes. The string cite obviously puts the lie to that claim. Alex Fielding Many thanks, Kevin, for this great introduction to the ICL blogosphere! Regarding the S&Z trial judgement, it is true that specific direction did not...
12.08.13 | |

11 Oct

...review of that determination under the circumstances. All of the legal issues Kevin mentions are ancillary to that primary question. Congress has, in effect, declared “war” on certain organizations (and even some “persons” if one reads the AUMF). The courts possess no power to review that decision, only to ensure its application consistent with any applicable domestic and international law to the extent possible, and only in cases over which the courts may properly exercise jurisdiction. International law does not determine who may be designated an enemy by Congress. It...
11.10.10 | |