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30 Jan

Today, the ICTY Appeals Chamber affirmed genocide convictions in the Srebrenica case, Prosecutor v. Popović et al. The full Appeals Chamber judgment is here. The PDF document is 792 pages (including a few short dissents), which is long-ish but certainly not extraordinary by ICTY judgment standards. In my opinion, the most critical part of the judgment relates to the connection between the defendants, their Joint Criminal Enterprise (JCE), and the perpetrators who actually performed the killings. As you will recall, back in the old days when the JCE...
30.01.15 | |

13 Apr

As I write this, the ASIL annual meeting is conducting a well-timed, previously unannounced panel discussion about the legality of the missile strikes against Assad’s airbase in Syria. In addition to Harold Koh (Yale Law School), who has argued in support of humanitarian intervention, the speakers include moderator Catherine Powell (Fordham Law School), Jennifer Daskal (AU Washington College of Law), Steve Pomper (US Holocaust Memorial Museum), and Saikrishna Prakash (UVA School of Law).  I’m sure that it is/was a terrific panel and I’m sorry to have missed it. I want...
13.04.17 | |

23 Sep

Thanks to Kevin Govern and Duncan Hollis for providing the two previous posts (here and here) in this book symposium on Cyber War: Law and Ethics for Virtual Conflicts. In my post, I want to explore the difficulties arising from causal investigations in cyber attacks. Everyone knows that the increasing threat of cyber attacks will place immense pressure on the operational capacities for various intelligence and defense agencies. Speak with anyone in military operations (from several countries), and their lists of security concerns are remarkably similar: Russia, ISIS,...
23.09.15 | |

08 Sep

Russia has skillfully managed to devote military support to the separatists in Eastern Ukraine. Just how much support — and what kind of support — is unclear, since Russia formally denies that they are directly involved in the ongoing hostilities there. Ukrainian officials have insisted that they have specific proof that Russian troops and their equipment have not only crossed the border into Ukraine but have also engaged Ukrainian government troops. It is not unreasonable to speculate that, but-for the Russian assistance, the conflict would have concluded long...
08.09.14 | |

24 Dec

...the requirement and then used its refusal to justify disqualifying them. Interest and Availability These are legitimate requirements, but they are also implicit in Rule 44. Moreover, the (admittedly scanty) evidence indicates that the Registrar manipulated the availability requirement to select its preferred counsel. The Serbian barrister Aleksander Aleksic was disqualified because he serves as co-counsel in the ongoing Pankovic appeal, but the German barrister Jens Diekmann was included on the list even though he serves as co-counsel in the ongoing Sredoe Lukic appeal. And that is true despite the...
24.12.09 | |

11 Sep

Let’s start with the Administration’s newly minted theory (h/t Marty Lederman for posting the operative statement) that the statutory 2001 AUMF authorizes the President’s announced campaign to use force against ISIL in Iraq and Syria. The AUMF does not plausibly extend to ISIL. In addition to the reasons my friends Jens Ohlin, Jen Daskal and others have already highlighted, let me add this: ISIL is not an “associated force” of Al Qaeda by the Administration’s own definition. In May 2013, former State Department Legal Adviser Harold Koh gave a speech...
11.09.14 | |

13 Apr

...11:00 — 11:30 am Break 11:30 — 01:00 pm SESSION 2: Targeted Killings and the Rights of Non-Combatants Moderator: Professor William Ewald Professor Jens Ohlin, “Targeting Co-Belligerents” Abstract (pdf) | Paper (pdf) Professor Craig Martin, “Going Medieval: Targeted Killing, Armed Conflict, and Self-Defense” Abstract (pdf) | Paper (pdf) [revised] Commentator: Professor Alexander Greenawalt 01:00 — 02:00 pm Lunch 02:00 — 03:30 pm SESSION 3: Targeted Killing and its Political Implications Moderator: Professor Stephen Morse Professor Amos Guiora, “Targeted Killing: A Legal, Practical and Moral Analysis” Abstract (pdf) | Paper (pdf)...
13.04.11 | |

11 Sep

I’ll pile on in deploring the legal justification for the expanded operation against the Islamic State. No one is buying the AUMF basis. In addition to Jens below, Jack Goldsmith and Jennifer Daskal have devastating critiques here and here. The justification could have lasting negative consequences for interbranch relations in the war powers context. The 2001 AUMF involved a context in which congressional authorization was necessary, the response to the 9/11 attacks comprising real “war” for constitutional purposes. It has now been deformed beyond all recognition. This will deter future...
11.09.14 | |

15 Jun

On Friday, the DC Circuit vacated al-Bahlul’s military commission conviction for conspiracy. There has been, and will be, much coverage of this decision, especially since the decision is a great candidate for a successful Supreme Court cert petition. Assuming that the federal government wants to appeal, which I can’t imagine it would not, the case would allow the Supreme Court to return to an issue — conspiracy as a substantive offense — that it has not addressed since Hamdan (which left many crucial questions unanswered due to the...
15.06.15 | |

10 Sep

A few minutes ago, President Obama addressed the nation to explain his new policy to contain and destroy ISIS. He is walking a fine line: more airstrikes but no direct ground invasion. Instead, he will fund, equip, and train foreign troops to engage in the ground fighting themselves. While this is a politically popular view (ground troops are always risky), it has serious operational deficits. The U.S. has a history of training and equipping foreign troops and the results are usually unimpressive. Too often the money gets diverted...
10.09.14 | |

10 Jan

...argument and its resemblance to Dinstein’s theory of the “war of self-defense”, see Kevin Jon Heller, “The Use and Abuse of Analogy in International Humanitarian Law” in Jens D Ohlin (ed), Theoretical Boundaries of Armed Conflict & Human Rights (Cambridge University Press, 2016) pp 252–4.) As regards the proportionality requirement in the exercise of self-defense, Trump’s statement cannot therefore be regarded as a total departure from the manner in which the US has invoked Article 51 to explain its drone strikes targeting alleged terrorists outside Afghanistan. Conclusion Trump’s reference to...
10.01.18 | |

21 Feb

This fortnight on Opinio Juris, Kevin recommended an article on China’s proposed broad definition of terrorism, argued that there is no practice supporting the “unwilling or unable” test, and was surprised by the news that David Hicks’ conviction for material support for terrorism has been voided. Julian questioned whether the Outer Space Treaty allows for private exploitation of the Moon’s resources. Kristen advanced four reasons why the Security Council’s new Terrorist Financing Resolution is significant, and Jens explained why he remains troubled by the draft proposal to authorise the President...
21.02.15 | |