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Search: self-defense

21 Nov

James Comey and Jack Goldsmith provide here the best (although not completely convincing) defense of the decision to try KSM in New York. I agree that the most defensible explanation is that military commissions remain constitutionally vulnerable, hence it makes sense to use the civilian courts for your most important cases. I don’t quite buy this, but I think this is the most sensible explanation of what seems otherwise a totally baffling decision....
21.11.09 | |

16 Apr

...the time that there was no legal justification for watering down American criminal law’s well-established “entrapment by estoppel” defense in the way that Lederman suggested and that Obama has now endorsed. Here is what I wrote regarding Lederman’s claim that we can infer reasonable reliance from the existence of the OLC’s advice itself (which directly contradicts his insistence that waterboarding is patently illegal): I think Lederman’s argument misunderstands the nature of “entrapment by estoppel.” Section 2.04 of the Model Penal Code provides a typical formulation of the defense: [a] belief...
16.04.09 | |

30 Nov

First of all, I want to thank Chris, Peggy, Julian and Roger for letting me spend some time here at Opinio Juris. As an avid reader, I’m looking forward to the opportunity to exchange ideas with other Opinio Juris readers. To that end, I want to start off with a question about judicial treatment of non-self-executing treaties. U.S. courts have certainly devoted considerable (albeit often inconsistent) attention to the question of when to enforce a U.S. treaty by declaring it “self-executing” or “non-self-executing.” But the inquiry always seems to end...
30.11.05 | |

18 Nov

...makes more sense” (in War Crimes and Just War, 2007: 310). Here’s why: at least insofar as we’re dealing with al-Qa‘ida militants, preference for the war model has perverse even if unintended effects, owing to the militant’s collective self-description or self-understanding as jihadists within the Islamic tradition. The Islamic legal tradition (of Shari’ah and fiqh), which admittedly is no longer as intellectually vigorous and relevant in the manner it once was in the Islamic world, understands (the ‘lesser’) jihad (the ‘greater’ jihad of course being the personal struggle against evil...
18.11.09 | |

04 May

In 2008, the U.S. Supreme Court held in Medellin v. Texas that rulings of the International Court of Justice are not “self-executing” under U.S. law. For this reason, the Supreme Court refused to require Texas to stop executions that the ICJ had held in violation of U.S. treaty obligations. It looks like Colombia’s Constitutional Court has followed that same approach with respect to Colombia’s Constitution: Colombia’s constitutional court ruled on Friday that applying a decision by the International Court of Justice (ICJ) that granted Nicaragua a disputed area of Caribbean...
04.05.14 | |

02 Oct

...Arabs to live together. Partitioning the territory was the only way out. Mihai Martoiu Ticu "In December 1917, when the British Army occupied Palestine, the Arabs could not independently invoke a right of self-determination in general international law even though they had long been numerically preponderant in Palestine, owning most of the land, and even reaching high political office under the Turks. This is because at that time self-determination was, at best, a political principle. It did not exist as an independent legal right, which all peoples could invoke. However,...
02.10.11 | |

18 Nov

status but reflects, however dimly and intermittently, a recognition of the moral stature of man and the conduct appropriate to a rational and self-conscious agent, endowed with a measure of free will and capable of choosing, deciding, assenting, and withdrawing support." I suspect that "the seeming weakness of Natural Law is, in fact, its real source of moral strength and significance. Its operative force depends very much upon the extent of self-awareness and the degree of humanity which men show themselves capable of and seek to attain in a given...
18.11.08 | |

17 Mar

Steve Paterno On my provocative comments on the genocide debate, I have seen everyone came in defense of Alex De Waal and faulting me. Well, I may accept where I am at fault, but I am also compelled to clarify my position further. In this discussions, what I have seen are three major issues: (1) whether the atrocities in Darfur constitutes genocide, (2) if the case of genocide can be presentable in court, (3) and should someone be held accountable for the atrocities committed in Darfur, especially if that someone...
17.03.09 | |

10 Oct

...Without letting some rope out we will hang the defense department and make them powerless to do their jobs to protect this country. Tobias Thienel If the quote from Gen. Cartwright is a fair representation of the strategy for cyberwar, then (a) he is probably right that it is not a good strategy, but (b) it is in no way mandated by international law. Even classical, reactive self-defense (that is to say, the kind of self-defense that is neither anticipatory nor preventive) allows for a reaction to an armed attack...
10.10.11 | |

19 Sep

NSA Warrantless Eavesdropping until the NYT disclosed the program's existence. Moreover, far from being consistent in its defense of its legal justification, the justification has changed from AUMF to article II as the AUMF argument was exposed in all it's weakness by subsequent court decisions. Finally, when given the opportunity to present any of its shifting legal defenses for the program in a court of law, the administration instead has attempted to hide behind standing and states secrets argument. That is, it has expressly avoided subjecting its weak legal arguments...
19.09.06 | |

22 Apr

...also relying on implementing legislation for the Maritime Safety Convention, 18 USC 2280). Conflicting accounts exist over Muse’s age (the judge rejected defense claims that he’s 15) and his role in seizing the U.S. vessel (i.e., Muse was either the brazen leader or an unwilling accomplice forced to participate in the attack). I suspect both issues will continue to draw attention if Muse’s case proceeds to trial. But, for international lawyers the most interesting questions involve the defense’s apparent invocation of the Geneva Conventions. It’s unclear whether and how Muse...
22.04.09 | |

21 Sep

...U.S. territory is attacked). In the U.S. -Philippines Defense treaty, the area covered by the treaty is “the metropolitan territory of either of the Parties.” The Korea Treaty does have similar language “administrative control” language, although I am assuming it does so in order to exclude North Korea. So the U.S. is basically on the hook for a defense of the Senkaku/Diaoyu. And what’s worse, Japan doesn’t have to help the U.S. at all in defending its own territory. Looks like the Japanese got themselves a nice little deal here....
21.09.12 | |