Author: Kenneth Anderson

France Recognizes Libyan Rebels

The Wall Street Journal reports that France "formally recognized Libya's main opposition group, the first country to do so." It is an excellent story and walks in brisk fashion through the latest moves in diplomacy and assessment of the military chances of the rebels.  However, it is prudent at this point not to over-interpret the implications of this report about France.  From...

How to Announce ‘Opinio Juris’

Opinio juris meaning the legal concept, not the blog.  The "Fact Sheet" (linked here to Lawfare) that went out with the new executive order on Guantanamo detainees that Deborah notes below has a final section on international law principles.  The points it makes are not related expressly to Guantanamo or detainees there, but about the broader context of laws of...

Humanitarian Intervention in Libya: Follow-up Post

A few days ago, I asked the question (here), what are the best legal arguments that would permit or preclude military intervention in Libya, by the US or some other party or parties, on humanitarian grounds (other than rescue of one’s own nationals)?  The question generated an illuminating array of responses, which I wanted to categorize and expand upon here, but starting with some observations on the law and politics of US policy on intervention, as touching on Libya and beyond.  (ps.  Also check out Jack Goldsmith's discussion of US domestic law and intervention at Lawfare.) I.  Intra-USG Politics So far as I can tell as an outsider to government, the appetite inside the administration, DOD, DOS, or anywhere else where I’ve been able to glean, for any military action on the ground is way, way, way less than zero.  Since that almost certainly mirrors US public opinion, that is not a surprise. But even limited to air action, my personal impression, fwiw, is that the appetite inside the administration to try and undertake a no-fly zone, by ourselves or in coalition, is also zero. The military is deeply opposed (and not just Gates).  I’ve informally spoken with a number of officer friends who think the US trying to do this, whether alone or with the blessing/participation of other parties — including, interestingly, even if blessed by the Security Council — is prudentially a terrible idea.    The idea of the US involved militarily in conflict in yet another Muslim country seems to them a very bad idea, resources are already stretched thin, and no fly zones lead to many unpredictable and unanticipated entanglements. Calls to create a no-fly zone have been expressed loudly by Republicans and “revived” neoconservatives; the Wall Street Journal has an editorial calling for exactly that this morning. As widely noted, it has revived a sharp debate over Bush-era neoconservative foreign policy idealism, grounded in pressing for democracy and liberty for the Middle East.  It is a position long ridiculed by conventionally realist conservatives including George Will, but more importantly also attacked by what I have sometimes called the Obama administration’s “New Liberal Realists.” (I explain these categories in more detail in a long review essay, “Goodbye to all that? A requiem for neoconservatism.”) There have been some calls for the creation of a no-fly zone by liberal American foreign policy idealists, notably former Obama administration DOS official, Anne-Marie Slaughter — now out of the administration and back at Princeton (and of course her views on this are evolving with the situation; this should not be taken as necessarily her last word). I am no expert on Libya and express no view at this point on the prudential or strategic aspect of this.  However, the most striking comment I’ve heard came from a military officer who (like numbers of officers I’ve known) has always been skeptical of the CIA using force, including Predators in targeted killing.  This officer said to me, somewhat tongue in cheek, but somewhat not:  “Where’s the CIA?  Isn’t this what we’ve got a CIA for?  Isn’t this what you think the CIA is supposed to do?  Covert or at least deniable ops? Why don’t they go support the rebels and not pull us into an overt conflict?”

What Are the Best Legal Arguments For and Against Military Intervention in Libya?

Question to OJ readers.  Suppose that you were the chief legal advisor to the US DOS, or to the UK foreign minister, or to NATO, or some country or coalition in which there is active discussion about armed intervention on humanitarian grounds in Libya, for the express purpose of preventing attacks upon the civilian population.  What would you regard as the best...

Conceptualizing Accountability in International Law and Institutions

I had the privilege of moderating a panel today at the Yale International Law Journal annual confab of junior (meaning untenured?) scholars, a panel on accountability of international organizations.  International organizations in this setting means the United Nations, but also a vast array of organizations beyond what we ordinarily think of as the UN (the General Assembly, Security Council, Secretariat, etc.), including many organs and sub-organizations of the UN, and many others, such as the World Bank or the World Trade Organization, that might be in some formal sense part of institutions the UN system but which in fact have their own mechanisms of governance and funding.  The three panelists were Kristin Boon (Seton Hall), David Gartner (Arizona), and Stadler Trengrove (UN Office of Legal Counsel), and their remarks were uniformly excellent, and I commend their work to you. I I am a skeptic of global governance on grounds of being both unachievable on the terms and to the ends that its proponents seek, and undesirable as well, so I am perhaps a surprising choice to moderate a panel that takes more or less as an assumption both of those things.  I am finishing the copy edits of a book to appear in May or June from Hoover Press, Living with the UN, which includes such phrases as “The General Assembly, which vascillates between waste and wickedness ...”  You catch my drift.  My basic point in that book, however, is the message to American conservatives that the UN is not going anywhere and they need to work that into their calculations, principally by turning the vacuous slogan of the Obama administration of  “engagement” with anything that looks “multilateral” into a genuine policy.  Principally that means treating different parts of the UN differently, and engaging with them, or not, or sometimes deeply opposing and obstructing them, each according to its function and effects.

ICCPR and IHL

Bobby Chesney and Human Rights First's Daphne Eviatar debate the extent to which the ICCPR applies in Afghanistan and, in important matters, in regimes of IHL.  The back and forth at Lawfare is well worth reading. Let me be distressingly candid.  This is an area in which I find it difficult to get "inside" the legal debate because I find it...

Orin Kerr on the Strange Fourth Amendment Case of Ashcroft v. Al-Kidd

Orin Kerr is the Fourth Amendment scholar that I definitely am not, so I read with interest his Volokh post this morning on Ashcroft v. Al-Kidd, which the Supreme Court will be hearing next week.  He says it is a strange case for a couple of reasons.  The two basic issues in the case are: First, whether using the material witness...

The Rule of Law as a Condition of Development?

A proposition at the center of much international development work in the past decade or more has been the importance of institutions - whether one talks about "good governance" or the "rule of law" or other terms referring to institutions of governance in a society that permit stability across time.  The claim has always seemed to engage the happy coincidence...

Guantanamo Detainees, What Next?

The Shift from Proportionality to Necessity and an Indirect Comment on Gaby Blum’s Article

Oh heck, one final comment about the Texas International Law Journal discussion of the model air and missile warfare manual, which does run to Gaby Blum's article and discussion here at OJ.  It is only somewhat responsive to the article, so I'll put it below the fold.

The Model Air and Missile Warfare Manual

I don't mean to interrupt the flow of this outstanding set of articles and exchanges on the several HILJ articles - really a glittering collection, and great commentary here, so I'll put my comments on the Texas discussion below the fold.  

Bobby Chesney on Targeting Al-Awlaki

Bobby Chesney has posted to SSRN an important draft paper on the law surrounding the targeting of Anwar Al-Awlaki, the Yemini-American radical Islamist cleric in hiding presumably in Yemen.  It is still in draft form (to appear in final form in the Yearbook of International Humanitarian Law), and Bobby is still revising and soliciting comments from knowledgeable folks.  Here is his comment at Lawfare; the draft paper is up on SSRN at this link. My comments on an initial read?  First, I agree with the overall structure of the analysis — the questions and the order of raising them.  One observation is that I would put less weight on sovereign consent for the jus ad bellum analysis (ie, Yemen permitting the US action).  This is in large part because in my view the bedrock international law principle for the United States is, and always has been, that although territorial integrity is foundational to legal sovereignty, a state that is either unwilling or unable to control the use of its territory by non-state actor terrorist or other armed groups acting against other sovereigns — safe havens — gives up its sovereignty and right to territorial integrity to that extent.  Whether one sees it as an exception to the territorial integrity rule, or instead that the state is failing to exercise sovereignty and so does not have it at that point over the relevant territory, it seems to me a far more important legal principle in addressing terrorist groups than sovereign consent.  The politics and diplomacy of that might be a very different matter, of course. My view of “naked” self-defense outside of armed conflict remains as it has been since the beginning of this debate over targeting, as a formal category.  However, as a factual matter regarding Al Qaeda in the Arabian Peninsula, I believe that the connections between it and AQ proper are sufficient to bring it within the AUMF; at one point I didn’t think that was the case, but I have certainly been persuaded otherwise as more facts have emerged.  In that case, the Obama administration, which has various political and domestic legal reasons for preferring the AUMF-armed conflict characterization over the naked self-defense characterization, is on firm ground.  It would in my view be on firm ground either way.  However, I remain fully committed to the view that self-defense as an independent category remains available as a legal rationale, and that it will be necessary and appropriate in future circumstances.