In association with the International Commission of Jurists

Author: Kenneth Anderson

21 Jul

CIA director Leon Panetta has named a new National Clandestine Service chief, reports Peter Finn in the Washington Post today.  The new chief, John Bennett, has been serving as station chief in Pakistan, overseeing in particular the expansion of the drone campaign carried out by the CIA there.  One can safely take that as further evidence that the Obama administration...

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10 Jul

On her new article in the latest AJIL, "Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States."  Although not the expert Roger and others are on investment law, I've read this closely and think it is a blockbuster article.  Anthea Roberts, currently a junior professor at LSE, is one of the brightest and best of the young-young...

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09 Jul

This, over at EJILTalk!  Amrita responds to earlier posts by Brad Roth and me, in a discussion that started out around an EJIL article of mine, The Rise of International Criminal Law.  We all have since moved the discussion to a variety of things, and Amrita's response is very interesting and worth reading in continuing those debates. One of the questions...

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29 Jun

Harvard professors Gabriella Blum and Philip Heymann have a new, short article online at the Harvard National Security Law Journal (which, by the way, is doing many interesting things), Law and Policy of Targeted Killing (June 27, 2010).  A version of it will appear as a chapter in their forthcoming book on terrorism and counterterrorism.  It is a fine essay, not over-long, and well worth reading if you at all take an interest in these topics.  Here is a little bit from the introduction (continued below the fold):
More than any other counterterrorism tactic, targeted killing operations display the tension between addressing terrorism as a crime and addressing it as war.  The right of a government to use deadly force against a citizen is constrained by both domestic criminal law and international human rights norms that seek to protect the individual’s right to life and liberty.  In law enforcement, individuals are punished for their individual guilt.  Guilt must be proven in a court of law, with the individual facing trial enjoying the protections of due process guarantees. Killing an individual without trial is allowed only in very limited circumstances, such as self- defense (where the person poses an immediate threat) or the immediate necessity of saving more lives.  In almost any other case, it would be clearly unlawful, tantamount to extrajudicial execution or murder.
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28 Jun

Having now finished America and the Law of Nations, let me add one more thought.  I had originally been interested in this book principally for the period between the world wars; my work on the UN has given me a long interest in the collective action failures of the League, and attempts to judicialize aggression as a crime at the ICC has likewise given me an interest in earlier attempts to outlaw war, e.g., Kellogg-Briand.  But instead I find that the chapter that most captured my attention was Chapter 4, "Dodge, Worcester, Ladd, and Burritt: Christianity, Courts, and World Peace." That chapter argues that to "a surprising extent, the international courts of today are the offspring of nineteenth-century American utopians, religious enthusiasts by and large untrained in the law."  (p. 72.)  Antebellum Americans, at that.   Given my own steeping in the European history of the later 19th century and the founding of the ICRC, I had always assumed that, to the extent there was what today we would call a transnational social movement toward these kinds of utopian impulses, they would have been centered in Europe.  Locksley Hall, The Parliament of Man, all that.  I would not have guessed that fifty years or more before, the provincial, remotely located Americans would have been making waves in these matters.  But Janis makes a strong scholarly case that antebellum American religious progressivists played a deep and wide role in fostering the spirit of internationalist utopianism that embraced the idea of international tribunals. But note - and I think this remains relevant today - that historically this progressive movement was located within, and was sheltered by, a still larger, or at least more transcendentally motivating, universalist utopianism - Christianity itself.  It is not, so far as I can understand from Professor Janis's account, the form of disconnected, deracinated cosmopolitanism that is sometimes urged as the basis for liberal internationalism today.  Perhaps we have come so far, in the progression of culture, technology, and ever more expansive idealism that the mediating universalisms such as religion can be set aside, but I rather doubt it. Rather, the risk of today's deracinated cosmopolitan-liberal internationalism is, on the one hand, that it cannot and does not succeed on its own terms - but still manages to neuter, on the other, the one form of large scale political organization that has shown itself itself, even with its many failures, able to deliver to those it governs, the nation-state - particularly expressed as liberal, democratic, and secular (in the sense of divided public-private).  Vive Westphalia, &tc. ps.  Reading over the comments, it seems as good a time as any to quote from Thomas Berger:
"Address me not in Christian sentiments," said the Lady of the Lake, "the which I find too coarse for fine kings.  Thine obligation was to maintain power in as decent a way as would be yet the most effective."
The irony, of course, is that the Lady offers Arthur a nearly pitch-perfect expression of Niebuhrian Christian moral realism.
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26 Jun

Flying around on various airplanes, I've been reading a couple of books on topics in legal history that I've found enjoyable and intellectually profitable.  One is Stephen Neff's Justice in Blue and Gray: A Legal History of the Civil War. I have benefitted greatly from Professor Neff's earlier books in international law history, War and the Law of Nations and The Rights and Duties of Neutrals, and the Civil War book is no exception.  Professor Neff (whom I had the pleasure of meeting earlier this summer as he is visiting at George Washington this term) is one of the most graceful writers in the field - he reads much less like a law professor; he writes as a sophisticated historian writing for a sophisticated but not specialized audience.  He wears his vast learning lightly and without pedantry. The second book is one that arrived as a review copy from Oxford, Mark Weston Janis' America and the Law of Nations 1776-1939.  Professor Janis is likewise an elegant and fluid writer, and, just having finished this not-too-long book, I'm enthusiastic.  (It is usefully accompanied by his earlier book, which I read back when it came out in 2004, The American Tradition in International Law: Great Expectations, which ran up through 1914.) I am not an expert in US foreign relations law, let alone its history, and both of Professor Janis' books opened my eyes to a great deal of background.  The new volume helps frame the history, finally, as it leads up to the era of the United Nations.  It does so by ranging from international law's place in US 19th century legal opinions and diplomatic writing to the role of incipient Wilsonian international organizations - rise and collapse - up through WWII.  Excellent book, congratulations to Professor Janis.
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20 Jun

Peyton Cooke has an interesting paper on the status of "intelligence" activities in international and domestic law.  It doesn't seem to be on SSRN, but it is "Bringing the Spies in from the Cold: Legal Cosmopolitanism and Intelligence under the Laws of War," 44 USFLRev 601 (Winter 2010).  The argument takes up Eric Posner's critique of "legal cosmopolitanism," as a...

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13 Jun

Over at AidWatch (William Easterly's blog), guest blogger Moussa P. Blimpo puts up a post on the role of universities in development in poor countries, in Africa and elsewhere.  There are a lot of tradeoffs, explicit and implied - should universal primary education take precedence over university education, for example.  What is the role of universities in poor countries in...

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05 Jun

OJ's good friend Marko Milanovic has offered a super-substantive response to my brief comments re self-defense in my not-yet-response to Professor Alston's report on targeted killing and drones.  I will have things to say about that and also my reactions to the interior of the Special Rapporteur's report - happy to say that I avoided any $100 a day fines...

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03 Jun

I have been flattered to be called out on the topic of drones, targeted killing, the CIA, and related issues arising mostly from the release today of Professor Philip Alston's UN special rapporteur report (press release here).  Deborah has a useful summary and some important quotes from the press release in her earlier post.  I've read the report once, and am reading it again, but am not ready to comment.  Well, not quite.  I'm under pressure to produce some commentary for some newspaper and print journalism, while getting the grading completed before my faculty's $100 a day late fine kicks in ... sorry to punt, but I'm not quite sure I want to weigh in with a quick blog post as yet on the topic (okay, this gets a little longer than planned, but it's not really a response to the report). I will say, though, that Philip's careful discussion, set against the way in which the State Department frames the issues, is a demonstration once again of the ways in which public international law seems to be increasingly discourses passing in the night.  It's one reason I hesitate to take the issue up here - I'm not persuaded that we all speak a sufficiently shared methodological language in these highly intertwined legal-political issues to be able to do much more than set out a view and the sources that we find persuasive.  The importance of actual historical state practice of leading states, or not, on the one hand, versus the importance of such things as pronouncements of the ICJ or other tribunals or statements by UN bodies or rapporteurs or military manuals of states that don't actually fight, or not, on the other ... you see the problem. So, yes, I endorse the "independent" self-defense view as an alternative legal basis for the use of force, which is to say, I reject the view that uses of force are a binary exhausted by law enforcement and armed conflict (I've posted another round of this discussion and the CIA in the second hearing testimony that I've just posted at SSRN).  Given the existence of an armed conflict with Al Qaeda, among other parties at this point, whether any particular drone strike is an act within the armed conflict or an exercise of independent self-defense is open to interpretation, with the possibility of overlapping rationales in some cases. I endorse the State Department's view of this, as I understand it from Legal Adviser Koh's ASIL speech, and think it nothing novel - merely the reassertion of US legal views - going well back before the Obama, Bush fils, and Clinton administrations, to Reagan and Bush pere, and no doubt well before that even.  If a state cannot or will not control its territory to prevent it from being used as safe haven for terrorists or terrorist groups, then even the important international legal rule of territorial sovereignty can be overcome by an affirmative defense of self-defense; that use of force might be in the form of armed conflict, but it might be something that does not rise to that level of hostilities and thus constitute an act of self-defense use of force simpliciter.  That use of force is justified under jus ad bellum and is directed against the threat - the terrorists - and because it is a use of force, it must meet standards that are, as the Legal Adviser said, the principles underlying armed conflict rules, distinction and proportionality and, I would add, necessity in the first place in determining to target.  Necessity giving rise to self-defense; distinction in defining the target; proportionality in the evaluation of collateral damage.
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