After much agonizing,I have reluctantly decided to discontinue my weekly analysis of Crossing Lines. Sadly, the last two episodes of the show have almost scrupulously avoided the ICC; mentions were limited to throwaway dialogue ("I'm with the ICC") or logos on computer screens. Even worse, the most recent episode featured a brief but completely accurate discussion of the Rwandan genocide...
As a progressive, I'm delighted that Bradley Manning was acquitted of aiding the enemy but horrified that he was convicted of espionage. Ethically, Manning is a hero, not a spy. As a law professor, though, I think it's critically important to get the law right -- and unfortunately, many commentators are simply misstating what the Espionage Act says and how courts...
As I recently noted, the Appeals Chamber has rejected Libya's request to suspend its obligation to surrender Saif Gaddafi to the ICC pending resolution of its admissibility appeal. Libya, of course, has no intention of complying with that obligation. Indeed, it admitted as much today: According to Libya’s Justice Minister Salah al-Marghani, Seif, who is being detained in the Libyan city...
Peter has responded at Lawfare to my most recent post. I think we've taken the argument about as far as we can, so I'll give Peter the last word. Suffice it to say that, according to Peter's new post, there is nothing wrong with an appellate court upholding a defendant's conviction (1) for a non-existent war crime -- conspiracy; (2)...
As I was doing some research for my posts on the al-Bahlul amicus brief, I came across a superb student note in the Michigan Journal of International Law written by Alexandra Link. It's entitled "Trying Terrorism: Material Support for Terrorism, Joint Criminal Enterprise, and the Paradox of International Criminal Law," and here is the (very long) abstract: In 2003, the United States...
I noted in the update to my response to Margulies that the Hamdan military commission rejected the government's argument that JCE is a viable alternative to conspiracy as an inchoate crime. It's worth adding that the Khadr military commission rejected the same argument. A brief filed by Khadr provides the necessary background (pp. 2-3; emphasis mine): On 2 February 2007, the Office...
Peter's reply is posted at Lawfare, and it addresses both my criticisms (here and here) and Steve Vladeck's (here). The reply is largely non-responsive to the points that I made in my posts; most of it is dedicated to establishing that the evidence presented at trial is sufficient to conclude that al-Bahlul participated in a JCE to commit 9/11 --...
As I noted in my first post, the amicus brief's central argument is that it does not matter that al-Bahlul was convicted of a non-existent war crime -- conspiracy as an inchoate offence -- because (p. 13) “the defendant had adequate notice that he was charged with conspiracy as a mode of liability for a completed war crime and was offered...
Here is a paragraph you don't often see in the mainstream American media: The conviction of Manning, in other words, would also be a conviction of Bill Keller. Most importantly, if Manning is found guilty on the charge of aiding the enemy, it would strike a deep blow at the stated reason for the New York Times' existence. From the beginning,...
On page 23, the amicus brief concludes that al-Bahlul's "convictions should be affirmed." Presumably, that means the brief is asking for the DC Circuit to affirm al-Bahlul's conviction for conspiracy as an inchoate offence -- that was the charge on the charge sheet, and that is the charge that was upheld by the military commission in its findings. (The other convictions were...
A group of scholars and former military lawyers, including a number of good friends, have filed an amicus brief that argues the DC Circuit should uphold al-Bahlul's conviction by redescribing his conviction for conspiracy as an inchoate crime, which does not exist under international criminal law, as a conviction for completed war crimes via conspiracy as a "mode of liability,"...
Outside of Kigali, no one really doubts that the Rwandan government and military have financed, supplied, and at times even directed M23's actions in the DRC. But it's still nice to see the US government acknowledging that fact: It is the first response by Washington to recent M23 clashes with Congolese government forces near Goma, the largest city in the DRC's...
