As Roger has pointed out, the Ninth Circuit has just released a blockbuster ATS decision in the Rio Tinto case. There is a great deal to like in the decision, particularly concerning the liability of corporations under the ATS, but it's regrettable that the majority refused to address the knowledge/intent "debate" concerning the mens rea of aid and abetting under...
In my previous post, I responded to Mike's attempt to explain the amicus brief's distortion of ICTY jurisprudence. In this post, I want to respond to his similar attempt to explain the amicus brief's distortion of the Rome Statute. There are two basic issues: Article 10 of the Rome Statute's relationship to customary international law, and the importance of Article...
There are numerous problems with Mike's response to my posts (here and here) about how the amicus brief distorts the ICTY's jurisprudence. Before getting to them, though, it's important to acknowledge that he and I agree about one thing: decisions of the ICTY are not primary sources of international law. That, too, is international law 101. Even here, though, the...
I appreciate Mike taking the time to respond. I'll address his various criticisms in separate posts; here I want to focus on the amicus brief's claim (p. 14) that Sosa requires a norm applies in ATS litigation only if it has "undisputed international acceptance," a standard that is satisfied only if (p. 7) "the defendant’s alleged conduct [is] universally recognized...
The brief says this with regard to the mens rea of aiding and abetting (knowledge) in Furundzija and Vasiljevic (pp. 10-11): Further, it may be questioned whether the mens rea discussion in these opinions was necessary to their holdings. Liability in those cases likely could have been premised on co-participation in a joint criminal enterprise (such as a rogue paramilitary unit),...
The brief claims the following (p. 11): Moreover, even the ICTY jurisprudence has not settled on a mens rea standard for accessorial liability. Although the Furundzija decision expressly adopts a “knowledge” standard, a subsequent decision, Vasiljevic, requires that the aider and abettor’s act be “specifically directed to assist ...
I've already said pretty much everything I have to say about the mistaken idea that intent is the customary mens rea of aiding and abetting (see here and here), so there is no reason to spend much time addressing the amicus brief Julian mentions. I simply want to note that the brief's reliance on the Rome Statute for the intent...
As readers know, a few of us on the blog have been debating whether the law of neutrality has any relevance to the United States' conflict with al-Qaeda. I'm thus delighted to announce that three essays on that very issue are now available on SSRN as part of a mini-symposium hosted by the Texas International Law Journal. The lead essay...
It appears the right-wing has settled on a shiny new historical comparison to justify the targeted killing of Anwar al-Awlaki. Here is Jack Goldsmith in the New York Times: An attack on an enemy soldier during war is not an assassination. During World War II, the United States targeted and killed Adm. Isoroku Yamamoto, the architect of the Japanese...
The following is a guest-post by David Glazier, Associate Professor of Law at Loyola Law School in Los Angeles. Our thanks to him for providing it. As Kevin noted on Wednesday, the Department of Defense approved military commission charges against Abd Al Rahim Hussayn Muhammad Al Nashiri, alleged USS Cole bombing mastermind, clearing the way for his arraignment and subsequent trial. ...
Moreno-Ocampo has always had the reputation of being more politically savvy than legally savvy. Frankly, he seems completely politically tone-deaf to me. Witness his recent comments on the implications of a possible UN General Assembly decision to give Palestine "observer state" status: A few blocks away from the UN this week, the man at the centre of the controversy said...
The United States has formally referred military-commission charges against Abd al-Rahim Al-Nashiri for his alleged involvement in a number of terrorist attacks between 2000 and 2002. Here is Bobby Chesney's helpful description of the charges: Charge 1: Using Treachery/Perfidy (10 USC 950t(17)) – the idea here is that the use of a civilian boat, civilian clothing, and so forth to...
