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23 Jan

[John B. Bellinger III is a partner in the international and national security law practices at Arnold & Porter LLP in Washington, DC and an adjunct senior fellow in international and national security law at the Council on Foreign Relations. He served as The Legal Adviser for the Department of State from 2005–2009.] Julian invited me to respond to his post...

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20 Jan

A few days ago, I criticized Judge Pohl's rejection of al-Nashiri's claim that there was no armed conflict between the US and al-Qaeda at the time of the acts alleged in his indictment — such as the attack on the USS Cole in 2000 – thereby depriving the military commission of jurisdiction over those acts.  Judge Pohl's decision relied almost exclusively...

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16 Jan

Okay, I'm exaggerating.  But only slightly.  As Wells Bennett notes today at Lawfare, Judge Pohl has rejected al-Nashiri's contention that the US and al-Qaeda were not engaged in hostilities (an armed conflict in IHL terms) at the time of the acts alleged in his indictment -- primarily the attack on the USS Cole in 2000 -- thereby depriving the military commission...

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07 Jan

[Eugene Kontorovich is Professor of Law at Northwestern Law. This post is cross-posted at The Volokh Conspiracy] In response to my post about Turkey's settlements, Kevin Jon Heller argues that from the perspective of International Criminal Court liability for "indirectly...

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06 Jan

Eugene Kontorovich argues today at Volokh Conspiracy that Israel could minimize the likelihood of an ICC investigation into its transfer of Israeli civilians into the West Bank by emphasizing Turkey's similar transfer of Turkish civilians into Northern Cyprus, which it has been illegally occupying for more than four decades.  Here are the key paragraphs: Cyprus was a state with clear borders...

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31 Dec

The most common reaction to my post on Newtown and the drone program has been to point out that there is a difference between killing in peacetime and killing during war -- that we are both legally and morally more willing to accept the loss of innocent life in the latter, even if the loss in both can be considered...

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30 Dec

There's been an interesting debate in the blogosphere recently about why people find the murder of 20 young children at Newtown so much more horrible than the routine killing of children in Yemen and Pakistan by U.S. drones.  Glenn Greenwald and Falguni Sheth, a philosophy professor at Hampshire College, find the selective outrage indefensible.  Ben Wittes and the Telegraph's Brendan...

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22 Dec

In the comments to my first post on the ICC and retroactive jurisdiction, Johnboy4546 suggested that the Palestinians might self-refer only the situation in the West Bank to the Court.  Such a referral would have two clear advantages for the Palestinians: (1) it would prevent the OTP from investigating Hamas's rocket attacks, which are almost always launched from Gaza, as well...

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01 Dec

A number of commentators have challenged my claim that Articles 11(2) and 12(3) of the Rome Statute would permit Palestine to accept the ICC's jurisdiction retroactively, whether as a member-state or on an ad hoc basis. Here, for example, is what my friend Jennifer Trahan wrote yesterday at IntLawGrrls: Even if an entity becomes a "state," should there be jurisdiction that...

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29 Nov

In the wake of today's long-overdue vote to upgrade Palestine to observer-state status, there seems to be persistent confusion concerning what would happen if Palestine ratified the Rome Statute. In particular, a number of commentators seem to think that it is unclear whether the ICC would have jurisdiction over crimes committed prior to Palestine's ratification. (See Colum Lynch at FP,...

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