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...
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...
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. ...
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...
Following Talisman Energy, the Fourth Circuit has now held in Aziz v. Alcolac, another ATS case, that the mens rea of aiding and abetting under the "law of nations" is intent, not knowledge. That's plainly wrong, as I have pointed out before, so there is no point dwelling on the new decision. But this paragraph deserves specific mention, because it...
One of the most remarkable aspects of how conservative U.S. scholars approach international law is their absolute certainty that the American position on extraordinarily difficult issues is always correct. Consider, for example, Jack Goldsmith's articulation today of when the UN Charter permits the U.S. to use force in self-defense against non-state actors: If the president is authorized to use force against...
As I noted in my previous post, the CMCR's opinion in al-Bahlul repeatedly cites the Nuremberg-era crime of criminal membership in defense of its belief that material support for terrorism and conspiracy qualify as war crimes. I continue to believe that the best counter-arguments to that idea are (1) that criminal membership was not a war crime at Nuremberg (the...
I've received a number of emails arguing that I do not take seriously enough the CMCR's analogy between conspiracy and the crime of membership in a criminal organization. The obvious response is that: (1) criminal membership is not a war crime; (2) the elements of conspiracy and criminal membership are completely different; (3) the tribunals on which the CMCR relied...
Even I thought the Court of Military Commission Review couldn't reach such an absurd conclusion. I was wrong: The Government has made a “substantial showing" that the conduct alleged, including appellant’s (an AUEC’s) agreement with bin Laden and others to commit the object offenses, with knowledge of and intent to further the unlawful purposes of that agreement, and commission of the...
David Bosco has an essay at Foreign Policy arguing that the current financial and security crises, rather than weakening international intitutions, are strengthening them. In short, there are so few options, that leaders are turning to international organizations and relying on them. But there may also be a more fundamental shift that is occurring in international economic policymaking: ...
How could I have missed this? According the Guardian: The principality of Liechtenstein has decided to make itself available to private clients, from $70,000 (£43,000) a night, complete with customised street signs and temporary currency...
Read the Harry Potter books and/or seen all the movies? Concerned about the post-conflict issues after the end of the War with Osama bin Laden Voldemort? The folks at Foreign Policy have got your back, tying together recent articles on post-conflict studies with the Harry Potter universe. (Warning: Spoilers!) Who knew Hogsmeade and Kandahar could have so much in common?...
