As regular readers may recall, I am skeptical that the use of chemical weapons, by itself, can justify the use of military force under current international law absent authorization from the U.N. Security Council. Of course, I wouldn't oppose the use of military force by the U.S. to stop the use of chemical weapons in Syria, I just doubt its...
My friend Dapo Akande has a superb post at EJIL: Talk! discussing whether the ICC could prosecute the use of chemical weapons by the government in Syria. I agree almost entirely with Dapo's analysis, but I do want to offer a couple of thoughts about his discussion of the Vienna Convention on the Law of Treaties: The argument that chemical weapons are...
[Harold Hongju Koh is Sterling Professor of International Law, Yale Law School. William S. Dodge is Associate Dean for Research and Professor of Law at the University of California, Hastings College of the Law. Hannah L. Buxbaum is Interim Dean and John E. Schiller Chair in Legal Ethics at Indiana University Maurer School of Law. They are the co-authors of...
Criticism of the specific-direction requirement endorsed by the ICTY Appeals Chamber in Perišić has officially jumped the shark. According to James Stewart, the requirement would have required the British military court in Hamburg to acquit the two German businessmen who provided the Zyklon-B that the SS used to gas Jews in the death camps: In any event, let’s assume that specific direction...
Another person who should know better has misrepresented the ICTY's specific-direction requirement: Owen Bowcott, a legal correspondent for the Guardian. Here is the sub-headline of his new article on the impact of the Perisic judgment: Legal experts say proof that accused 'specifically directed' atrocities now required after tribunal acquits Serbian commanders. And here is the first paragraph of the article: Generals and politicians...
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...
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 --...
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,"...
We are pleased to host the American Journal of International Law on-line symposium on the lead articles of the new issue of the AJIL, which were written by Leila Sadat (Washington University) and Eyal Benvenisti (Tel Aviv University). Today and tomorrow there will be a discussion of Leila Sadat's article, Crimes Against Humanity in the Modern Age. The précis of her piece explains...
International lawyers are used to explaining to skeptics the functional case for diplomatic immunity by emphasizing the benefits it provides. Here's the 5 second version: we want our diplomats to be able to communicate with their host States since the alternative to communication is often (and certainly used to be) conflict. To ensure open communication we need diplomats who feel...
It's been a few months in the making, but today we're kicking off our inaugural Emerging Voices symposium. Until late August, we'll bring you a wide variety of posts, all written by graduate students, junior practitioners and junior academics. So watch this space if you want to read more about international law's often forgotten connections with the humanities, expat voting rights under...
