National Security Law

A couple of months ago, the ICTY Appeals Chamber acquitted Momčilo Perišić, the Chief of the General Staff of the Yugoslav Army, of aiding and abetting various international crimes committed by the Army of Republika Srpska (VRS) during the war in the Balkans. According to the Appeals Chamber, when a defendant is accused of aiding and abetting crimes committed by an organization,...

Bloomberg reports very disturbing statements made by a spokesperson for the Free Syrian Army: Communities inhabited by Shiite Muslims and President Bashar al-Assad’s Alawite minority will be “wiped off the map” if the strategic city of Al-Qusair in central Syria falls to government troops, rebel forces said. “We don’t want this to happen, but it will be a reality imposed on everyone,”...

A number of people have responded to my drone posts (see here and here) by arguing that the "near certainty" standard Obama endorsed regarding the possibility of civilian casualties represents a break from the past -- a new targeting standard, not an old one. If that's the case, someone needs to tell the Secretary of State. Here is what John Kerry...

In previous posts (here and here), I discussed the reasons why Obama will never actually enforce the "near certainty" standard regarding civilian casualties and noted that the standard is vastly more restrictive than IHL's principle of proportionality. In this post, I want to explain why the new targeting standards for the use of lethal force "outside the United States and...

[Michael W. Lewis is a Professor of Law at Ohio Northern University where he teaches International Law and the Law of War.]  On drones there was not that much new from President Obama yesterday, but what he emphasized tells us something about where the debate on drones remains.  Echoing statements that have been previously made by a number of his advisers he...

A couple of people have suggested to me that I should be celebrating Obama's adoption of the "near certainty" standard, because it is more protective of civilians than the principle of proportionality. I will not celebrate the standard, for two very simple reasons. First, I don't believe for a moment that Obama will actually enforce it, no matter how pure...

There is a classic jury instruction that reads, "[a] witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his...

In my previous post, I expressed my skepticism that the OTP will open a formal investigation into the situation -- loosely defined -- involving Israel's attack on the MV Mavi Marmara. In this post, I want to raise two issues concerning Comoros' referral that I find particularly troubling. First, why is Comoros being represented by Turkish lawyers, the Elmadag Law Firm...

Baher Azmy, the legal director of the Center for Constitutional Rights (CCR), has flagged a very interesting ATS case that is due to be re-argued in light of the Supreme Court's recent -- and much discussed here at Opinio Juris -- decision in Kiobel. Here is CCR's description of the case, Al Shimari v. CACI: Al Shimari  v. CACI was originally...

Rep. Mac Thornberry (R-Texas), member of the US House of Representatives Armed Services Committee, plans to introduce a bill that would increase Congressional oversight over kill-capture operations conducted outside of Afghanistan by the US military.  Bobby Chesney discusses the proposed legislation over at Lawfare, and gives a section by section commentary.  Whether this is an important step or not depends on one's starting point, of course; I agree with Bobby that it is a big deal and a welcome step - though if one's view is that all these operations are unlawful, or that  they require judicial oversight, or something else, then you won't be much moved. Seen within the framework of US law and oversight of overseas use of force operations, however, this is an important step.  A couple of observations; see Bobby's post for a detailed discussion.  First, this legislation is with respect to operations conducted by the US military; it does not cover CIA activities.  Second, it covers US military operations with respect to the lines of oversight running back to the Armed Services committees; it does not alter existing oversight processes of Congressional intelligence committees governing covert action as defined in US Code Title 50, but extends and increases oversight over military operations.  These limitations run to several different things. Counterintuitive as many might find it, the CIA is subject to far greater oversight, and at a far higher level of government, in its conduct of Title 50 covert activities than the US military is in its conduct of armed operations under Title 10.  There are good reasons why the military is not subject to direct oversight in essentially tactical decision-making in its traditional military activities once a decision has been made to commit to the use of force.  These decisions have long been understood to be within the discretion and responsibility of commanders who have the expertise to carry them out.  Oversight through the Armed Services committees is robust, including its closed sessions, but is not considered the same as that which Title 50 requires for covert activities.  However, the expansion of the US military into clandestine activities - which might or might not meet the legal definition of "covert" under Title 50 and so trigger those oversight functions - has raised new questions as to whether Armed Services committees oversight, traditionally conceived for conventional conflicts, keeps Congress sufficiently informed and permits sufficiently timely oversight in the case of activities carried by JSOC.