In association with the International Commission of Jurists

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18 Jan

John Bellinger’s latest post raises two interesting questions, the first about the function of immunities and the other about the role of the executive branch (specifically, the State Department) in litigation against foreign interests. The immunities rules straightforwardly recognize that what we traditionally regard as core features of judicial competence do not extend, at least not fully, to foreigners. We...

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18 Jan

Since readers have no doubt tired of the law of war by now, I would like to change topics and address some of the immunity issues that confront L on a regular basis. Most of you are familiar with the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1330, 1602 et seq., which codified the restrictive theory of the immunity...

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18 Jan

This exchange between John Bellinger and our terrific group of guests and commenters has been so fascinating that I hesitate to intervene. But the last few posts have moved me to pose a fundamental domestic U.S. law question to John and our readers. Who has the authority to interpret or re-interpret the laws of war on behalf of...

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17 Jan

[Opinio Juris welcomes Professor Ken Anderson as a guest respondent. Professor Anderson teaches at American University's Washington College of Law. He also is a Research Fellow at the Hoover Institution at Stanford University. He regularly blogs at his Ken Anderson's Law of War blog] I am in agreement with John’s characterization of the legal and historical-legal status of...

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17 Jan

[Opinio Juris welcomes Professor Michael Ramsey as a guest respondent. He is a professor of law at San Diego School of Law and an expert in foreign relations law.] My thanks to Opinio Juris for setting up this fascinating exchange and for inviting me to participate, and to John Bellinger for taking time to provide such thoughtful posts. As...

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17 Jan

John’s most recent post raises the question of the nature of the “bargain” theory, as he puts it, of the Geneva Conventions: In separating lawful and unlawful combatants, the Third Convention creates a basic bargain for those engaged in an international armed conflict. Engage lawfully in combat and, if captured, you will receive the comprehensive treatment protections of the Convention. Ignore...

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17 Jan

In this post I would like to take issue with the suggestion that the United States invented the concept of “unlawful enemy combatants” to avoid providing protections under the Geneva Conventions to al Qaida and Taliban detainees. I frequently hear the charge in Europe and elsewhere that this term has no basis in national or international law, and I...

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16 Jan

Let me first say thanks to all that have taken the time to respond to my first posting. I had originally planned to wait until Friday to provide a comprehensive response to the various issues raised, but I have been so impressed by the quality of the dialogue so far that I’ve decided to post this interim response...

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16 Jan

As a regular contributor here at Opinio Juris, it’s been great having John Bellinger guest blogging with us this week and seeing the exchange of ideas prompted by his posts. In addition, I appreciate having additional guest posters such as Eric Posner and Charles Garraway take the time to engage with these complicated issues. In particular, like Peggy...

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16 Jan

As a State Department alumn (I was a Foreign Service Officer, not a lawyer with L), I want to echo Chris’s comments below and respond to some of Eric Posner’s assertions about the role of the State Department the debate over the legal policy to take as regards the GWOT. Eric says of the State Department: The State Department’s job...

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16 Jan

Some of the commenters have been trying to prod John Bellinger to discuss the administration’s internal arguments about the legal approach to the war on terror. Of course, he cannot comment on these matters, but we should not let that stop us from discussing them. Media reports about the debates about international law within the administration appear to reveal three...

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16 Jan

Today I’d like to offer thoughts on a few aspects of Common Article 3 (CA3) of the Geneva Conventions. I’ve heard lots of questions and concerns about why the President wanted to define in greater detail the terms of CA3. Some say, “The military has been able to train to the standards of CA3 for years. How...

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