I have just skimmed through the Goldstone Fact-Finding Mission’s Report on Gaza that was released yesterday. It is a beast at almost 600 pages, so I was necessarily more quick than thorough. All in all, my impression of the Report is that it is balanced, corroborated and credible. But this is, mind you, no more than an impression. I can pass no judgment on the Mission’s many factual determinations – in line with what I have said before, I can only consider them more credible (or not) than those of the Israeli government and its rival version of reality.

Regrettably, the bias of the majority of the UN Human Rights Council against Israel is evident, as was the case with the Human Rights Commission that preceded it. To what extent this taints the credibility of the Goldstone Mission is, of course, a hotly disputed matter. For Israel, that taint was such that no cooperation with the Mission was possible. For others, the authority and reputation of the Mission’s members and their decision to look at the conflict more broadly than the Council were enough to mitigate the biased mandate.

And again the question is not what the facts are, but whom to trust, and whose account of the facts to believe. This is as true of us, as distant observers, and of the Mission itself. Its members also had to choose whether to believe a particular witness, or expert, or NGO. They also had to take into account the possibility of staging by Hamas or other Palestinian groups of events, or of potential intimidation or instruction of witnesses. Upon reading the report, if at high-speed, it seems to me that the Mission’s members were well aware of this, and the report is riddled with numerous caveats.

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Editor’s Note: See here for a post welcoming Professor Roth

While we continue to await the long-withheld report of the U.S. Justice Department’s Office of Professsional Responsibility (OPR) on the conduct embodied in the notorious Office of Legal Counsel (OLC) “torture memoranda,” W. Bradley Wendel sorts out some of the issues in the current issue (12:1) of Legal Ethics. In “The Torture Memos and the Demands of Legality” (earlier version available on SSRN), Wendel reviews five books on the subject, including one authored by protagonist John Yoo. The result is a balanced, but ultimately pointed, account that avoids the oversimplifications that have frequently marked both criticisms and defenses of the memos’ authors.

Though reciting the usual criticisms of some of the memos’ more extravagant claims, Wendel renders a distinctive analysis of the government lawyer’s duties. Wendel concedes “that there are many different virtues of government, of which legality is only one.” He moreover allows that Attorney General Robert Jackson’s 1940 rationalizations of the Destroyers for Bases Agreement were morally necessary even though legally dubious. At least, though, “Jackson’s opinions were cautious and hedged, acknowledged limits to the power asserted by the President, and were no broader than necessary for the task at hand.” John Yoo’s position, by contrast, “really does boil down to a failure to differentiate between policy advising and legal advising. … The rule of law has no independent normative significance for Yoo.”

There are several pertinent nuances here that are worthy of further exploration. I will address one set of these now, and deal with others in a subsequent post.

Among both critics and defenders of the memos, there has been a remarkable inattention to the memos’ treatment of breaches of international human rights and humanitarian law obligations as such, as opposed to international crimes specified by treaty and reflected in domestic implementing legislation. Read the rest of this entry »

We are pleased to announce that over the coming days, Professor Brad Roth of Wayne State University will be contributing a series of short but incisive essays (i.e posts in general blog speak) to EJIL:Talk! Professor Roth has appointments at both the Wayne State University Law School and the Department of Political Science. He specialises in international law as well as in political and legal theory. He is author of Governmental Illegitimacy in International Law (OUP) and co-editor of Democratic Governance and International Law (CUP). His latest papers include “Coming to Terms with Ruthlessness: Sovereign Equality, Global Pluralism, and the Limits of International Criminal Justice,” 8 Santa Clara Journal of International Law  (forthcoming Dec. 2009 and available here); and “Just Short of Torture: Abusive Treatment and the Limits of International Criminal Justice,” (2008) 6 Journal of International Criminal Justice 215-39 (available here).

An ICTY Trial Chamber just delivered its judgment in one of its most controversial contempt cases, finding Florence Hartmann, a journalist and previous spokesperson for the ICTY Prosecutor, guilty of contempt of tribunal for disclosing in a book and an article the contents of two confidential ICTY Appeals Chamber decisions in the Milosevic case. The Chamber found, inter alia, that the information in question was confidential, and was, contrary to the submissions of the defense, not in the public domain when Hartmann published her pieces. She was fined 7,000 euros, and an appeal is of course possible.

For previous commentary, see here, here and here.

In August, the United States Senate Foreign Relations Committe, released a report (“Afghanistan’s Narco-War: Breaking the Link Between Drug Traffickers and Insurgents”) which confirmed that U.S. forces in Afghanistan are now mandated to kill or capture drug traffickers in Afghanistan who have links to the Taliban. The Taliban is estimated to receive between $70 million and $500 million dollars a year from the drugs trade  and this money is said to play a critical role in financing the insurgency. Therefore, NATO (led on this issue by the US and the UK) consider it essential to starve the Taliban of the funds which make the insurgency in Afghanistan possible. However, targeting of individual drug traffickers or of drugs labs and other objects associated with the drugs trade raises some fundamental questions about who or what is a lawful target in armed conflict. The US and NATO’s policy appears to be a regrettable return to the notion of “quasi combatants” and to the idea of total war in which persons or industries connected to the war effort become legitimate targets. Given that the International Criminal Court has jurisdiction over acts committed in Afghanistan and the Office of the Prosecutor has been collecting information in order to decide whether to open an investigation into alleged crimes committed in that country (see here and the discussion at Opinio Juris), US and NATO commanders ought to pay careful consideration to the legality of their targeting policy.

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We have decided to postpone the discussion of the articles in the EJIL Anniversary Symposium on Use of Force which I announced last week. Fear not, the discussion will take place! We now plan to hold the discussion later this year, when Issue 4 of this year’s EJIL is published. As announced on this blog in the summer, the last issue of EJIL this year will include a selection of reactions to articles which appeared in its three Anniversary Symposia in Issues  1-3 and the three Anniversary Articles which will featured in those issues. We think the occasion of the publication of this issue would be a more appropriate time to continue discussion of those same EJIL articles on the blog.

My apologies to the authors, commentators and to readers for the last minute change of plans.

I was reading the news today, and was again struck for the umpteenth time by the ease with which people slip into what I now like to call the Wikipedia approach to reality – a phenomenon that I’m sure psychologists have defined in a much more sophisticated way as some form of cognitive bias or another. Take a look at this CNN report regarding a new B’Tselem report on casualties during the Gaza conflict (on which see more from our blog here, here, here, and here):

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Over the next couple of weeks, we will be hosting a discussion of articles in the latest issue of the European Journal of International Law. As readers will know, this year marks the 20th Anniversary of EJIL and each issue of the journal includes a symposium on selected areas of international law. In the latest issue (issue 2), there is a symposium on the Use of Force.  EJIL:Talk! will host an online discussion of three articles in that symposium. Next week we will discuss Christian Tams’ article “The Use of Force Against Terrorists”. We will then host discussions of Ken Anderson’s piece “The Rise of International Criminal Law: Intended and Unintended Consequences” and Dino Kritsiotis’ article: “Close Encounters of a Sovereign Kind”. All of these articles will be freely available on EJIL.org and on the OUP EJIL site.

Professor Joseph Weiler’s editorial for this issue of EJIL points out that:

Dino Kritsiotis of the University of Nottingham and Ken Anderson from American University in Washington DC may have taken on classical topics – but fasten your seat belts and prepare yourself to be challenged. Christian Tams from Glasgow and Tullio Treves of Milan (who serves, too, as Judge of the International Tribunal for the Law of the Sea) deal with the less classical: the use of force in fi ghting terrorists and pirates respectively. Keep those seatbelts fastened. We were not interested in the ‘ Law as it Stands ‘ style pieces. These are all pieces with a view, with a thesis. We expect some disagreement.

EJIL:Talk! is precisely the forum where we expect some of that disagreement to emerge and different points of view to be thrashed out. Commentators on the EJIL pieces will include Kimberley Trapp (University of Cambridge), Gerry Simpson (the London School of Economics and the University of Melbourne), Brad Roth (Wayne State University) and Nikolas Stürchler (Ministry of Foreign Affairs, Switzerland and author of The Threat of Force in International Law).

As always readers are invited to participate in this discussion by posting comments.

After an absence of a couple of weeks and a summer silence on this blog, we are back.  I’ve got a bit of catching up to do. I want to spend the next couple of days discussing some legal issues arising from recent media reports about the war in Afghanistan. Later this week, I will write about US targetting of drug traffickers in Afghanistan with links to the Taliban. Today I wish to address reports (see here, here and here) indicating that Taliban’s leaders have issued a handbook containing a code of conduct for its fighters. In particular, I am interested in how this issuance of such a “code of conduct” may affect the determination of prisoner of war status in international armed conflicts. 

According to FoxNews:

The handbook – written in Pashto and obtained through U.S. military sources – is entitled “Afghanistan Islamic Emirate Rules and Regulations,” and it is addressed to the “Mujahideen Pashto,” or Taliban commanders. Written on May 9 in Kandahar, the birthplace of the Taliban, it characterizes the Taliban’s fight as a “jihad” that can be achieved only if “it is done according to the framework of the established rules and regulations.”

Apparently, part of the purpose of the code of conduct is to win hearts and mind. It is significant that this new code departs from an earlier 2006 code  and contains rules which are similar to rules that exist in international humanitarian law (IHL). For example,while the previous code had explicitly sanctioned  the killing of teachers who instruct contrary to Islamic principles, the new code attempts to reflect the prohibition of targetting civilians and civilian objects. While suicide attacks are not prohibited,

“Suicide attacks should be at high value and important targets because a brave son of Islam should not be used for low value and useless targets,” the code of conduct said. “In suicide attacks the killing of innocent people and damage to their property should be minimized.”

It also says “all mujahideen must do their best to avoid civilian deaths and injuries and damage to civilian property.” And it says that mujahideen “should refrain” from disfiguring of people, such as the severing of ears, nose and lips.

US and Afghan officials have argued that the document is hypocritical, since the majority of civilian deaths in Afghanistan are caused by the Taliban. They also argue that the document is mere propaganda. Its more difficult to see how the document could merely be propaganda as it appears not to have been publicised by the Taliban and had been issued for a few months before it was discovered by the media.

The issuance of the document by the Taliban has a number of implications under IHL. It is interesting to consider whether the issuance of the document would have made any difference to the status of Taliban fighters had it been issued at the time when there was an international armed conflict in Afghanistan (which is no longer the case). The Bush administration argued (see here) that Taliban fighters were not entitled to POW status under the Third Geneva Convention (1949) dealing with Prisoners of War (GCIII)  because the Taliban did not fulfill the conditions of Article 4(A)2 of GCII. Art. 4(A)2 deals with the conditions that irregular forces engaged in an international armed conflict must meet in order to be entitled to POW status. Although the Taliban were the regular armed forces, it is generally accepted that some of the conditions in Art. 4(A)2 also apply to regular forces, though this is not explicitly stated in GCIII. Read the rest of this entry »

On 12 August 1949 the four Geneva Convention were opened for signature. They, as we know, form the bedrock of what came to be known as international humanitarian law. They are also, to my knowledge, the first treaties ever that have become truly universal, meaning that all states in the world are parties to them (well, at least all states whose statehood is generally undisputed). The ICRC will mark the occasion with several events (more here and here).