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The Power to Kill or Capture and the DOJ White Paper

Published on February 11, 2013        Author: 

Ryan Goodman is Anne and Joel Ehrenkranz Professor of Law at New York University School of Law

Thank you to the editors of EJIL: Talk! for inviting me to reflect a bit on the US Department of Justice’s White Paper on Targeted Killings in light of my forthcoming article: The Power to Kill or Capture Enemy Combatants, 24 European Journal of International Law (2013).  The article argues that international humanitarian law (IHL) prohibits killing instead of capturing an enemy fighter in important cases—where many other commentators assume that IHL is highly, if not completely, permissive (see meaty footnote 17, especially if you’re among the latter). My analysis does not require one to take a position on whether the current fight against Al Qaeda constitutes an armed conflict. The analysis is, instead, an exhaustive study of the pertinent jus in bello rules—for whenever an armed conflict triggers their application. Thus with respect to U.S. targeted killings, we can adopt a conditional position: If one accepts (even just for the sake of argument) that the law of armed conflict applies, then one needs to recognize that IHL will sometime impose a duty to capture instead of kill.

The DOJ White Paper is—unsurprisingly–premised on the assumption that the United States is in an armed conflict with Al Qaeda and associated forces, and that IHL applies. Refreshingly for students of international law, the document goes further and accepts that IHL is directly relevant to major questions of domestic law. First, in terms of procedural due process rights, the DOJ states that the constitutionality of the decision to kill a U.S. citizen hinges, in part, on whether “the operation would be conducted in a manner consistent with applicable law of war principles.” Second, it is a federal offense to kill or attempt to kill a US citizen in a foreign country (18 USC 1119(b)). The DOJ explains, however, that the federal law on foreign murder provides a safe harbor—an exception for killings that occur in armed conflict and comply with the laws of war. Finally, the question of Presidential power turns in part on international law. Shortly after September 11th, Congress authorized the President to use force to hunt and kill Al Qaeda members. The DOJ recognizes, however, that authority came with the following proviso: the President’s actions must abide by the laws of war. If they don’t, the President presumably would be acting without affirmative congressional authorization. In short, the White Paper identifies important areas of domestic law that are predicated on compliance with IHL.

The document, however, misunderstands the content of IHL. Read the rest of this entry…

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Job Announcement: Fellowships at Tel Aviv University

Published on February 10, 2013        Author: 

The Global Trust Research Project at Tel Aviv University Faculty of Law invites applications for three types of fellowships: post-doctoral, doctoral and short-term visiting fellowships. The Global Trust research project is funded by a European Research Council Advanced Grant and it will study the extent to which states that exercise regulatory functions should take into account the interests and preferences of foreign individuals and communities located outside their boundaries. Participants in this project will explore the possible moral and legal grounds for requiring states to take other-regarding considerations into account and the institutional mechanisms that could legitimize the external review of states’ compliance with such obligations. For more details regarding the fellowships see here

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Conference Announcement: Frankfurt Investment Law Workshop 2013 & Amsterdam Seminar on International and National Legal Orders

Published on February 10, 2013        Author: 

1) The Frankfurst Investment Law Workshop 2013 will take place on March 22 and 23. The Workshop, which provides a  forum for the discussion of conceptual issues of international investment law, is organised by the Merton Centre for European Integration and International Economic Order, University of Frankfurt in collaboration with the School of Law, University of Glasgow and the Max Planck Centre for Comparative Public Law and International Law. The theme of this year’s workshop will be “International Investment Law and Development: Firends or Foes?”  A full programme is available here. To register please get in touch with Mrs. Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt at S.Schimpf {at} jur.uni-frankfurt(.)de 

2) The Amsterdam Center for International Law will host a seminar entitled: “Interfaces between International and National Legal Orders: An International Rule of Law Perspective”, 14-15 March 2013. You can find the provisional program and the list of participants here.

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An Easy Exam Question on the Right to Life

Published on February 8, 2013        Author: 

You are a police officer, patrolling an area known to be a favourite hunting ground of a serial killer. The killer has managed to elude all efforts to track him down so far. All you know about him is that he is a total slave to ritual, killing with a knife a single female victim on the first day of each month, and never deviating from this pattern. Today is one such day.

Today also seems to be your lucky day.  Through sheer chance you stumble into an alley where you discover what could only be the serial killer repeatedly stabbing his victim through the chest. It unfortunately wasn’t her lucky day and she expires on the spot. The killer is wearing a jacket with the words ‘Yo, I’m Dexter Morgan, serial killer’ emblazoned on the back in bright, red letters. You shout: “Stop! Police! You are under arrest. Drop down your weapon.”

Rather than drop the knife, Dexter throws it at you with lightning-fast reflexes. This being your lucky day, the knife merely grazes your forehead, but the cut starts bleeding profusely. He runs; you pursue. You chase him from corner to corner, street to street. It’s all very exciting, and would look great on screen. But he is fast; certainly faster than you (while you’re not exactly fat, your mother still calls you ‘my big boned sugarpuff’ with a mix of pride and tenderness).

You realize that you are losing him. In a few moments he will be entering a labyrinthian maze of service tunnels going underneath the city. Once he does, you will lose him for sure. You shout: “Stop, or I will shoot!” He predictably ignores you. Well, he does somehow manage to flick a finger in your general direction.

You aim your gun. You know you’ll have the time for only one shot before he enters the tunnels. The blood flowing from the cut on your forehead makes aiming difficult. Even though you are pretty handy with a gun, you think that you will probably miss if you fire at his legs, with the purpose of stopping him. If you fire at his torso, which presents a much bigger target, you will probably hit him – but also probably kill him. You steady your aim, thinking back to your training. Do you fire?

Read the rest of this entry…

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A Few Brief Thoughts on the DoJ White Paper

Published on February 7, 2013        Author: 

The recently leaked US Department of Justice White Paper on targeted killings has now been thoroughly dissected in the blogosphere (see, in particular, Kevin Heller’s and Deborah Perlstein’s comments on Opinio Juris here, here, and here, as well as Steve Vladeck’s take on Lawfare). I have little to add to this – in part because, as Ben Wittes and Susan Hennessay point out, there is actually fairly little new in this memo when you compare it to the various speeches on drones given by Obama administration officials. The substantive arguments or positions are essentially the same.

Where the White Paper is different, however, is in its format and size. It is not the ‘real’ legal memorandum prepared by the Office of Legal Council in the DoJ, which it allegedly summarizes to an extent, but neither is it a mere speech. It is written in legalese, it has footnotes and citations, it has the form of a legal document even if perhaps not all of its trappings. I must say that I really do not understand the administration’s reluctance to release the OLC memo itself, with redactions for any classified materials, and the need to produce this kind of quasi-summary. Nobody’s really happy with that (I won’t even get into a rather unflattering comparison with the policies of the Bush administration on similar matters), and there doesn’t seem to be any real benefit to such a strategy of creeping disclosure (indeed, leakage). The administration has now announced that it will disclose the memo to Congressional intelligence committees, but whether a redacted version will be made public is yet to be clear.

The White Paper is thus what we’ve got so far. And if we judge it on its own merits it doesn’t come accross well, for reasons given mostly be Kevin and Steve. Here’s a few additional points.

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Daniel Barenboim on Israel and Palestine

Published on February 5, 2013        Author: 

The great Daniel Barenboim has a very frank interview with Al Jazeera, dealing largely with his views on the Israeli-Palestinian conflict, which readers might find of interest. His diagnosis of the conflict as being in many respects asymmetrical, but in one aspect being “perfectly symmetrical, and that is the lack of curiosity about the other as human beings,” sounds right to me. This, of course, sounds even better:

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Announcements: Jobs at Durham and Conference at Hull

Published on February 5, 2013        Author: 

Durham Law School is advertising three open positions: 1 x Chair/Reader in Law and 2 x Senior Lecturer/Lecturer in Law. These posts are open to any area of legal scholarship, although for one of the three appointments expertise and ability to teach in public international law (including international investment law) would be welcome. Further particulars can be found here.

The McCoubrey Centre for International Law at the University of Hull is hosting a two-day conference for research students and early career scholars on 4-5 July 2013. The theme of the conference is “Beyond Responsibility to Protect: Towards Responsible Use of International Law?” The call for papers can be downloaded here.

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Incorporating UN General Assembly Declaratory Texts into Domestic Law?

Published on February 4, 2013        Author: 

Last week in Canada, with federal MPs returning to Parliament amidst the continuation of countrywide protests by indigenous peoples, an opposition MP introduced a private member’s bill (Bill C-469) to require the Canadian government to ensure that all federal laws are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (A/RES/61/295). I’ll state clearly at the outset that this isn’t the first such proposal of its kind, with two other private member’s bills with the same general intent of giving domestic legal effect to the Declaration having been introduced in June 2008 (Bill C-569) and February 2009 (Bill C-328), later reinstated in March 2010. But the discussion that has ensued with respect to enacting domestic legislation to give a non-legally binding declaratory text status and pull within domestic law raises interesting questions for our understanding of the sources of international legal obligation (versus the sources of aspiration and political commitment), as well as concerns about the impact of UN efforts that raise unmet expectations. On the other hand, this may simply strike readers in other jurisdictions as very strange, at least in those jurisdictions where there is no chance that a domestic court would ever rely upon, or even cite, a General Assembly resolution text.

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ICC OTP Report on the Situation in Colombia – A critical analysis

Published on February 1, 2013        Author: 

Professor Kai Ambos is Chair of Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg-August-Universität Göttingen, Germany and Judge at the Provincial Court (Landgericht) of Lower Saxony in Göttingen

Preliminary Remarks

On 14 November 2012 the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) published the “Interim Report” on the “Situation in Colombia”. The Report is exceptional for the fact that the OPP usually does not submit such kind of country report at this (preliminary) stage of the proceedings; instead, the Office’s activities are reported in its Annual Report on Preliminary Examination Activities. The reason why this is different in this case is “the high level of public interest” in the Colombian situation. In fact, the very existence of the Report demonstrates the seriousness with which the Office continues to monitor the situation in Colombia.

Despite all its shortcomings, the Report still deserves praise in that it constitutes a unique effort to subsume the complex Colombian situation under the legal regime of the Rome Statute. In fact, the OTP offers the first “official” and impartial account of the Colombian violence in ICL terms and this constitutes an advance in itself, not least with regard to the domestic discussion in Colombia. More concretely speaking, however, the Report offers a mixed picture. While some issues are treated adequately, contributing significantly to an accurate assessment of the Colombian situation, especially with regard to the topic of the “false positives”, the treatment of other aspects leaves more questions than answers. In this sense, the Report makes it difficult to determine with some precision the further course of the OTP’s evaluation of the Colombian situation. Indeed, the Report does not provide for clear standards that could serve as a framework for current and possibly future peace negotiations. Perhaps the question of an “alternative punishment” is the most important one effectively left open by the Report. Clearly, the report reflects the complexities of the Colombian situation which make it so difficult to come to a balanced and satisfactory judgment with a view to possible intervention by the ICC. It may well be argued that this situation demonstrates more than any other the importance of cooperation and mutual learning between local and international criminal justice.

Read the rest of this entry…

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PhD Training School on Contemporary Challenges to International Criminal Law

Published on January 31, 2013        Author: 

To be held at the Institute of International Relations in Prague, on 14-16 March 2013. The PhD Training School is organised within COST Action 1003: “International Law Between Constitutionalisation and Fragmentation: the role of law in the post-national constellation”. More information here.

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