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Are US Attacks in Pakistan an Armed Attack on Pakistan? A Response to Timothy Waters

Published on September 30, 2009        Author: 

In a response to my previous post, Professor Timothy Waters, asks why it is that US attacks on non-State actors in Pakistan would not be acts of war against Pakistan. In this post, I attempt to answer that question. First, we can’t impute al Qaeda or Taliban attacks on our soldiers, which are continuous and well-known, to Pakistan merely because Pakistan is incapable of policing its territory.  Pakistan would have “state responsibility” (but not “imputation” or “attribution” [see Nicaragua v. U.S., 1986 I.C.J.]) – so Pakistan could be subject to sanctions not involving the use of armed force if Pakistan financed or even tolerated such attacks (according to the 1970 UN General Assembly Dec. Principles of  International Law, etc., and Nicaragua v. U.S., 1986 I.C.J.) unless Pakistan had effective control over al Qaeda or Taliban operations or later adopted them as its own (U.S. v. Iran, 1980 I.C.J.) — none of which has happened to my knowledge.  I suppose we agree on this.

Second, Professor Waters asks whether by merely using selective armed force in foreign state territory that is in response to ongoing armed attacks emanating from such territory engaged in or directed by non-state actors (triggering necessity as well as Article 51 self-defense) the U.S. has engaged in an armed attack on the state as such.  I understand from general patterns of practice and general patterns of opinio juris (obviously a few states and a few textwriters disagree) relevant to customary international law as well as a proper interpretation of Article 51 of the U.N. Charter that such selective responsive targetings are not an attack of the state as such and that such targetings do not trigger application of the laws of war applicable to an international armed conflict unless the non-state actor being targeted is a “belligerent” (under international law, triggering appllication of all of the customary laws of war vis a vis the armed conflict between the U.S. and such “belligerent” — perhaps still today, the Taliban [clearly the Taliban was at least a “belligerent” when the U.S. used armed force on Oct. 7, 2001 against the Taliban, and it had already been at least a “belligerent” during the war with the Northern Alliance before we went in]).  Read the rest of this entry…


The United States’ Use of Drones in Pakistan

Published on September 29, 2009        Author: 

Editors Note: We feature below a discussion between a group of leading United States academics on the US’s targeting of Taliban and Al Qaeda targets  in Pakistan. Each of the discussants is a  leading writer on international law, and on the use of force in particular.  We are delighted to post this discussion on EJIL:Talk! As usual, readers are invited to post their comments below.

The discussion kicks off with remarks by Professor Jordan J. Paust , Mike and Teresa Baker Center Professor at the University of Houston Law Center. His initial remarks were originally prepared in response to a request from the media for clarification regarding certain issues arising from US use of drones in Pakistan. The other discussants are Professor Mary Ellen O’Connell (Notre Dame Law School); Professor Leila Sadat (Washington University School of Law, St. Louis); Professor Tony D’Amato (Northwestern University School of Law); Professor Geoffrey Corn (South Texas College of Law); Professor Ken Anderson (American University, Washington College of Law); and Professor Timothy Waters (Indiana University at Bloomington).

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The European Union’s Lisbon Treaty: Some thoughts on the “Irish Legal Guarantees”

Published on September 28, 2009        Author: 

Dr. Laurent Pech is Jean Monnet Lecturer in EU Public Law at the National University of Ireland, Galway. He has recently been Emile Noel Fellow at New York University School of Law and a Visiting Scholar at UC Berkeley’s EU Center of Excellence.

 As is well-known, EU Treaties, to enter into force, must be ratified by all EU Member States in accordance with their respective constitutional requirements. In Ireland, following a controversial and ambiguous 1987 judgment of the Irish Supreme Court, ratification of EU Treaties is understood as requiring amendment of the Constitution, which in turn requires a referendum (formally speaking, however, each new EU Treaty is submitted by the Government to the Attorney General to determine if a referendum is constitutionally required: see this study for further analysis).

 In June 2008, to the surprise of many, Irish voters refused to amend the national Constitution to allow for ratification of the Lisbon Treaty, signed in December 2007. The Irish No did not lead, however, to the abandon of the Treaty as most national governments continue to consider this latest updating of the EU “Constitution” indispensable in order to help the enlarged EU to function more efficiently and more democratically. To pave the way for Irish voters to be consulted again on the same text, the Heads of State and Government of the 27 Member States decided that Ireland would be given some “legal guarantees” and “assurances” on the main areas of concern to Irish voters as long as they were perfectly compatible with the Treaty and did not require, therefore, the ratification process to be re-opened. As a result of the EU leaders’ agreement on the substance and legal form of those guarantees last June (see Conclusions of the European Council meeting), the Irish government indicated that a second referendum will be held on Friday, 2 October.

Designed to respond to concerns raised by the Irish people, the “package” agreed by EU leaders consists of:

  • An agreement that, provided the Treaty of Lisbon enters into force, a decision would be taken to the effect that the Commission shall continue to include one national of each Member State;
  • A Decision on the concerns of the Irish people on the Treaty of Lisbon and an agreement to subsequently enshrine the substance of this Decision in a Protocol to be attached to the EU Treaties at the time of the conclusion of the next accession Treaty;
  • A Solemn Declaration on Workers’ Rights, Social Policy and other issues;
  • A unilateral Declaration by Ireland relating to defences issues to be associated with the Irish instrument of ratification of the Lisbon Treaty.

 The commitments and “set of arrangements” agreed by the European Council call for several remarks. Read the rest of this entry…

Filed under: EJIL Analysis, European Union
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The Honduran Crisis and the Turn to Constitutional Legitimism, Part I: The Place of Domestic Constitutional Orders in the International Legal Framework

Published on September 23, 2009        Author: 

Who is the current President of Honduras?  Far from the stuff of quiz shows, this question bears on the very foundations of international law.  The international reaction to the June 28, 2009 ouster of President Manuel Zelaya, though superficially similar to earlier repudiations of coups, is in important respects unprecedented.  Its implications have a profundity that few international actors – least of all, President Zelaya’s strongest international political allies – seem to have considered.

A decade ago, I explored at length the question of Governmental Illegitimacy in International Law.  The title was initially intended as a provocation, since the legitimacy of governments had ordinarily not been considered a proper object of international law.  It had largely been taken as a given that a ruling apparatus exercising “effective control through internal processes” – whether or not formally “recognized” – would be acknowledged to have legal standing to assert rights, incur obligations, exercise powers, and confer immunities on behalf of the underlying sovereign entity that enjoyed membership in the international legal order.

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Sorting Out the Torture Memo Issues, Part II: Deriving Appropriate Frameworks for Establishing Legal Culpability

Published on September 19, 2009        Author: 

In my first post, I began to address concerns brought to mind by W. Bradley Wendel’s excellent review for Legal Ethics (12:1) of five books on the “torture memos” generated by the U.S. Justice Department’s Office of Legal Counsel (OLC). That post lamented the tendency of the discourse on the memos’ improprieties to focus on criminal law issues while neglecting non-penal international legal norms, which were violated much more systematically (and, I would argue, with much more egregious human consequences).

There is, however, a flip side to the observation that the legal structure and political culture of the United States do not place breaches of international legal obligation altogether beyond the scope of domestic legal authority or policy consideration. In retrospectively judging the conduct of the memos’ authors – the subject of the still-withheld report of the Justice Department’s Office of Professional Responsibility, and of potential criminal investigations (in the U.S. and abroad) – one must apply standards in effect at the time and in the specific institutional setting of the activity, however much one may wish to reform those standards prospectively. And here, the case is likely to be closer than is generally imagined, and dependent on more fine-grained assessments than even most legal scholars have appreciated.

As Wendel has elsewhere acknowledged, much of the adverse reaction to the memos stems from revulsion toward very idea of a legalistic rendering of such a morally-charged subject matter. What so many observers find malodorous about the memos is that they seek at all to specify the threshold of criminal liability – especially, with respect to the penal statute implementing the Torture Convention, the line between torture and cruel, inhuman, and degrading treatment. I have attended fora of legal scholars at which the memos have been condemned as embodying the evils of “positivism.” This charge is understandable, given that even the most rigorous and accurate analysis of this distinction is inevitably a disgusting spectacle. But such a charge can only hearten the memos’ authors and their defenders, since it places them comfortably on the traditionalist side of a perennial debate, and deflects attention from the memos’ distortions of positive law. Read the rest of this entry…


Goldstone Report on Gaza: A Question of Trust

Published on September 16, 2009        Author: 

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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Sorting Out the Torture Memo Issues, Part I: The Devaluation of Non-Penal International Norms

Published on September 15, 2009        Author: 

Editor’s Note: See herefor 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…


EJIL:Talk! Welcomes Professor Brad Roth!

Published on September 14, 2009        Author: 

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).

Filed under: EJIL, EJIL Analysis
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Florence Hartmann Found Guilty of Contempt

Published on September 14, 2009        Author: 

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.


US/NATO Targeting of Afghan Drug Traffickers: An Illegal and Dangerous Precedent?

Published on September 13, 2009        Author: 

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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