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Targeted Killing, Safe Havens, and the President’s West Point Speech

By on December 8, 2009 11:15 am in Afghanistan, Bush, Counter-Terrorism Policy, International Law, Targeted Killing, Terrorism, War and Armed Conflict, War on Terror

Several times in his West Point speech on Afghanistan and Pakistan, President Obama declared that the US would not permit Al Qaeda or “violent extremists” the use of safe havens.  He specifically noted Pakistan, Yemen, and Somalia.  The President unsurprisingly never overtly mentioned Predator or drone missile strikes, or the CIA as the operational agents in many instances of these far-from-covert actions.  But there is little doubt that both in the speech and in actual doctrine, targeted killing through drone strikes has been endorsed and indeed extended.

It was a tactic initiated by the Bush administration, but it was embraced and championed by the Obama administration, expanded and made a centerpiece of operations by it, as news stories before and after this speech in the NYT and Washington Post have repeatedly reported.  But an important question remains as to whether the administration is preserving through use and ‘opinio juris’ the legal authority and doctrines that support these sensible tactics.

Not the only tool of US will, of course – the President went to great lengths to discuss diplomacy, values, and many “soft power” options.  Targeted killing is a means, and a limited one; moreover it is not a strategic end in itself.  And it is also quite true that although speeches of this kind are often constructed so as to make oblique references to be understood as such, it is also a mistake to interpret a large policy pronouncement by reference to particular phrases and oblique references in isolation from the larger whole.  But reading the whole speech, there is little doubt that targeted killing is included among the vital tools for the projection of US power – not just in Afghanistan, not just in Pakistan (and the speech several times referred to Afghanistan and Pakistan together, for obvious [...]

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Noah Sachs Responds to Anderson re Copenhagen and Collective Action

By on November 30, 2009 10:36 pm in Climate Change, Collective Action Problems, Economy, Environment, International Law, Politicizing Science

Noah Sachs, over at PrafsBlawg, is kind enough to respond to my post on the Copenhagen meetings and collective action problems.  It is worth reading the whole thing, but here is a chunk of it.  (If you comment, please remember that Professor Sachs is my guest here, so be courteous.  And my thanks to him for weighing in.)

My question – directed to international law experts in these kinds of negotiations – is how this round of talks is supposed to get past the usual collective action problems.  It takes climate change by assumption, so the issue here is not the leaked memos, Climategate, etc., but a question not of climate science but instead of international law, institutions, negotiations, and collective action.  Professor Sachs’ response in part:

Anderson is too pessimistic.  After all, over 180 countries have already agreed to two prior climate treaties (The UN Framework Convention in 1992 and the Kyoto Protocol in 1997), as well detailed rules for implementation (Marrakech Accords in 2001), all of which are currently being implemented.  The UN Framework Convention remains the organizing document for continued international efforts to address climate change, and the majority of industrialized parties to Kyoto are expected to comply with their Kyoto commitments by the end of the first commitment period, in 2012 (with some notable exceptions, such as Canada).  The EU-15 are on track to exceedtheir Kyoto commitments by 2012.   Reports of the death of Kyoto are greatly exaggerated.

So why would any country agree to, let alone comply with, obligations that impose near-term national costs but bring longer-term benefits to the globe as a whole?  Let me count the ways:

  • Self-interest in avoiding drought, sea-level rise, and hundred-degree summers
  • A recognition that this particular prisoners dilemma calls for global cooperation rather than defection, coupled
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How Are the Copenhagen Talks Supposed to Overcome Collective Action Problems?

By on November 29, 2009 7:42 pm in Climate Change, Collective Action Problems, Environment, International Law

Let me leave aside for the moment all the leaked memos and stuff.  I would describe myself as a non-expert on climate issues who has been gradually persuaded to the following positions:

  • Agnostic on the question of warming and human impact on it;
  • Getting less agnostic as I read the emails and leaked materials;
  • Unpersuaded that the CBA supports radical “front end” attempts to deal with a diffuse threat of uncertain likelihood far down the road, because the discount for uncertainty is too high;
  • Persuaded by the Lomborg position that we should address real damage as it manifests, in the most prudent way;
  • Persuaded by Lomborg that resources proposed for dealing with climate change must be weighed against other uses, particularly more immediate health and welfare issues such as malaria and AIDS; and
  • Persuaded by Lomborg that climate change across a very long time frame must be weighed up, in resource terms, against much more immediate, unquestionable environmental damage not defined as CO2, but regular old air pollution, water pollution, etc., especially as it exists in the developing world, the cities of Asia, Mexico City, other places – and not set aside on the assumption that the developed world’s long term climate change issues should take precedence.

I’m not arguing for this, just letting you know where I’m coming from.  But let the rest of this post be on the assumption that all the climate change warming threats are real, if long term.  If that is so, then, leaving aside climate science and turning just to international law and  diplomacy and politics …

Well, I do not understand how this Copenhagen conference manages to overcome the collective action failure problems that have been encountered in Kyoto and every other exercise in this area.  Extremely diffuse damage from a multitude of [...]

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Landmines and the Obama Administration

By on November 28, 2009 11:24 am in International Human Rights Law, International Law, War and Armed Conflict

Where is the Obama administration currently on the Ottawa Landmines Ban Convention?  The question is on the public table with the opening in a few days of the Cartagena Review Conference, the second diplomatic conference to review the treaty.

The Ottawa Convention banning landmines was opened for signature in 1997 and entered into force in 1999.  The treaty currently has some 150+ parties, but the US has not joined.  I was one of the first NGO organizers of the International Campaign to Ban Landmines, and, if I remember correctly, drafted as a sort-of-joke-but-not-quite the very first draft of the landmines ban treaty.  (It was a sort-of-joke because it was probably the shortest treaty text ever drafted, I suppose, more or less.  It is easy to draft a short treaty if all it does is prohibit things, without exceptions or qualifications.  Three sentences or so of pure categoricals.)  The final, full, serious treaty text as worked up in the 1990s negotiating sessions can be found here.

I think the treaty was a good idea and I’m proud after all these years to have been associated with it.  I’ll leave for another post, however, some of the bigger questions that the passage of time has raised for me, both about the treaty and its substantive content, and also about the effects that the process had in the 1990s in transforming the international NGO sector’s vision of itself as global actors and the development of “global civil society.” But that list of questions starts with the fact that it is not just the US that has not joined the treaty.  Nor is it a list of international bad guys.  Rather, the list of countries that have not joined is pretty much the set of countries that anticipate they might [...]

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Conflicts of Interest for Diplomats, Former Diplomats, and the UN: Ruth Wedgwood on Peter Galbraith

By on November 23, 2009 5:53 pm in International Law

Ruth Wedgwood’s new column at Forbes.com takes up the uncomfortable question of Peter Galbraith and his financial dealings with regard to Kurdish autonomy, oilfields, and Galbraith’s consulting deal with a Norwegian company that could conceivably pay him somewhere up to $100 million.  That discussion is very important and fraught with issues – Galbraith has not been a US diplomat for many years, yet it is obvious that his importance to the transaction is not just that he once was a diplomat but that his credibility today straddles some weird line of public/private.  (James Galbraith takes up his brother Peter’s defense in the Forbes comments.)

There is unlikely to be any American statute or conflict rule that covers this situation, since it has been years since he was employed as a U.S. diplomat. He may become a wealthy man unlikely to slow down in his adventures abroad.

Yet there is a gnawing sense that by choosing to stake a private financial claim of this magnitude — in a triple play where he was publicly working for the Kurds, and yet privately working for the DNO oil company and himself — this savvy former diplomat could prejudice America’s role as a credible broker in diplomacy and reconstruction.

In this post, however, I want to point to the last third of Ruth’s column, which shifts from Galbraith to the broader question of conflicts of interest involving diplomats and former diplomats – and, in particular, conflicts of interest involving UN and former UN actors.  The column gives two examples from the UN mission in Kosovo.

The same problem has arisen — on a smaller scale but also with crucial stakes — in the newly-declared independent state of Kosovo. After the 1999 NATO military campaign that defeated Slobodan Milosevic, the United Nations set up an

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Reading While Traveling, Hard Copy and No Internet

By on November 14, 2009 4:29 pm in Academia, Counter-Terrorism Policy, Economy, Finance, Financial Crisis, Freedom of Speech, International Human Rights Law, International Law, Legal Professor, Legal Scholarship, Robotics, Targeted Killing, Terrorism

I’ve been traveling recently, and so have been away from posting.  One of the enforced virtues of traveling – one of the few virtues of traveling for me these days – is the plane flight with no internet.  And if the big guy in front of me reclines his seat, as he always does, I can’t even get to my computer.  So I read  on flights.  I should have some reading gadget, Kindle or whatever, but I’m not that far along yet, and for that matter I should get an economy class friendly little word-processor to use on flights, but I’m cheap.  Here’s a selection across the varied reading on my flights.  No particular theme or order, I’m afraid (on account of the mixed-up topics here, I think I won’t open to comments; too jumbled to be productive). [...]

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UN Budgets and Follow the Money

By on November 8, 2009 9:01 pm in International Law

The New York Times reports on budget season at the UN and various battles hotting up.  It’s a good piece by Neil MacFarquhar, dated November 7, 2009.  As the article says, that fact that

it costs the United Nations an average of $2,473 per page to create every single document in its six official languages, while outside contractors complete the same work for around $450, prompts diplomats to accuse the organization of running amok during a global financial crisis.

It goes on to discuss the practicalities of the negotiations among the diplomats – the multiple sources of conflicts.  It is well sourced – as the article says, anonymous sourcing, understandable under the conditions – from many diplomats and explains the process by which the budget is reached.  The conflicts?  They include the perennial fight between the large majority of states that don’t pay and the minority that do; the amount that BRICs (Brazil, Russia, India, China) pay in relation to wealthy but smaller GDP states such as Canada; objections to UN Secretariat add-ons; there are others.

My view has long been that the US interest is to starve the General Assembly and most of its direct appendages of funds, while giving voluntary funding to those parts of the UN that work passably well and serve US interests and ideals (yes, there are parts of the UN that the US should financially support strongly, such as the World Food Program).  In effect, undertake a buyout of the parts of the UN that work, and seek budgetarily to contain the parts that don’t or are repositories of anti-US activism (the Human Rights Council, for example).

In any case, whatever one’s view, I’m always surprised by how many experts and partisans of the United Nations are uninterested in its internal budget and [...]

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Law and Robotics Panel at Stanford Law School

By on November 6, 2009 11:15 am in Academia, California, International Human Rights Law, International Law, Robotics, War and Armed Conflict

If you are going to be around Palo Alto next Thursday evening, you might consider attending a panel discussion on robotics and law at Stanford Law School.  I’ll be on a panel alongside some very interesting and knowledgeable folks taking up varied aspects of robotics (my particular interest is robotics and war, but the panel will be considering many areas of robotics).  The particulars are below the fold.

(Update:)  Here’s the assigned topic for comments, following up on Laura’s opening comment … should the panel discuss the Three Laws?  Are they a useful ethical/legal frame for dealing with robots in various aspects of human life?  Did Asimov lead us all astray by proposing them?  Should we instead avoid discussing them altogether?  What would you propose would be a better set of principles/laws/guidelines for robot-human interactions?

(I’ll also be giving a lunch talk/discussion that same day sponsored by various student organizations at SLS specifically on robotics and armed conflict. And thanks Glenn for the Instalanche!) [...]

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Italy Convicts Twenty-three CIA Agents in Absentia

By on November 4, 2009 8:15 pm in Executive Branch, International Law, War on Terror

Unfortunately, I don’t have time to say anything substantive about this now, but AP reports on the conviction of twenty-three CIA agents in absentia in Italy in a trial over an extraordinary rendition.  The AP story is unusually detailed for a wire story and bears reading.  I am in the middle of something and can’t stop to comment  on the substance.

However, I’ll make again the side observation that I have made before that this is the next step in what I have described here and on the OJ blog as “gaming Spain.”  It has been remarked by many observers how the effect of foreign prosecutions or the threat of foreign prosecutions is a backdoor way of punishing administration lawyers and others, such as these CIA agents, for various things that can’t be or are not pursued in American courts.

Less remarked, however, but I predict is the wave of the future, is how these kinds of backdoor prosecutions will, over time, turn out to track Democratic and Republican administrations differently.  Part of this is driven, in my view, simply by a a shared ideology among actors within the Obama administration with the ability to set the agenda on these matters – given the relatively little interest that Republican members of Congress show.  Your mileage may vary on how to interpret the administration’s polite regret and disappointment over the Italian verdicts, for example, and I suppose it is possible that the Bush administration would have shown no greater willingness to use real muscle to make its displeasure felt.

My personal view is that the administration, or at least key players on these matters, however, have concluded that it’s perfectly okay given that the final result is not actual jail for the US persons (I’m lumping together the Italian [...]

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The Second Circuit Dismisses Arar Rendition Case, En Banc

By on November 2, 2009 6:42 pm in Counter-Terrorism Policy, International Law, War on Terror

My Opinio Juris colleague Julian Ku comments on the dismissal of the Maher Arar rendition case by the Second Circuit in an en banc decision, 7-4.  (Arar is the case of the Canadian who was detained by the US and subjected to extraordinary rendition to Syria.)  Like Julian, and perhaps more strongly, I think the Second Circuit made the right call in deciding not to allow a so-called “Bivens action” for alleged constitutional violations by US officials to go forward, for reasons rooted in the conduct of foreign policy.  Read Julian’s brief comment at the link, but he has an earlier analysis in the links to earlier OJ posts.  (If you want to comment, please do so at OJ.)  (Update:  Another OJ colleague, Kevin Jon Heller, citing to Scott Horton, dissents from Julian and me, citing Judge Calabresi’s dissent.) [...]

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Will the Arms Trade Treaty provide effective embargos on human rights violators?

By on November 2, 2009 12:41 pm in Guns, International Human Rights Law, International Law

Reversing the position of the Bush administration, the Obama administration recently announced support for the global Arms Trade Treaty (ATT), which is currently being drafted by the United Nations. The leading voices for the ATT are the International Action Network on Small Arms (IANSA, funded by George Soros, and run by the Open Society’s former gun control executive, Rebecca Peters) and the IANSA spin-off  “Control Arms.” Proponents of the ATT promise that it will impose effective arms on embargos on human rights violators. In a forthcoming article in the Penn State Law Review,  The Arms Trade Treaty: Zimbabwe, the Democratic Republic of the Congo, and the Prospects for Arms Embargoes on Human Rights Violators, Paul Gallant, Joanne Eisen and I examine the issue. Our article shows that if the ATT were to be implemented as its proponents promise (to proactively embargo arms where there are serious risks of instability), there would have to be dozens of new embargos. Because small arms manufacture is already widespread, and is not technologically complex, most targets of new embargos would be able to manufacture firearms domestically. 

We then study two failed arms embargos: Zimbabwe, and the eastern Democratic Republic of the Congo. Zimbabwe is currently under a European Union embargo, but there is no UN embargo because Mugabe’s principal diplomatic allies, China and South Africa, have blocked UN action.  Moreover, the South African government has flagrantly violated South Africa’s own gun control law (which was imposed by the currently-ruling party), which forbids South Africa to authorize arms transfers to human rights violators. If South Africa will not obey its own laws, there is no reason to assume that it will obey treaty law created by the UN.

The eastern Democratic Republic of the Congo is under a United Nations embargo, impsed by [...]

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Is the Honduran Political Crisis Over?

By on November 1, 2009 11:26 am in Government Transparency, International Law

The United States has agreed to recognize the results of this month’s election.  Ousted President Zelaya will be allowed to return to Honduras, and the legislature will vote on whether to allow him to serve out the remaining three months of his term, albeit without control over the military.

Meanwhile, it seems some members of the U.S. Senate objected to a Law Library of Congress report that largely supported the legality of Zelaya’s ouster.  According to this report, Senator John Kerry (D-MA) and Representative Howard Berman (D-CA) asked the Library of Congress to retract the report because it “”contains factual errors and is based on a flawed legal analysis that has been refuted by experts from the United States, the Organization of American States and Honduras” and “has contributed to the political crisis” in Honduras.  The Library of Congress stands by the report, however, and is preparing a response to Senator Kerry and Representative Berman.

If the two lawmakers belive the Law Library of Congress report is flawed, there are better responses than seeking a retraction.  For one, they could demonstrate the report’s failings, perhaps by pointing to alternative analyses that are more persuasive.  Perhaps, they could even encourage the State Department to release the memorandum written by Harold Koh supporting the U.S. government’s position that the removal of President Zelaya constituted an illegal coup. [...]

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UN Special Rapporteur Criticizes US Predator Program in UN Speech

By on October 28, 2009 9:15 pm in International Law, Targeted Killing, War on Terror

Reuter’s reports on a speech given by Philip Alston at the UN, criticizing the US for its drone attacks or, at a minimum, for not being forthcoming on its drone attacks.  Professor Alston (a friend of mine and well known to many VC professor-readers as an NYU law professor) is the UN special rapporteur on extrajudicial execution.  (I would be curious to see video of the speech if anyone knew of a link; I found the Reuter’s description a little breathless.)

The United States must demonstrate that it is not randomly killing people in violation of international law through its use of unmanned drones on the Afghan border, a U.N. rights investigator said on Tuesday.

Philip Alston, a U.N. special rapporteur on extrajudicial, summary or arbitrary executions, also said the U.S. refusal to respond to U.N. concerns that the use of pilotless drones might result in illegal executions was an “untenable” position.

Alston, who is appointed by the U.N. Human Rights Council, said his concern over drones, or predators, had grown in the past few months as the U.S. military prominently used the weapons in the rugged border area between Afghanistan and Pakistan where fighting against insurgents has been heavy.

“What we need is for the United States to be more up front and say, ‘OK we’re prepared to discuss some aspects of this program,’” the Australian law professor told reporters.

“Otherwise you have the really problematic bottom line, which is that the Central Intelligence Agency is running a program that is killing significant numbers of people and there is absolutely no accountability in terms of the relevant international laws,” he said.

As regular readers know, I think the Predator targeted killing program is perfectly legal; on the other hand, the unwillingness of either the Bush or, now, [...]

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Arguing for Corporate Liability Under the Alien Tort Statute, a Bullet Point List

By on October 25, 2009 1:55 pm in International Law

If I were to sit down and sketch out in a single sentence or two each the current approaches (”theories” is way too strong for what I mean here) arguing for corporate liability in the Alien Tort Statute, what would they be?  I give it a shot as bullet points below; I welcome any additions, if you were trying to give a short but reasonably comprehensive list of litigation approaches in favor of finding corporate liability.

One thing I’ve taken away from recent informal discussions of the issue with both academics and litigators, is that the question is not settled in US courts.  Sosa left it open in footnote 20, and although I would earlier have described the leading circuit cases as having accepted the idea, I came away from these various discussions with a sense that it is more open to a change in direction than I thought – and that, even absent a new Supreme Court ruling on the matter.  My sense after the latest Talisman was that US courts had more or less accepted corporate liability under the ATS, signing on to an accumulation of precedents without signing onto a theory of why.  Reining in ATS liability, insofar as they were inclined to do it, would come either as limits on what substantive acts would count or else, as in the 2nd Circuit’s latest Talisman ruling, as limits on secondary liability.  But I came away from recent discussions with a fairly inchoate sense – not a clear set of reasons – that the corporate liability issue itself was not so settled as I might have thought.

Whether that is so or not, it made me think that having some bullet point list in my head of the main lines of argument in favor of corporate liability was [...]

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