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Category Archives: International Law

U.S. Support for the Saudi Air Campaign in Yemen: The Legal Issues

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Wednesday, April 15, 2015 at 3:02 PM

For the past couple of weeks, a Saudi-led coalition has been engaged in a substantial air campaign against Houthi forces in Yemen. The United States is not conducting its own air strikes against the Houthis, but it is providing various forms of material and intelligence support to the coalition, including armaments, air-to-air refueling services, satellite . . .
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Today’s Remarks by Stephen Preston at ASIL

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Friday, April 10, 2015 at 6:00 PM

Today at the Annual Meeting of the American Society of International Law, General Counsel of the Department of Defense Stephen Preston delivered remarks on “The Legal Framework for the United States’ Use of Force Since 9/11.” You can read his full remarks as prepared below:

Terror Money, Mid-game Rule Changes, and Presidential Power

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Thursday, April 9, 2015 at 4:00 PM

As the details of a nuclear deal are hammered out, a case that directly implicates the American-Iranian relationship is clamoring for cert. On Monday, the Supreme Court asked for the view of the Solicitor General in Bank Markazi v. Peterson, an appeal based on a 2013 mega-judgment allowing plaintiffs to collect billions of Iranian Central . . .
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On Palestine’s Decision to “Hold Off” on Referring the Situation in Palestine to the ICC

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Thursday, April 2, 2015 at 2:30 PM

Yesterday there was a small ceremony at the International Criminal Court to mark Palestine becoming the 123rd State Party to the Rome Statute.  For all the attention this event received, what might ultimately be more interesting is what did not happen yesterday. Despite earlier indications that it would, Palestine did not file an article 14 . . .
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The Security Council Should Ask the ICC to Investigate the Islamic State

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Thursday, April 2, 2015 at 10:30 AM

I have an op-ed in the International New York Times today entitled “Make ISIS’ Leaders Face Justice” in which I argue that the UN Security Council should refer the Islamic State to the International Criminal Court. The op-ed is keyed to a report issued last month by the UN Human Rights Office that concluded that . . .
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On the 2014 Gaza War Assessment

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Wednesday, April 1, 2015 at 9:03 AM

The recent “2014 Gaza War Assessment: The New Face of Conflict” deserves careful reading and consideration by all LOAC scholars and practitioners.  The report was written by five richly experienced retired U.S. military officers, all of whom have served during times of armed conflict and understand the inherent difficulties of modern urban conflict. One of the . . .
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International Legal Justification for the Yemen Intervention: Blink and Miss It

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Monday, March 30, 2015 at 12:31 PM

There has been surprisingly little discussion about the international legal justification for the airstrikes in Yemen that are being led by the Saudis. Other than a Just Security post that tackles some of the legal issues, the media and those using force have spent almost no time discussing whether the Saudi-led coalition’s intervention raises legal . . .
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U.S. Policy on the South China Sea

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Thursday, March 26, 2015 at 5:00 PM

At the end of last week, Senators McCain and Reed of the Senate Armed Services Committee and Senators Corker and Menendez of the Senate Foreign Relations Committee sent a letter about the South and East China Sea to Secretaries Kerry and Carter. China’s recent and dramatic reclamation efforts in the South China Sea prompted the . . .
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After Bibi’s Reelection: Why a Pivot to the UNSC is Still a Mistake (Part 1: Settlements)

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Thursday, March 26, 2015 at 2:45 PM

As the White House continues to direct a cascade of criticism at Israeli Prime Minister Benjamin Netanyahu, some commenters are beginning to ask whether the ongoing verbal offensive serves any strategic purpose. More are already theorizing about what precisely the President and his staff mean when they announce they are “reassessing” or “reevaluating” their policies . . .
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The Power of Citizenship Bias

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Monday, March 23, 2015 at 3:00 PM

Following up on my post from last week on the report of the Intelligence and Security Committee (ISC) of the UK Parliament, which inter alia recommended that British law for the first time introduce distinctions between citizens and non-citizens for the purpose of regulating electronic surveillance, I’d like to briefly comment on another relevant development. . . .
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NSC Spokesperson Says U.S. Has “No Intention” of Using U.N. Security Council to Legalize Non-Legal Agreement With Iran

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Thursday, March 12, 2015 at 9:29 PM

I was just about to post on this presser, where State Department spokesperson Jen Psaki refused to answer whether the United States would bless any nonbinding agreement with Iran in a UN Security Council Resolution, a possibility I analyzed this morning.  And then I read this BuzzFeed news story by Hayes Brown, which cites my post, and in . . .
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How a U.N. Security Council Resolution Transforms a Non-Binding Agreement with Iran Into a Binding Obligation Under International Law (Without Any New Senatorial or Congressional Vote)

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Thursday, March 12, 2015 at 8:37 AM

It is now clear that any deal with Iran will by its terms be a non-binding agreement.  That means the United States will have no international law obligation to comply with the agreement, considered in isolation, and that only diplomatic and political considerations – which might not be trivial – will stand in the way . . .
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Non-Legal Agreements: Easier to Make, Easier to Break

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Wednesday, March 11, 2015 at 9:05 AM

If, as Marty and I just argued, the deal with Iran is a non-binding agreement under international law, then, as we stated, “there is little doubt about the President’s constitutional authority to make the deal on his own.”  I think Senator Cotton agrees.  I take that to be the import of his statement this morning . . .
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The Case for the President’s Unilateral Authority to Conclude the Impending Iran Deal is Easy Because it Will (Likely) be a Nonbinding Agreement Under International Law

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Wednesday, March 11, 2015 at 8:38 AM

[Cross-posted at Just Security.] In Marty’s post yesterday about the letter that 47 Senators sent to “the Leaders of the Islamic Republic of Iran,” he briefly addressed the question of “whether the President has the constitutional authority to complete the agreement in question without further congressional involvement.”  The answer to that legal question depends, he wrote, “largely on what . . .
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More on the Senate’s Role in the Impending Iran Deal

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Tuesday, March 10, 2015 at 6:58 AM

Iran’s Foreign Minister Javad Zarif has responded here to the letter from the 47 Republican Senators, on which I commented yesterday.  Just as the Senators’ letter purported to school Iran on U.S. constitutional law of foreign relations, Zarif says that the Senators “not only do not understand international law, but are not fully cognizant of the . . .
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The U.S. Intelligence Community and Non-Neutral Principles

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Thursday, February 26, 2015 at 3:30 PM

Last week, Ben’s NSA Constitution Day speech emerged after a long “declassification” process.  One puzzle Ben grapples with in this speech is why reasonable, educated Americans have–and will continue to have–such a high level of discomfort with what the NSA and other intelligence agencies do. The types of activities NSA is asked to do and the secrecy . . .
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Why We Shouldn’t Import Guantánamo: A Holistic Perspective

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Tuesday, February 10, 2015 at 11:40 AM

It is with great reluctance that I wade into Gabor and Steve’s debate about how to close the U.S. prison at Guantánamo Bay. I’ve made no secret of my distaste for what I’ve described (okay, okay, flippantly described) as “the atmospheric punditry some have come to expect from this blog.” (Although, I must confess that, . . .
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Does the Palestinian Turn to the ICC Mandate a Cut-off in Economic Assistance?

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Monday, February 9, 2015 at 1:45 PM

The Palestinian turn to the International Criminal Court has Israel’s supporters fretting over potential prosecutions and international delegitimization. But as a recent letter from 75 senators to Secretary of State John Kerry illustrates, the most immediate repercussions will likely be felt by Palestinians themselves—in the form of an automatic cutoff in American economic assistance. The . . .
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Is Jordan Attacking ISIS on a New Legal Theory?

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Saturday, February 7, 2015 at 4:00 PM

In the past few days, in the wake of ISIS’s horrific burning of a Jordanian air force pilot, Jordan has adopted a highly combative tone toward the group.  It has matched this rhetoric with action: Its air force carried out dozens of strikes against ISIS targets on Thursday.  This is a significant increase from the number and pace . . .
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How Not to Close Guantanamo: Bring It Here

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Thursday, February 5, 2015 at 9:46 AM

Ben asks “What Would it Take to Close Guantanamo?” and he provides a thoughtful response weighted toward the political landscape. But there’s another not-so-merely-philosophical question that underlies his question: what does it mean to “close Guantanamo?” For purposes of rapprochement with Cuba it may have to mean U.S. out of Guantanamo altogether. That’s not going . . .
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