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Category Archives: International Law

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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The Legal Basis for the Mughniyah Killing

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Saturday, January 31, 2015 at 1:30 PM

The Washington Post and Newsweek report that the CIA in 2008 worked with Israel’s Mossad to kill Imad Mughniyah, Hezbollah’s operations chief, in Damascus, Syria.  The Post says that Mughniyah “had been implicated in the killing of hundreds of Americans, stretching back to the embassy bombing in Beirut [in 1983] that killed 63 people, including . . .
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Neither War Nor Peace: Israel’s Northern Borders

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Friday, January 30, 2015 at 11:49 AM

For now, the recent eruption of violence along the Israeli-Lebanese border appears to be contained. With thousands of its fighters bogged down in Syrian battles, Hezbollah’s strategic context is radically different from 2006, when a carefully planned kidnapping of Israeli soldiers dragged Israel into a bloody war in southern Lebanon.  Most analysts seem convinced that . . .
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Throwback Thursday: Rewards and Bounties

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Thursday, January 29, 2015 at 9:17 PM

On January 5, Dominic Ongwen, senior commander in the Lord’s Resistance Army, was captured by Seleka rebels in the Central African Republic (CAR). Subsequently, the rebels transferred Ongwen to the US military, who has maintained a small force in the region since 2011 to assist in the hunt for the LRA’s commanders. The question was what . . .
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Supreme Court to Decide Another Foreign Sovereign Immunities Act Case

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Sunday, January 25, 2015 at 2:56 PM

The Supreme Court granted certiorari on Friday in OBB Personenverkehr AG v. Sachs, a case involving the commercial activity exception to the Foreign Sovereign Immunities Act (FSIA).  Although the case was the subject of an en banc decision by the Ninth Circuit, the grant nonetheless comes as a bit of a surprise, both because the . . .
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How Many People Are We Really Deporting?

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Tuesday, January 20, 2015 at 7:13 AM

Under the shadow of Mexico’s twin volcanoes in the tiny mountainous village of San Mateo Ozolco, Erasmo Aparicio stands outside his house, arms crossed, black hood pulled down over his hair. “Fucking Mexico, no fucking money,” he spits out in defiant English. Now a campesino by his own description making 100 pesos—or just under $7—a . . .
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The ICC Opening of a Palestine Preliminary Examination: A Non-Event

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Friday, January 16, 2015 at 11:42 AM

Today’s announcement by the Prosecutor of the International Criminal Court that she is opening a “preliminary examination” into alleged crimes on Palestinian territory since June 13, 2014 is really a non-event and should not be seen in any way as an indication of what the ICC may or may not do in the future.  It . . .
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China Releases a “Position Paper” in the Ongoing Philippines-China Arbitration

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Thursday, January 15, 2015 at 3:30 PM

As readers might recall, two years ago the Philippines launched an arbitration process against China under the auspices of the U.N. Convention on the Law of the Sea (UNCLOS). Although its exact claims remain shrouded from public scrutiny, Manila apparently asserted that—to simplify a bit—Beijing had violated the international law of the sea by claiming . . .
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Notes on the Erosion of Norms of Armed Conflict

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Wednesday, January 14, 2015 at 10:28 AM

I spent the last two days at a terrific conference in at Columbia Law School on asymmetric warfare and the laws of armed conflict, organized by Matthew Waxman and the great Stanford international relations scholar, Steve Krasner. The conference was interesting in bringing together top-flight international relations theorists and international law experts to discuss an issue . . .
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What to Do About Ongwen?

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Wednesday, January 14, 2015 at 9:00 AM

The Washington Post has a fascinating article today about the legal issues arising from the surrender of one of the the notorious brutal leaders of the Lords Resistance Army, Dominic Ongwen.  Apparently he surrendered to Muslim rebels in the Central African Republic who, in turn, transferred custody of Ongwen to American forces on January 5.  . . .
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Futher Reflections on the Need for a Criminal Law Enforcement AND Military Approach to Terrorism

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Monday, January 12, 2015 at 6:36 PM

I was pleased to see my former DoJ Criminal Division colleague David Kris’s re-post of his thoughtful 2010 Brookings remarks, in which he argued that both criminal law enforcement and military force are appropriate tools to use in the conflict with Al Qaida.  As usual, I agree with David’s pragmatic approach.  The U.S. and European conflict . . .
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Law Enforcement as a Counterterrorism Tool

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Monday, January 12, 2015 at 10:39 AM

As I read the exchange between Bryan, Wells and Jack about law enforcement versus military methods of dealing with terrorism, I was reminded of a speech I gave at the Brookings Institution in 2010, which was later turned into an article.  And, perhaps not surprisingly, I found that I continue largely to agree with myself, . . .
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France: At “War” With Radical Islam: A Brief Response to Jack Goldsmith

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Sunday, January 11, 2015 at 9:47 AM

If someone had predicted a day that I would be agreeing with France’s socialist party Prime Minister more than with Jack Goldsmith, I would have told them I was more likely to be attacked by a crazed guinea pig (two of which we adopted for Christmas so maybe not all that unlikely).  But that day . . .
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On War and Crime

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Saturday, January 10, 2015 at 12:00 PM

Yesterday at Lawfare, Bryan Cunningham sought to breathe new life into the “military versus law enforcement” debate over terrorism, along the way deeming the horrific assaults in Paris to be “consequences” of France’s police-centric strategy. He thus finds fault with the current counterterrorism regime generally, and invites others to join in a broader discussion about . . .
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The United States and China’s Nine-Dash Claim

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Wednesday, January 7, 2015 at 12:35 PM

Early last month, the U.S. State Department released the latest in its Limits in the Seas series. These surveys examine the maritime claims of nations around the world and analyze whether they are consistent with international law. Normally, these reports constitute fascinating reading for a small community of maritime law enthusiasts, but they tend to . . .
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Palestine and the ICC: An (Imagined) View from Inside the Court

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Monday, January 5, 2015 at 10:00 AM

There has been considerable speculation about how the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) might react to the State of Palestine’s move to join the ICC. Some have suggested that the OTP will jump at the chance to do a case outside of Africa. Others believe that the Prosecutor will . . .
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