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Category Archives: International Law

Al-Warafi’s “End of War” Reply Brief

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Friday, May 22, 2015 at 2:00 PM

The Guantanamo detainee, as readers likely know, argued in a February motion that the end of the United States’ war in Afghanistan, as recognized by President Obama, requires his release from Guantanamo. On Wednesday, Al-Warafi filed his reply brief on that issue. It opens as follows: The Government’s argument for the continued detention of Al Warafi, . . .
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Defining Anticipated Military Advantage: the Importance of Certainty

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Friday, May 22, 2015 at 10:32 AM

When scholars analyze Israeli military actions against Palestinian militant groups, the discussion inevitably turns to the principle of proportionality. Advocates and analysts sift through lists of the names of the dead, review drone footage from before missile strikes, and endlessly debate whether anticipated military advantage justified foreseeable civilian costs. Less discussed, however, is a more . . .
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Secretary Of State John Kerry On “An Open and Secure Internet”

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Tuesday, May 19, 2015 at 1:38 PM

Secretary of State Kerry just gave a speech in Korea (May 18, 2015) entitled “An Open and Secure Internet: We Must Have Both.” In this speech, he reiterates the U.S. position that “the basic rules of international law apply in cyberspace. Acts of aggression are not permissible. And countries that are hurt by an attack . . .
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@War: The Rise of the Military-Internet Complex

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Friday, May 15, 2015 at 7:00 PM

Books reviewed in this essay: @War: The Rise of the Military-Internet Complex, by Shane Harris (Houghton Mifflin Harcourt 2014) Cyber Operations and the Use of Force in International Law, by Marco Roscini (Oxford UP 2014) North Korea hacks Sony. Criminals repeatedly steal millions of credit-card and social-security numbers from major retailers. And government officials regularly . . .
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Judicial Review for POWs During Armed Conflict?

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Wednesday, May 6, 2015 at 6:58 PM

Interested in the ongoing debate over the relationship between LOAC and Human Rights Law in general, or the intersection of those bodies of law in relation to non-criminal detention in particular? You won’t want to miss this. In 2012, the UN Human Rights Council asked the UN Working Group on Arbitrary Detention to produce a . . .
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The Increasing State Practice and Opinio Juris on Spying

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Wednesday, May 6, 2015 at 4:30 PM

Ben flagged today that the Germans have been caught out spying on friends and allies. What makes this a story is the way the Germans responded more than a year ago when Snowden’s leaks revealed that the NSA was spying on Angela Merkel: with shock and awe. Stepping back a bit from the substance of NSA’s . . .
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How (and How Not) to Investigate an Armed Conflict: Reflections on Three Recently Released Gaza Reports

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Wednesday, May 6, 2015 at 2:28 PM

In the last two weeks, three new reports have claimed to offer insight into this past summer’s bloody Gaza conflict. Each has been followed by a stream of articles and commentary as pundits rushed to reinforce their own narratives and preconceptions about how the war in Gaza was fought. The continued interest demonstrates (yet again) . . .
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International Law in the U.S. Legal System, 2nd Edition

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Monday, May 4, 2015 at 1:40 PM

Curtis A. Bradley (Duke University Law School professor, leading scholar of US foreign relations law and, not least, Friend of Lawfare) is most recently author of  International Law in the U.S. Legal System, 2nd Edition,  which has just been released in paperback.  The intersection of international law and US law and legal processes, says Bradley, . . .
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The United States’ Opposition to GTMO Detainee’s “End of War” Motion

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Monday, April 27, 2015 at 12:00 PM

The response was filed on Friday, in the habeas case of Al-Warafi v. Obama. Have a look:

Drone Strike Errors and the Hostage Tragedy: Mapping the Issues in the Newly-Catalyzed Debate?

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Friday, April 24, 2015 at 2:57 PM

The use of lethal force (whether via armed drone, manned aircraft, cruise missile, helicopter assault, etc.) has been a cornerstone of U.S. counterterrorism policy for many years, both in places where we have ground combat deployments and places where we do not. Throughout this period, the legality, efficacy, wisdom, and morality of this practice has . . .
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Targeting AQAP’s Mufti Ibrahim al-Rubaysh

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Wednesday, April 22, 2015 at 9:42 AM

Last Wednesday, the New York Times brought us the news that a U.S. drone strike had killed Ibrahim al-Rubaysh—allegedly a top ideologue, spokesman, and operational planner for al Qaeda in the Arabian Peninsula. In a post over on Just Security, NYU Law Professor Ryan Goodman asked, “is a cleric like al-Rubaysh a legitimate military target?” It . . .
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Barking up the Wrong Tree: How Not to Save the British Armed Forces from Legal Defeat

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Tuesday, April 21, 2015 at 2:00 PM

Judicial imperialism is defeating the British armed forces. At least this is what the authors of a report recently published by the Policy Exchange—an influential British think tank—claim. Provocatively entitled Clearing the Fog of Law: Saving our Armed Forces from Defeat by Judicial Diktat, the report argues that the judicial extension of peacetime legal standards . . .
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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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Judicialization of Warfare in the U.K.

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Tuesday, March 31, 2015 at 2:00 PM

A British think tank called Policy Exchange has released a very interesting report on judicialization of British warfare. Entitled “Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat,” the 50-page report by Richard Elkins, Jonathan Morgan, and Tom Tugendhat opens: “The judiciary is pioneering a revolution in military affairs. Empowered by . . .
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The Tenth Year Anniversary of UNSCR 1593, which Referred the Situation in Darfur to the International Criminal Court

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Tuesday, March 31, 2015 at 12:48 AM

Ten years ago today, on March 31, 2005, the U.N. Security Council adopted resolution 1593, which referred the situation in Darfur, Sudan, to the Prosecutor of the International Criminal Court for investigation. Although not a party to the Rome Statute, the United States abstained on the resolution, marking the beginning of a shift by the . . .
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