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Category Archives: International Law: LOAC

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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@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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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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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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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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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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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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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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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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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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The Palestinian Authority’s Lose-Lose-Lose Move on ICC

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Monday, January 5, 2015 at 7:00 AM

Just before the end of the year, the Palestinian Authority took steps to become party to the Rome Statute and thereby join the International Criminal Court (ICC). This is a lose-lose-lose move: it is bad for Israel, bad for the Palestinian Authority, and bad for the ICC. Perhaps because the Palestinian Authority believes that Israel . . .
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On Sovereignty, Antarctica, Talmud and the Status of Jerusalem

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Sunday, December 21, 2014 at 3:28 PM

It is always fascinating to watch someone see Jerusalem for the first time. Yesterday, I took a long walk through the Old City with an archeologist and the wonderful group of scholars that Academic Exchange and the Yitzhak Rabin Center have brought to Israel for an incredibly rich week of briefings and discussions with Israelis . . .
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