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Category Archives: International Law: LOAC

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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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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The SSCI Report and Its Critics: Torturing Efficacy

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Tuesday, December 16, 2014 at 9:59 AM

Polarization surrounding the SSCI Report (see here for Lawfare’s coverage) has been most pronounced on the efficacy of enhanced interrogation techniques (EITs). The Report and its supporters have proclaimed that EITs never produce useful information. Unfortunately, that pat assertion undermines the possibility of a consensus on future interrogation tactics, including a consensus that rules out . . .
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Findings, Conclusions and Areas of Dispute Between the SSCI Report, the Minority, and the CIA: Part Five

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Friday, December 12, 2014 at 9:36 PM

Here is the fifth and final installment in our running, side-by-side comparison of the twenty findings and conclusions of the Senate Select Committee on Intelligence’s Study on the CIA’s Detention and Interrogation Program—along  with responses by the Committee Minority and the CIA. Summaries of Study findings seventeen through twenty can be found below.  By way of reminder, . . .
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Findings, Conclusions and Areas of Dispute Between the SSCI Report, the Minority, and the CIA: Part Four

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Thursday, December 11, 2014 at 4:25 PM

In this post, we proceed with Lawfare’s ongoing, side-by-side comparison of the SSCI Study’s key findings, and responses to them by both the SSCI Minority as well as the CIA. By way of reminder, the SSCI’s Study made twenty findings and conclusions about the CIA’s detention and interrogation practices after 9/11—twelve of which the blog has summarized so . . .
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Findings, Conclusions and Areas of Dispute Between the SSCI Report, the Minority and the CIA: Part 2

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Tuesday, December 9, 2014 at 9:46 PM

Below, you will find the second installment in our ongoing effort to identify, in summary form, key areas of dispute as between the SSCI, the SSCI minority, and the CIA with regard the CIA’s detention and interrogation program. As you surely know by now, all three today released long-anticipated reports regarding the CIA’s post-9/11 detention and . . .
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Released: SSCI Detention and Interrogation Study, Along With Minority Views and the CIA’s Response

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Tuesday, December 9, 2014 at 11:19 AM

Here is the long-awaited Executive Summary of the Senate Intelligence Committee’s Study of the CIA’s Detention and Interrogation Program.  The latter includes in a single file a foreword authored by Senator Feinstein, as well as the Study’s findings and conclusions.  Additionally, the Committee also has published these materials: Senator Feinstein’s statement;  a history of key dates in in . . .
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Rules of Engagement for the War in Afghanistan in 2015

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Wednesday, December 3, 2014 at 10:44 AM

As reported in an article in the New York Times back on November 21, President Obama recently decided to expand the set of circumstances in which the U.S. military might use force in Afghanistan during 2015. What is the precise nature of that expansion, so far as we can tell from that story? Or put . . .
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U.S. Delegation Asserts Article 16 of Convention Against Torture Applies Outside U.S. Territority in Certain Circumstances, but Law of Armed Conflict “Takes Precedence” In Situations of Armed Conflict

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Wednesday, November 12, 2014 at 2:10 PM

As previewed by Charlie Savage in the New York Times this morning, the U.S. delegation appeared before the Committee Against Torture in Geneva today and announced a modest but important change in the U.S. Government position regarding extraterritorial application of Article 16 of the Convention Against Torture (which prohibits cruel, inhuman, and degrading treatment in . . .
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Folk International Law and the Application of LOAC in Counterterrorism Operations

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Wednesday, October 29, 2014 at 8:54 AM

Naz Modirzadeh’s fascinating series of Lawfare posts (here, here, and here) discussing her article, Folk International Law, provides an excellent primer on the potential consequences and confusion that result from amalgamating distinct legal doctrines, regardless of whether such creative tinkering is couched under the rubric of “policy.” In particular, I think the debate between Modirzadeh and Professor Marty Lederman actually underscores one . . .
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A Bit More On the Debate About the Extraterritorial Scope of the Torture Convention’s Provisions on Cruelty

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Monday, October 27, 2014 at 7:45 AM

In his piece on Nobel Peace Prize Laureates pressuring the President to disclose information about torture, Charlie Savage explains why some officials in the administration oppose the broad extraterritorial expansion of Article 16 of the CAT: The officials opposed to accepting the cruelty provision as applying abroad insist they do not want to resume abusive . . .
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