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Category Archives: International Law: LOAC

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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New CNAS Program on Autonomous Weapons

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Sunday, October 26, 2014 at 9:56 PM

The Center for a New American Security (CNAS) last week announced a new project on “Ethical Autonomy.” (This is a topic on which Ken and I have written, most recently in a piece co-authored with Daniel Reisner titled “Adapting the Law of Armed Conflict to Autonomous Weapon Systems.”) CNAS’s description of the project is below. The . . .
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Folk Law and Obama Administration Mythology: Four Stakes

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Sunday, October 26, 2014 at 8:00 PM

Marty Lederman and I have been engaged in a debate over the past few weeks, and last Monday he wrote a lengthy and thoughtful “Monday Reflection” over at Just Security concerning some of my arguments here at Lawfare and in my article, Folk International Law. I would like to use this post, my last in . . .
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The Convention Against Torture: Extraterritorial Application and Application to Military Operations

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Sunday, October 26, 2014 at 10:37 AM

Belatedly, I want to join the discussion about the extraterritorial application of the Convention Against Torture (CAT), about which Jack commented on Friday, drawing on an article by Charlie Savage earlier in the week. The New York Times opined on the issue on Tuesday in one of its typically misleading, “don’t-confuse-me-with-the-facts” editorials that suggested that the . . .
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The Debate About the Extraterritorial Scope of the Torture Convention’s Provisions on Cruelty is (Almost Certainly) Not About USG Interrogation Policy

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Friday, October 24, 2014 at 10:22 AM

A week ago Charlie Savage reported that the Obama administration “is considering reaffirming the Bush administration’s position that the [Convention Against Torture(CAT)] imposes no legal obligation on the United States to bar cruelty outside its borders.”  The provision of the Torture Convention in question is Article 16, which provides: “Each State Party shall undertake to . . .
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A Reply to Marty Lederman

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Friday, October 3, 2014 at 7:34 AM

Marty Lederman has a thoughtful response over at Just Security to my post from yesterday. I take his argument to be the following: First, that the Presidential Policy Guidance (PPG) does not purport to represent international law, but as policy it is actually better than international law; second, that any increase from the baseline of LOAC is a . . .
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Folk International Law and Syrian Airstrikes

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Thursday, October 2, 2014 at 7:21 AM

Earlier this year, I published an article called “Folk International Law,” in which I argued that there were many unappreciated and little understood costs to the convergence of LOAC and international human rights law. I suggested that the legal debate over targeted killing had driven US-based human rights advocates to contribute to and participate in a . . .
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Readings: Geoff Corn on Precautionary Measures in the Law of Armed Conflict

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Monday, September 29, 2014 at 4:30 PM

(Author’s note: Apologies to Geoff and everyone else – I somehow managed to delete the last couple of paragraphs of this post when it went up.  I’ll recover them–including the part of the post that actually introduces Geoff’s paper!–and get it back up Tuesday. I’m sure everyone felt a trifle let down to have the . . .
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Diane Webber on the ECHJ Opinion in Hassan

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Monday, September 29, 2014 at 7:58 AM

Diane Webber, a British lawyer who recently did a lengthy study of detention law in a variety of countries, writes in with the following account of the European Court of Human Rights decision earlier this month in Hassan v. United Kingdom (ECHR Application No. 29750/09, Judgment of Grand Chamber, September 16, 2014): In an important decision this . . .
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Transatlantic Dialogue on Int’l Law and Armed Conflict: Verdirame on Theory, Human Rights, and Conflict

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Tuesday, September 23, 2014 at 6:20 PM

The newest installment in the Transatlantic Dialogue series is now posted at ICRC’s Intercross blog. It is from Professor Guglielmo Verdirame, and it addresses the larger implications of IHRL’s expansion into the armed conflict setting, including implications for matters of theory. A preview: The relationship between theory and practice in international law eludes easy explanations. . . .
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Transatlantic Dialogue on Int’l Law and Armed Conflict: Geoff Corn on Battlefield Regulation and Crime

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Tuesday, September 16, 2014 at 3:30 PM

Continuing our coverage of the Transatlantic Dialogue on International Law and Armed Conflict, Lawfare is pleased to publish the discussion paper for the conference that Geoff Corn (South Texas) produced on the topic of how criminal responsibility relates to battlefield regulation. Squaring the Circle: The Intersection of Battlefield Regulation and Criminal Responsibility During our conference, . . .
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Transatlantic Dialogue on Int’l Law and Armed Conflict: Lawrence Hill-Cawthorne Responds to Sarah Cleveland

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Tuesday, September 16, 2014 at 1:49 PM

The newest installment in the Transatlantic Dialogue series (see here) has gone live at EJIL:Talk!. It is from Lawrence Hill-Cawthorne (U. of Reading), and it responds to Sarah Cleveland’s earlier post on the Project on Harmonizing Standards for Armed Conflict. A taste: