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Category Archives: Non-International Armed Conflict

Readings: Civilian Intelligence Agencies and the Use of Armed Drones by Ian Henderson

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Friday, June 27, 2014 at 3:00 PM

Footnote 44 of the recently released and much-discussed OLC Awlaki memorandum is heavily redacted, but what’s left reads, in part: Nor would the fact that CIA personnel would be involved in the operation itself cause the operation to violate the laws of war. It is true that CIA personnel, by virtue of their not being part of . . .
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Report of the Stimson Center Task Force on Drone Policy

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Thursday, June 26, 2014 at 3:27 PM

The Stimson Center released today the report of its Task Force on US Drone Policy.  The ten-member task force, of which I was a member, was chaired by General John Abizaid and Rosa Brooks.   The report makes eight recommendations for overhauling US drone strategy; improving oversight, accountability, transparency and clarifying the international legal framework applicable . . .
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Targeting Non-Al Qaeda Members in Yemen (?): The Role of Consent

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Thursday, May 15, 2014 at 4:30 PM

The other day both Bobby here and Ryan Goodman at Just Security here picked up on news reports that DOD may be willing to provide additional military cooperation (including logistics and direct fire capabilities) to the Yemeni government. Ryan then takes the opportunity to ask: what type of force is the U.S. government undertaking in Yemen already? . . .
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The US and Human Rights: A Federalist Society Debate

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Thursday, March 20, 2014 at 7:36 PM

Criticizing the US stance on human rights treaties is practically an international sport, as evidenced by the bruising reception the UN Human Rights Committee (HRC) gave to a US delegation last week.  As Bobby reported here, the US disappointed the HRC by declining to agree with former State Department Legal Adviser Harold Koh’s recently disclosed . . .
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A Reply to Wittes on the United States and Extraterritoriality

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Monday, March 10, 2014 at 4:34 PM

I’m usually a big fan of Ben’s cogent observations on Washington’s folkways.  Unfortunately, I can’t be as enthusiastic about Ben’s reply to my earlier post on Harold Koh’s memos regarding extraterritoriality of human rights treaties.  Ben overstates the duration of the United States’ position against extraterritoriality.  He also includes some pokes at Koh’s service as . . .
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A Dissenting Word on the Harold Koh Memoranda

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Monday, March 10, 2014 at 2:00 PM

I want to take issue with Peter Margulies’s laudatory remarks this weekend about the Harold Koh memos on extraterritorial application of the ICCPR and the CAT—you know, those memos that mysteriously showed up in the New York Times just as the United States was preparing to present its views on the ICCPR to the UN . . .
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Extraterritoriality and Human Rights: Time for a Change in the U.S. View?

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Saturday, March 8, 2014 at 8:11 AM

As Jack has frequently observed, legitimacy and effectiveness often go hand-in-hand.  The two comprehensive State Department memoranda by former Legal Adviser (and Yale Law School dean) Harold Koh released Friday on extraterritoriality under the ICCPR and Convention Against Torture make this point powerfully and persuasively (see commentary by Marko Milanovic here and Jennifer Daskal here).  . . .
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NYT on the United States’ Position on Human Rights Treaties

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Friday, March 7, 2014 at 9:45 AM

Well worth a read: Charlie Savage’s story, for the New York Times, regarding Obama Administration debate over whether the International Covenant on Civil and Political Rights, and the Convention Against Torture, impose legal obligations on the United States in places beyond its borders. The piece cites, among other things, two memos written by then-State Department Legal Adviser Harold . . .
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A Ukraine-Russia Issue: Does It Violate LOAC to Shed Your Identification While Still in Uniform?

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Thursday, March 6, 2014 at 3:55 PM

That is the claim put forward, with gusto, by Jonathan Eyal of the Royal United Services Institute in this Guardian article.  Eyal correctly notes the importance of the principle of distinction, and more specifically the obligation of combatants to distinguish themselves from civilians.  And if it were true that Russian forces in the Crimea were . . .
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Is (or Was) Ukraine in a Non-International Armed Conflict?

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Friday, February 21, 2014 at 12:10 PM

In the wake of Thursday’s violence, many press reports began to state that the violence in Ukraine was heading toward—or constituted—a civil war.  See here, here, and here. The press was using this term in the colloquial sense, not the legal sense.  But it’s worth asking the legal question: Is (or was) Ukraine already in . . .
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Readings: “Charting the Legal Geography of NIAC” by Michael Schmitt

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Monday, February 3, 2014 at 1:11 PM

I’ll be participating this week in a Naval War College workshop on “Legal Implications of Autonomous Weapons,” and since my presentation topic at the workshop is “area of operations” with respect to autonomous weapons, I thought it might be a good idea to check on any recent scholarship on what has come to be called . . .
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How Does the UN Define “Direct Participation in Hostilities”?

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Monday, October 21, 2013 at 5:00 PM

One theme of Ben Emmerson’s interim report on remotely piloted aircraft and targeted killings is that governments must be more transparent with regard to any civilian deaths they cause.  It’s easy to find lots of other calls for greater transparency on related issues.  For instance, many have urged the United States to be more transparent . . .
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Interim Report by UN Special Rapporteur Ben Emmerson on Drones in Counterterrorism Operations

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Thursday, October 17, 2013 at 3:00 PM

You can find the interim report—the final won’t be submitted to the U.N. Human Rights Council until 2014, apparently—here. There’s a good bit to pore over in the paper authored by Emmerson, with whom Lawfare chatted during his May fact-finding trip to the United States.  (Just Security’s Sarah Knuckey, who Emmerson consulted in the course of his work, . . .
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Al-Libi and Detention at Sea

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Thursday, October 10, 2013 at 5:00 PM

While no navy captain likes stormy weather, the controversy over the temporary detention on a navy vessel of the captured Al Qaeda leader Abu Anas al-Libi is a tempest in a teapot.  As John Bellinger noted Monday, al-Libi’s detention appears to clash with the language of Article 22 of the Third Geneva Convention.  John’s championing . . .
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White House Fact Sheet on Use of Force Away from Hot Battlefields

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Thursday, May 23, 2013 at 3:30 PM

THE WHITE HOUSE Office of the Press Secretary May 23, 2013  Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities Since his first day in office, President Obama has been clear that the United States will use all available tools . . .
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Harold Koh’s Speech at the Oxford Union

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Tuesday, May 7, 2013 at 9:09 PM

Earlier today, former State Department Legal Adviser Harold Koh gave a talk at the Oxford Union, entitled “How to End the Forever War?”  His remarks begin as follows: Thank you, Mr. President and Members of the Union, for inviting me here to speak. I am honored to return to this University, where I first came 38 . . .
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Arming Syrian Rebels: Lethal Assistance and International Law

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Wednesday, May 1, 2013 at 10:00 AM

On the Sunday talk shows, various members of Congress exhorted the United States to increase its assistance to the Syrian rebels, whether by providing them with additional (lethal) equipment, or by establishing a no-fly zone, or by entering Syria to secure its chemical weapons caches.  Last night the Post reported that the Executive Branch is seriously . . .
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Drone Strikes in Pakistan: Consent and Obfuscation?

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Thursday, March 7, 2013 at 9:05 AM

The New York Times recently carried two reports by Declan Walsh about alleged drone strikes that took place in Pakistan’s tribal areas in February. The first report noted that the strikes may have been conducted not by the United States, but by Pakistan itself. If that’s true, Walsh notes, then Pakistan finds itself in the fortunate . . .
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Does the White Paper Take a New Approach to the Geography of Conflict?

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Thursday, February 7, 2013 at 8:55 AM

Amid the flurry of writing about the White Paper’s approach to “imminence” – an important conversation, to be sure – little attention has been paid to a paragraph in the White Paper that seems to establish new parameters for the geographic scope of the U.S. conflict with al Qaeda (AQ). The White Paper states that . . .
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Peter Margulies on Boundaries of the Battlefield

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Friday, January 18, 2013 at 7:25 AM

Peter Margulies of Roger Williams School of Law writes in from The Hague with the following account of the Boundaries of the Battlefield symposium he has been attending there: Although some members of Congress speak of criminal justice as a relic of a “September 10” mentality, Europe has never subscribed to that view. European officials . . .
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