Tuesday, July 14, 2009

The NYT CIA Assassination Story

I see that I'm quoted by Mark Mazetti and Scott Shane in their New York Times article today, CIA Had Plan to Assassinate Qaeda Leaders (July 13, 2009). I'm trying hard to maintain radio silence and not blog to let my shoulder heal up, but let me say something very brief about this. Also, I only post occasionally here - mostly I post these days at Volokh Conspiracy and Opinio Juris and CTLab.

First, I'm delighted, of course, that the CIA post 9-11 was formulating plans to try and kill Al Qaeda leaders wherever they might be; if they weren't, I would certainly have a big question about what exactly the CIA value-added to national security is. Why would you have a CIA if they weren't trying to figure out covert ops to kill Al Qaeda leaders after 9-11? As for the distinction between inserting small teams or using Predators, recall that the US only began using Predators as a weapons platform in a semi-improvised way after 9-11. The obvious tactic was small team insertion, and only when it became clear that Predators could work, did the US move to that strategy.

Second, as to the international law issues involved in targeting Al Qaeda leaders, I will simply refer you over to a new paper, soon to appear as a book chapter in a volume edited by Benjamin Wittes on reforming counterterrorism policy, on targeted killing. That paper has a particular point, however. It says that of course the US targeted killings of Al Qaeda terrorists is a legal act of self defense under international law. (You can get a free pdf download, here, at SSRN, "Targeted Killing in US Counterterrorism and Law.")

The longer term question to which the paper mostly addresses itself is whether, in the face of withering international legal criticism, from UN special rapporteurs, human rights groups, academics, etc. - what we might call the international "soft law" crowd - the US, and specifically the Obama administration, will insist on the traditional doctrines of self defense, including against terrorists who find safe haven in states that are unwilling or unable to deal with them. The problem specifically for the Obama administration is that on the one hand it has - correctly in my view, for strategic, legal, and humanitarian reasons - embraced targeted killings via Predator strikes.

On the other hand, a lot of the administration's international legal apparatus is highly sympathetic to the "soft law" position, and in other circumstances would like to embrace positions that, however noble in the abstract, would effectively rule out targeted killing as the US pursues them. And particularly rule them out in future situations in which Al Qaeda is not involved, in which there is no AUMF, no Security Council resolutions, etc., to point to. It is important for the administration to keep in mind that the US will eventually face different terrorist enemies - there is, so to speak, life - and death - after Al Qaeda.

The paper is concerned with defending the US legal space for targeted killing undertaken as self defense, but not within the context of an armed conflict as defined under international humanitarian law. If that seems like a mouthful, I'll just refer you to the paper.

Finally, the US domestic law question of assassination. The title of the article uses the word assassination. This is unfortunate, not because it is not accurate in the sense we ordinarily use the term, but because US law and regulation contains a ban on "assassination." Assassination in that specific legal sense is prohibited - but also not defined in US law or regulation. However, successive administrations dating from the 1980s have taken the position - e.g., the speech in 1989 to which the article refers - that a targeted killing is not (prohibited) "assassination" if it meets the requirements for self-defense under international law, including self defense against terrorists. As then-Dept of State legal advisor Abraham Sofaer put it, the assassination ban does not apply to otherwise "lawful killings undertaken in self defense against terrorists." I don't know if this is open access online; it was issued in the Military Law Review in 1989, and Judge Sofaer and others have told me that it was vetted with DOD and the White House as being US policy and interpretations of law. I am not aware of anything that has overturned it as US interpretation of the US assassination ban.

Okay, I'm trying very hard not to blog at the moment and give my should some time to heal, so I am going to post this up and ... Exeunt Left. Or possibly exit right.

Thursday, July 02, 2009

My new EJIL article on the Rise of International Criminal Law

I have a new essay just published yesterday in the European Journal of International Law, titled (if link doesn't work and you still want the piece, email me and I'll send it that way):

The Rise of International Criminal Law: Intended and Unintended Consequences.
(EJIL, Vol. 20, No. 2, pp. 331-358, June 2009.)

EJIL is a subscriber wall Oxford UP journal, but I’m allowed to put up a link to the full text here on my personal website. If you’d like to read it, this link is supposed to work to the full text.


The rise of international criminal law has been one of the remarkable features of international law since 1990. One of the less-explored questions of international criminal law is its social effects, within the international community and the community of public international law, in other parts and activities of international law. In particular, what are the effects of the rise of international criminal law and its emerging system of tribunals on the rest of the laws of armed conflict? What are the effects upon apparently unrelated aspects of humanitarian and human rights law? What are the effects upon other large systems and institutions of public international law, such as the UN and other international organizations? As international criminal law has emerged as a visible face of public international law, has it supplanted or even ‘crowded’ other aspects and institutions of public international law? This brief article offers a high-altitude, high-speed look at the effects of international criminal law on other parts of public international law and organizations.
I want to thank EJIL editor and old friend Joe Weiler for commissioning this essay - and then running it when it turned out to be a somewhat strange piece for EJIL. It draws on my personal experience regarding the early days of the then-proposed ICTY, among other things. It is a fast, impressionistic overview of ways in which the emerging system of tribunals might be thought to “crowd out” other parts of public international law. It ranges really, really widely, as the table of contents shows:

  • Regimes of mutual benefit and regimes of altruism
  • Alternative to intervention?
  • Earning the moral right to administer universal justice
  • Reprisal and reciprocity in the laws of armed conflict
  • The rise of the machines
  • Individual liability and the loss of the laws of war as rules for the social organization of war between groups
  • Does anyone ‘own’ the rules of war anymore?
  • An end-run around the P-5?
  • Neglecting the UN?
Everything from battlefield robots to the P-5 ... no lack of topics here in a short space. Although I think it will drive some readers crazy, and for a good reason - it takes the punchbowl of each topic away just as the party gets going - I do like it, and I think once in a while it is useful to have a high altitude survey that seeks to reveal something about changes to the landscape below. That’s the intent, anyway.