2 Years For 20,000 Lives, 26 Years Later

Unconscionable.

This makes me want to take a second look at Polly Higgins' idea of prosecuting catastrophic corporate negligence at the International Criminal Court.

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The Yoda Doctrine and the War on Terror

The NYT picked up on my BHTV spot with Dan Drezner last weekend, where we discuss whether or not Obama should be assassinating Americans. But they only stuck a small clip of our discussion on that topic at their site, so I've clipped the entire piece for your perusal.



Note that a variety of technical snafus caused the BH folks to edit the video here and there making the context hard to infer at spots (watch out for the part at about 5 minutes in where my face and voice suddenly jump scarily forward at you!). In fact, it seems they edited out the part where I mention the Terrorist Expatriation Act currently being pushed through the Senate by Joe Lieberman, which would render it constitutional to strip Americans of their citizenship for "joining a foreign terrorist organization or engaging in or supporting hostilities against the United States or its allies."

While human rights law would still arguably make it criminal to summarily execute non-citizens, the aim of this legislation is to at least render the constitutional questions moot (would it, actually? I defer to the lawyers who blog here and elsewhere...) until such time, at least, as the Supreme Court renders said law unconstitutional.

In that regard, it's worth noting the Court's (and the current nominee's) past history on precisely these issues, which has been helpfully summarized by Richard Epstein.

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It's Not About the Drones.

Drones were back in the news this past week. First, the UN is poised to publicly criticize the US for allowing CIA operators to conduct lethal attacks with drones, in a report to be released later this week. Then, the US military released a report sharply criticizing operational failures that led to the deaths of 23 civilians in a convoy in February. And Newsweek has a big lead article about the extent to which drone strikes, regardless of their legality or side-effects, are fueling homegrown terror.

I would like to posit that to some extent, the issues at stake in all of these debates are much broader than the issue of drones and it may be problematic to focus on drones, as if altering our "drone policy" will resolve the broader issues. Drones themselves are simply remotely piloted aerial vehicles. They're not robots and they're not making decisions on their own, Star Wars-like. (Though they might in the near future which would raise entirely different ethical questions.) Except for the fact that the pilots are operating remotely from the safety of a military base (or CIA facility), these weapons are little different than other forms of air power. Of course, as Peter Singer has documented there are those who are troubled by the dislocation of the warrior from his targets, but this argument is as old as the long-bow and doesn't necessarily pose legal issues. It should also be pointed out that drones have many extremely useful non-lethal applications: reconnaissance that helps ground troops avoid civilians, for example. And drones are not simply being used to hunt terrorists in Pakistan. They have civilian and law enforcement uses as well: to monitor the drug trade in South America or population flows across borders. (Not that these surveillance functionalities don't also involve pressing trade-offs with respect to rights and civil liberties.)

Speaking just in terms of using drones as attack weapons here, I would argue the important issue here is not whether we use drones. The issues are a) whether it is right to use any weapon in such a manner as to risk more casualties among civilians than we are willing to accept among our own troops (as both manned and unmanned forms of aerial bombing do) b) whether we are willing to use any weapon to summarily execute individuals we have associated with criminal organizations whether or not they are engaged in what might be considered combat operations against us and c) whether it is either right or effective to outsource the deployment of lethal violence - by drones or by other means - from our military to our civilian agencies?

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Outrage at Soldier Who "Water-boarded" His 4-Year-Old Daughter

Chilling. Andrew Sullivan initially reported that the US media was completely ignoring this story, but that's not true now. Quite a number of commentators have expressed outrage at the torture of a child, and the serviceman in question, Joshua Tabor, has been arrested.

It's a horrible way to treat a child. Interesting that this particular incident is being singled out for national attention given the routine violence and abuse that children experience in their homes (to say nothing of schools) in this country. You wouldn't see most child abusers accused of "torturing" their children however, so it's interesting to see how the popular and correct association of water-boarding with torture in a CIA or military context is now leading to accusations that the father has "tortured" his child.

I think this is actually quite a reasonable position to take in a normative sense when referring to a great deal of physical punishment inflicted on minors in this country, but it's worth pointing out that strictly speaking, such acts are not torture in the legal sense, which only occurs at the hands of agents of the state. According to the Convention Against Torture, torture is:

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

The Rome Statute of the International Criminal Court has a rather less limited definition that does not stress the state and refers instead to the infliction of pain on a person "under the control of the accused"; but given that this provision in Article 7 is an addendum to the definition of "crimes against humanity," which is constituted by widespread or systematic attacks on civilians, it's very unlikely that it could be said to apply to a case of family violence.

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International Criminal Court Redux

Later this year, state parties will get together to revisit the Statute for the International Criminal Court. Definitely on the agenda is clarifying the crime of aggression, which was left hanging in 1998 in order to bring discussions to a close. But governments also have the opportunity to add new crimes to the list of those under the court's jurisdiction (as well as suggest procedural changes). So far proposals relating to jurisdiction include:

1) A proposal by Trinidad and Tobago to try drug traffickers at the ICC. (If in 1989 you suggest a court for this specific purpose, and if nine years later states construct that very court while tabling the issue for which you originally suggested it, instead making it a court to try genocidaires and war criminals, try try again.)

2) A proposal by Belgium to extend the list of prohibited conventional weapons. (Roger Clark has an interesting essay on Article 8 in a Special Double Issue of the New Criminal Law Review organized by Opinio Juris' Kevin Jon Heller.)

3) A proposal by the Netherlands to include terrorism in the court's jurisdiction alongside aggression, war crimes, genocide and crimes against humanity. (Unlike the drug trafficking proposal, which actually aims to define the crime, Netherlands only proposes to include the crime of terrorism hypothetically, pending an agreed definition. Smart. Also somewhat meaningless.)

4) A proposal by Mexico to include the use of nuclear weapons under the definition of war crimes. (Good luck with that.)

Apparently no "States Parties" have taken up suggestions that piracy be added to the list of crimes under ICC jurisdiction.

[cross-posted at Current Intelligence]

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