Though I’m as much caught up in the drones debate du jour as anyone here at OJ, there are other pressing matters internationally, and one of them is olive oil.  I’ve blogged about EVOO adulteration in the past year, but the current contretemps is different.  EU regulators want to require that restaurants serve olive oil at the table in sealed individual servings (I guess a little bit like the little sealed catsup bottles one sometimes sees in restaurants in the USA) rather than the common practice of serving olive oil, for dipping bread or what-have-you, in little decanters.  The concern is partly health and food safety, but it also appears to be a press by agricultural interests to force the use of labeled olive oil, which will presumably have the effect of pushing up consumer awareness (yes, if – big if – what’s on the label is true), price (definitely), and quality (maybe, maybe not). So, as reported in the New York Times a few days ago (it appears the rule has been shelved for now):

The measure, which would have required that restaurants serve olive oil in sealed, clearly labeled and nonreusable containers, was meant to guarantee hygiene, according to the European Commission, the union’s executive body, which originally drafted the rules. It said the labeling would ensure the quality and authenticity of olive oils and also offer suppliers an opportunity to promote brand awareness, backers said. And the measure stood to benefit European olive growers, mostly clustered around the Mediterranean, in some of the countries hardest hit by the crisis in the euro zone. Fifteen of the union’s 27 governments supported the rule, including the major producers, Italy, Greece, Spain and Portugal. Portugal has had similar measures in place since 2005. But governments in the non-olive-producing north, including Germany, were opposed. Britain abstained.

The pushback was on classic EU terms, I guess we could say: Complaints that this sort of thing should never reach the level of the EU, and that individual states could deal with this kind of thing on their own:

The reaction was severe. Prime Minister Mark Rutte of the Netherlands condemned the measure, calling it “too bizarre for words” and not at all green. Criticism was particularly harsh in Britain, often the first among critics of the European Union’s reach. The olive oil rule was “exactly the sort of area that the European Union needs to get right out of, in my view,” Prime Minister David Cameron of Britain said Wednesday after a meeting of the bloc’s leaders in Brussels. “It shouldn’t even be on the table,” he said, immediately begging forgiveness for the wordplay.

Food safety is only partly the issue; from the standpoint of Europe’s olive oil producers, the much bigger issue is brand recognition and quality assurance – assuring quality and authenticity of olive oils served, which is also to say, raising the price.  But here the EU runs into a quite different problem; restaurants refilling olive oil bottles with oils of lesser quality is the least of the concerns about EVOO authenticity and quality.  I’ve blogged in the past about the surprising (at least to me as an international business transactions professor) fact of massive adulteration of “extra virgin olive oil” both inside the EU and in the global export market.  It’s adulterated with either lower grade olive oil, or else the oil itself is mostly low grade olive oil heated to take out the bad flavors (heated oil is essentially flavorless), or else different plant oils altogether (such as cottonseed oil.  It overwhelmingly happens at the producer, wholesaler, or distributor level, before it leaves the EU; it’s pretty clear that the supermarkets, even specialty store chains such as Whole Foods, whether in the US or Europe, have no idea that the product is not what it says.  

Moreover, the scale of adulteration is massive – some of the estimates from EU officials put it well over 50%, and almost certainly higher for the large scale exporters.  The result is that the supposedly Italian, Spanish, or Greek EVOO one would buy on the supermarket shelf in either the US or the EU is not likely to be the stuff promised on the bottle.  Indeed, it is not likely to be that even within Italy.  The biggest problem is that the bottle of supposedly authentic EVOO with the special seal of approval is as likely or more to be inaccurate or fraudulent, so that even if the restaurant uses only bottles with the special EVOO mark on them, the oil is likely as not to be adulterated, far back in the supply chain.

I said I’m surprised by, first, fraud in this product in the EU and second, the sheer scale of it as reported – because I would have thought that olive oil is a signature EU product and that it would be treated far more like wine, with serious quality control, marketing accuracy, and frankly little or no basic fraud in the product’s authenticity or labeling itself.  There are indications that the problem has been noticed in the EU, certainly, but to summarize the European press, although producers in Italy, Spain, and Greece are now sometimes putting information on their packages indicating from a certain region or certain grove, in the case of large scale production and export, the adulteration can take place anywhere along the production and distribution chain. The evidence suggests that while the problem is more widely discussed than before, little has been done to ensure quality control.  But that quality control lies back in the products that the same producers and exporters who are looking to require sealed, labeled bottles are themselves putting out to the public. There’s no particularly good reason to believe that the products that would come sealed to your restaurant table under the EU rule would in fact pure EVOO; quite the other way around.

My own consumer response (speaking as someone who does olive oil tastings and takes his olive pretty darn seriously and who believes that Those Who Adulterate EVOO Should Be … (let’s see) Publicly Flogged (yes, I’ve been watching Game of Thrones)) has been to address the failure of trust in international trade in goods by cutting the length of my personal global supply chain.  I buy olive oils almost exclusively today from California producers that I trust, using the EVOO seals of approval from trade groups there that haven’t had the problems of European producers.

It is quite true that Italy and other European farmers still produce likely the world’s greatest oils, considered across many seasons – but those producers are tiny, artesanal and it is very difficult to get ahold of their oils in the ordinary course of trade – i.e., without actually going to the olive oil grove.  Quality stuff that can be trusted does not just come from California, of course – Chile, South Africa, Australia, and New Zealand, among others, have been producing superior olive oils and, interestingly for global commerce, have been looking to take advantage of niche-market, up-market distrust of European marketing claims by developing labels and EVOO grading industry organizations that are gradually becoming trusted in global high-end market olive oil trade.  (I.e., Professor Anderson trusts their labeling, will buy them and taste them against California oils.)  Trust, especially in high end, upmarket products in international trade, can not infrequently be monetized.

This week on Opinio Juris, drone strikes unsurprisingly took center stage. In anticipation of President Obama’s speech, Jonathan Horowitz contributed a guest post on their human rights impact and Ken pointed to his new essay arguing the case for drone strikes. Deborah linked to the transcript of the speech here, and pointed to two things she liked about it. Deborah also discussed the White House Fact Sheet on Use of Force Procedures, and summed it all up with a post on what the newly released documents on targeted killing tell us compared to the leaked DOJ White Paper a few months ago. Kevin considered the requirement of “near certainty” of no civilian casualties a blatant lie that made him distrustful of all claims made in the speech.  He followed this up with a post outlining two problems with the “near certainty” standard and another arguing that the standards for the use of force in the fact sheet are a retreat from IHL. In a guest post Michael W. Lewis argued that Obama got it right. 

In other posts, Kevin posted a must-see link to a report visualizing international criminal justice and recommended an article by one of his students on the Kapo trials. 

We also revisited our discussion of Samantar, with Ingrid Wuerth’s guest post on foreign official immunity, and of the Philippines-China UNCLOS arbitration, with a post by Julian who wasn’t convinced by Professor Stefan Talmon’s argument that all of the Philippines’ claims against China fall outside of the tribunal’s jurisdiction. Julian also asked whether we should care about the upcoming hearings by the US Senate Foreign Relations Committee on ratification of the Convention on the Rights of Persons with Disabilities.

Speaking of international conventions, Duncan got inspired by Jennifer Lawrence to draft a petition to the White House to ratify the VCLTIO.

Finally, as always we provided you with a list of events and announcements and with weekday news wraps.

Many thanks to our guest contributors and have a nice weekend!

In previous posts (here and here), I discussed the reasons why Obama will never actually enforce the “near certainty” standard regarding civilian casualties and noted that the standard is vastly more restrictive than IHL’s principle of proportionality. In this post, I want to explain why the new targeting standards for the use of lethal force “outside the United States and areas of active hostilities” represent a complete retreat from IHL in general. As I discuss in my article on signature strikes, the US has always insisted that its drone strikes are governed by IHL, not by IHRL, because – to quote John Brennan — “[a]s a matter of international law, the United States is in an armed conflict with al-Qaida, the Taliban, and associated forces.” Yet almost none of the requirements articulated in the fact sheet the US released regarding Obama’s speech have any basis whatsoever in IHL. Here are those requirements:

[1] A target that poses a continuing, imminent threat to U.S. persons;

[2] Near certainty that the terrorist target is present;

[3] Near certainty that non-combatants will not be injured or killed;

[4] An assessment that capture is not feasible at the time of the operation;

[5] An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and

[6] An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.

Requirement 1 could perhaps be reconciled with IHL’s concept of membership in an organized armed group, which requires the individual to assume a continuous combat function therein, as long as we assume that anyone who qualifies as a member poses “a continuing, imminent threat” of violence. But it cannot be reconciled with the idea of direct participation in hostilities; almost by definition, a civilian who DPHs does not pose a “continuing, imminent threat.” Moreover, nothing in IHL requires a fighter in a non-international armed conflict to pose a threat to the United States; has Obama now abjured the right of the US to act on behalf of other states fighting terrorism, at least outside of the “active zone of hostilities”?

Requirement 2 echoes IHL’s presumption of civilian status and requirement (in Art. 57(2) of AP I) that “[t]hose who plan or decide upon an attack shall… [d]o everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects.” But Requirement 2 (“near certainty that the terrorist target is present”) seems to articulate a standard that is singificantly more restrictive than IHL, even accepting that the quantum of evidence IHL requires to rebut the presumption of civilian status is unsettled. Israel and New Zealand, for example, believe that IHL prohibits an attack only if there is ”substantial doubt” or “significant doubt,” respectively, about the status of the target. Even the ICRC appears to adopt a less restrictive standard, insisting that an attacker must presume civilian status even in cases of “slight doubt.” (Although perhaps “near certainty” and “slight doubt” are two sides of the same coin.)

Requirement 3 was addressed in my previous post. Suffice it to say that nothing in IHL requires an attacker to be “near certain” that no civilian will be killed in an attack that satisfies the principle of distinction.

Requirement 4 echoes Ryan Goodman’s argument in his excellent article “The Power to Kill or Capture Enemy Combatants.” I do not want to rehash whether his understanding of the duty to capture is lex ferenda or lex lata; you can find my view here. Suffice it to say that few if any militaries would accept that there is a general duty in IHL to capture instead of kill legitimate targets.

Requirement 5 is not particularly relevant to IHL; indeed, it blurs the distinction between the jus ad bellum and the jus in bello, an issue I will return to below.

Requirement 6 is no less problematic from an IHL standpoint than Requirement 4. Reasonable alternatives may be relevant to a proportionality analysis, but it is black-letter IHL that lethal force may be used against a lawful target anywhere at any time.

As I said, the new requirements for the use of lethal force represent a complete retreat from IHL. The question is, why? My best guess is that the requirements were very much written with an eye to the near-to-middle future, in which the US will be increasingly unable to maintain the fiction that it is involved in a single armed conflict “with al-Qaida, the Taliban, and associated forces.” Differently put, the US seems to be anticipating a time in which it will no longer be able to argue that the US may use lethal force outside of areas of active hostilities on the ground of either  self-defense or IHL, but will be able to invoke only self-defense.

I think that’s a mistake, for two reasons. First, although it may make sense to abandon IHL with regard to the US’s supposed armed conflict with ”with al-Qaida, the Taliban, and associated forces,” it is very likely that the US will eventually find itself involved in other non-international armed conflicts in which lawful targets are located outside of “areas of active hostilities.” So I do not understand why the US would want to embrace an aspatial view of IHL and targeting standards vastly more restrictive than those embraced by IHL, even if — it’s unclear from the fact sheet — its new understanding of the use of lethal force applies only to the current conflict.

Second, although I don’t imagine that the US much cares, the jus ad bellum-like targeting standards announced in the fact sheet do not necessarily satisfy the limitations on lethal force imposed by international human rights law. As I have pointed out ad nauseum on the blog (see here for an example), whether an extraterritorial use of force is legitimate under the jus ad bellum says nothing about whether the targeted killing legitimately deprives the target of his or her right to life. It is possible, of course, that the substantive requirements of the jus ad bellum and IHRL are the same, in which case eliding the distinction between the two has no practical effect. But it is also possible, perhaps even likely, that necessity and proportionality mean different things under the jus ad bellum than they do under IHRL — in which case a legitimate act of self-defense could still violate IHRL. Indeed, although it is a subject for another post, I think that the US’s deliberate push to relax jus ad bellum imminence beyond the traditional Caroline test — what Mike Lewis has nicely called “elongated imminence” — indicates that the US view of when lethal force may be used under the jus ad bellum is significantly broader than the consensus view of when lethal force may be used under IHRL. As a result, I fail to see why the US would want to essentially give up IHL as providing an independent justification for the use of lethal force against individuals who, despite being located ”outside the United States and areas of active hostilities,” are clearly participating in a non-international armed conflict.

It’s all very strange. I would have loved to be the proverbial fly on the wall when the White House was explaining the fact sheet’s requirements to the military…

There is now a set of important new documents regarding its targeted killing operations: (1) a letter from U.S. Attorney General Eric Holder to members of Congress describing the decision to target U.S. citizen Anwar al-Aulaqi; (2) a “fact sheet” on procedures for the use of force outside areas of “active hostilities”; and (3) the transcript from the President’s speech to the National Defense University. What can we glean from them about the legality of U.S. drone operations, as opposed to what we learned from the leaked DOJ White Paper some months back? I’m still sorting it out, but for now, here’s one: Whether or not you believe the United States is in a legally recognizable transnational non-international armed conflict with Al Qaeda – a view the United States embraces but the ICRC and most U.S. allies reject – the standards announced in these documents appear intended to keep U.S. targeting operations in line with the international law of self defense.

Yesterday, the President reiterated his view (embraced by Congress and the D.C. Circuit) that the United States is at war with Al Qaeda. As a matter of domestic authority, then, it’s clear he thinks the AUMF suffices to authorize the drone operations he described. But this armed conflict theory has never been widely embraced internationally, and it is in part this disconnect between the United States and the rest of the world that has fueled the criticism of U.S. drone operations internationally. So let’s pretend for a minute the armed conflict theory doesn’t exist.

Under Article 51 of the UN Charter, states have an inherent right to respond to “armed attacks” in self defense. Many states also recognize at least some limited customary right post-UN Charter of anticipatory self-defense – that is, a right to strike before the enemy begins its attack. This notion was captured by the Caroline letter’s statement requiring for such force “the necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” Either way, whether force is in response to an armed attack or in anticipation of an imminent one, if a state undertakes such action, its response must be, among other things, necessary, proportional, and timely. Of central importance here, establishing “necessity” traditionally requires a finding that no alternative response (short of force) would suffice to reasonably address the threat.

Now hold this summary up against yesterday’s fact sheet. The fact sheet provides that outside an area of “active hostilities” (such as, I take it, the current Afghan theater, broadly recognized as the site of a non-international armed conflict), the United States will use lethal force “only to prevent or stop attacks against U.S. persons,” only against a target that “poses a continuing, imminent threat to U.S. persons,” and only when “no other reasonable alternatives exist to effectively address the threat to U.S. persons.” The fact sheet imposes a lot of other conditions as well, but for present purposes, these are most important. So are these rules consistent with international law standards of “necessity” and “imminence”? Take “necessity” first, which here seems to me nearly identical to the standard as I learned it under international law. True, the fact sheet also mentions the far more controversial notion that the United States can strike when the host state is “unwilling or unable” to act, but that requirement comes in addition to, not instead of, the “no other reasonable alternatives” requirement.

On imminence, it is still not entirely clear, but there are several reasons why the fact sheet version of the test is more reassuring than the previously leaked DOJ White Paper’s version (which, unhelpfully, addressed the concept of imminence only in the context of its U.S. constitutional due process analysis). For one thing, the White Paper repeatedly insisted it was addressing only a single case in which lethal targeting would be permissible, refusing to exclude the possibility that targeting could also be permissible in a host of lesser circumstances. The fact sheet is admittedly a statement of “policy standards and procedures” and not of law, but it is categorical in ways the White Paper was not, providing that the United States will “only” use force in the circumstances listed. Also in contrast to the White Paper, the fact sheet carries the following statement with respect to its requirement that there be a “continuing, imminent” threat: “It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons.” That’s helpful, and more than the White Paper said, but of course only narrows the field so much. It’s good that the administration thinks such a threat is not posed by “all terrorists,” but does the administration put, for example, all Al Qaeda-member terrorists in this category? That would seem substantially overbroad.

Then there’s the difference only a lawyer could love, between the White Paper’s description that the target be “continually planning attacks,” and the fact sheet’s requirement that the target pose “a continuing, imminent threat” to U.S. persons. I’d like to read the latter to be narrower than the former. Here’s why. Someone who is “continually planning attacks” could easily be, rather like Wile E. Coyote, always thinking up schemes, even if many of those schemes are very far from coming to fruition, or might never come close. The White Paper defined an “imminent threat” as an operational leader of Al Qaeda or an associated force who was “continually planning attacks,” however close those attacks were to realization; in other words, it seemed to equate “imminence” with “continual planning.” That can’t be right; it’s certainly not what the Caroline suggests or any reasonable interpretation of what “imminence” means. The fact sheet doesn’t actually define what it means by “imminence” – which is why things remain unclear – but unless the authors were being willfully redundant, the requirement of a “continuing, imminent threat” implies a requirement that the threat itself be both continuing and imminent, and that those words carry separate meaning. That would be an improvement. Even without telling us more about what it means by “imminent,” the administration could do some work to clarify simply by indicating these standards replace the White Paper or other previous guidance.

Finally, there’s this from the President’s speech on his vision of the future of counterterrorism: “We must define our effort not as a boundless ‘global war on terror’ – but rather as a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America….” When President Clinton used cruise missiles to strike suspected Al Qaeda training camps two weeks after the attacks on the U.S. embassies in Kenya and Tanzania in 1998, it was UN Charter article 51 authority on which he relied; the U.S. strikes in that instance were met with vigorous support by both parties in Congress, the American public, and U.S. allies in Europe and elsewhere. President Obama referenced the U.S. response to those attacks and others in his speech as a model to which we may look to return. If that is indeed the model, then it is one consistent with international law of self-defense.

There’s lots of serious international and national security talk to be had today following yesterday’s NDU address by President Obama.  But, as part of my continuing quest to track international law in popular culture, I offer readers a bit of Friday afternoon levity:

9 Photos of Jennifer Lawrence that will make you Reassess the Scope of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations.

No, I did not make up that title.  The Onion did via an author(s) who clearly knows far too much about the law of treaties.  After all, a neophyte might poke fun at the paradox of Article 6′s assertion of general treaty-making authority for IO’s in a treaty.  But not the Onion.  They tackle larger issues such as was “the ILC’s decision to model the VCLTIO provisions as closely as possible on the structure and terminology of its mother treaty really wise, considering the vastly different characteristics of international organizations?”

Truly inspired.  And although one could take offense at the juxtaposition of photographs of a famous female actress with descriptions of international law, I’d think the Onion could have posted 9 photographs of anything from naval vessels to Frank Lloyd Wright homes and captions like this one would still be funny:

Hold on just a sec here. She’s beautiful, witty, down-to-earth, AND she reminds you that the Conference was unable to resolve the question of the rights and/or obligations that might arise for states’ members of an international organization from a treaty to which that organization is a party? Is this girl actually real?

In any case, I’m now drafting a petition to the White House urging President Obama to support quick Senate action on the VCLTIO, and maybe, just maybe, they’ll take a look at the little treaty that preceded it — the 1969 VCLT.

P.S.  I really hope whoever authored this got high marks on their international law exam — or at least now appreciates how such knowledge can come in handy in the unlikeliest of scenarios.

A couple of people have suggested to me that I should be celebrating Obama’s adoption of the “near certainty” standard, because it is more protective of civilians than the principle of proportionality. I will not celebrate the standard, for two very simple reasons. First, I don’t believe for a moment that Obama will actually enforce it, no matter how pure his intentions. If you disagree, consider the following hypothetical (and obviously counterfactual) scenario:

The CIA learns through drone surveillance and a human informant that Osama bin Laden is having dinner with one of his wives inside his Abbottabad compound. It asks Obama to authorize a drone strike on bin Laden. Obama declines, because there is not “near-certainty that no civilian will be killed or injured in the attack.” On the contrary, there is absolute certainty that a civilian will be killed.

If you believe that Obama would decline to act in this hypothetical situation, I have a lovely bridge to sell you. But that is precisely what the “near certainty” standard would require.

Second, and perhaps more importantly, Obama should not enforce the standard, because it is fundamentally inconsistent with his obligation — with any President’s obligation — to protect the US. However skeptical of American power we may be, we have to acknowledge that there are, in fact, times when it is important for a President to use lethal force even though he or she knows innocent civilians will die in the process. The bin Laden hypothetical is one example; another is a situation in which a suicide bomber uses a small child as a human shield while approaching his target. Would we really want a President to refuse to kill the suicide bomber because he or she knows with absolute certainty that the child will die in the attack? The principle of proportionality, for all its subjectivity, exists for a reason: because no matter how attractive objective standards like “near certainty” may seem, anticipated civilian damage does, in fact, have to be balanced against the military advantage of an attack. The loss of innocent civilian life, though regrettable, is not always unjustified.

Note: I have restructured the post for clarity.

There is a classic jury instruction that reads, “[a] witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” I immediately thought of that instruction when I read Obama’s national-security speech today, because it contains such a blatant lie that it is impossible to take anything else that Obama said seriously:

And before any strike is taken, there must be near-certainty that no civilians will be killed or injured — the highest standard we can set.

The United States, of course, has used drones to attack wedding parties. And funerals. And rescuers. And densely populated villages. Yet Obama has the temerity to claim that the US does not launch attacks unless there is “near certainty” that no civilians will be harmed. Has there been a bigger — and more obvious — lie since John Brennan’s risible claim in 2011 that drone strikes had not caused “a single collateral death”?

What is most perverse about Obama’s purported requirement is that, from a legal standpoint, it is completely unnecessary. International humanitarian law does not demand perfection; it demands proportionality. Innocent civilians die in legitimate military attacks. They always have, and they always will — no matter how “precise” weapons like drones become. Every military commander in every country in the world accepts that basic fact of warfare. But not Obama, winner of the Nobel Peace Prize. He cannot bring himself to acknowledge that the US is — like every other country — willing to launch attacks that are likely to kill innocent civilians when it believes the targets are important enough. He would rather pretend, in public and seemingly without shame, that the US is more virtuous and has cleaner hands than everyone else, friend and foe alike. Never mind that if the US took his targeting standard seriously, its drone fleet would be gathering dust in a hangar somewhere.

Obama gives a good speech. But, as the jury instruction goes, “[a] witness who is willfully false in one material part of his or her testimony is to be distrusted in others.” I think it is safe to say that we should be deeply distrustful of all the claims Obama made in his speech today, not just the wilfully false one. We simply cannot count on him to tell us the truth about the US’s national-security policy.

Far too much to say for one blog post, so I’ll start with two things I liked about the speech. First, bravo on the President for giving it. Would that he had done it years ago. Indeed, having heard it, it is even more of a puzzle why it took as long as it did. Still, he undoubtedly helped himself with Congress and the public in defending his use-of-force policies, and the debate moving forward will be, at the least, somewhat better informed. Second, big picture strategy. Obama urged the need for a comprehensive counter-terrorism strategy going forward, returning repeatedly to the idea that the U.S. war with “Al Qaeda, the Taliban, and associated forces” must end. Some examples from the speech strung together:

“From the Civil War, to our struggle against fascism, and through the long, twilight struggle of the Cold War, battlefields have changed, and technology has evolved. But our commitment to Constitutional principles has weathered every war, and every war has come to an end…. We must define the nature and scope of this struggle, or else it will define us, mindful of James Madison’s warning that “No nation could preserve its freedom in the midst of continual warfare.” …. [T]he use of force must be seen as part of a larger discussion about a comprehensive counter-terrorism strategy. Because for all the focus on the use of force, force alone cannot make us safe. We cannot use force everywhere that a radical ideology takes root; and in the absence of a strategy that reduces the well-spring of extremism, a perpetual war – through drones or Special Forces or troop deployments – will prove self-defeating, and alter our country in troubling ways…. All these issues remind us that the choices we make about war can impact – in sometimes unintended ways – the openness and freedom on which our way of life depends. And that is why I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorists without keeping America on a perpetual war-time footing….”

This view is important, strategically sound (the world can make terrorists faster than America can kill them), and consistent with U.S. and international law understandings that there is and should be a legal dividing line between law at war, and law at peace. It signals the recognition of an end game, of the need to address terrorism not as a war-emergency but as a chronic disease, potentially fatal if not managed appropriately. Especially critical among the statements of strategy in light of the series of recent hearings in Congress on the need for a revised AUMF was the President’s announced refusal to expand it:

The AUMF is now nearly twelve years old. The Afghan War is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That’s what history advises. That’s what our democracy demands.

The speech leaves unclear who, other than AQAP, the Administration thinks counts as an “associated force” of Al Qaeda, so it is likewise unclear how much it matters the President’s commitment not to expand the authority further. By including AQAP under the AUMF blanket, the administration already reads its AUMF use of force authority to extend to a group that did not exist in 2001 and that itself played no role in the attacks of 9/11. Nonetheless, it was somewhat reassuring to hear the President reject an interpretation of the law that would have it extend automatically to any group calling itself Al Qaeda. And his commitment not to sign an expanded AUMF suggests he will not be proceeding simply by adding the names of new terrorist groups to the list the AUMF already covers (namely Al Qaeda, the Taliban and “associated forces”), or by removing the statutory link to the attacks of 9/11 the AUMF currently requires, or by delinking AUMF authority from the requirement (recognized by the Supreme Court) that the statute be informed by the international law of armed conflict. And in principle at least, as the President implicitly recognized, the end of the AUMF war brings legal consequences. As he put it, “we bring law of war detention to an end.”

In the meantime, even in the President’s terms, there is at the very least more than a year between now and anything like the beginning of an end (when combat troops leave Afghanistan). Look forward to a summer of ongoing conversations with Congress and the public about who we can target under the AUMF, and what process they’re due.

Another must-read today from the White House, a one-pager titled “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.” Here’s the link.

From the introduction:

[T]he President has approved, and senior members of the Executive Branch have briefed to the Congress, written policy standards and procedures that formalize and strengthen the Administration’s rigorous process for reviewing and approving operations to capture or employ lethal force against terrorist targets outside the United States and outside areas of active hostilities. Additionally, the President has decided to share, in this document, certain key elements of these standards and procedures with the American people so that they can make informed judgments and hold the Executive Branch accountable. This document provides information regarding counterterrorism policy standards and procedures that are either already in place or will be transitioned into place over time. As Administration officials have stated publicly on numerous occasions, we are continually working to refine, clarify, and strengthen our standards and processes for using force to keep the nation safe from the terrorist threat.

On very quick read, here’s the part I think matters most:

[L]ethal force will be used outside areas of active hostilities only when the following preconditions are met: First, there must be a legal basis for using lethal force… Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons. It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force. Third, the following criteria must be met before lethal action may be taken:
1. Near certainty that the terrorist target is present;
2. Near certainty that non-combatants[1] will not be injured or killed;
3. An assessment that capture is not feasible at the time of the operation;
4. An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and
5. An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.

An hour long as delivered, and full of substantive content. Transcript is here.

I want to call readers’ attention to a new — and very original — article written by one of my best Melbourne students, Ilana Singer, which has just been published in Criminal Law Forum. Here is the abstract of the article, which is rather wordily entitled “Reductio Ad Absurdum: The Kapo Trial Judgements’ Contribution to International Criminal Law Jurisprudence and Customary International Law”:

Several Jewish persons designated as concentration camp guards (Kapos) during the Holocaust were subsequently tried in Israel in the 1950s and 1960s for allegedly committing grave crimes. This article examines these trial judgements and considers their significance to international criminal law jurisprudence and customary international law. First, this article will delineate the trial judgements’ purpose, relevance and previous contribution to customary international law. Secondly, a comparative narrative of the judgements with recent case law from the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court will illuminate their potential contribution, specifically to the principles of modes of liability, criminal intent, and the defence of duress. The Kapo trial judgements may therefore continue to offer an extreme case example and a worthy source of common law for international criminal law jurisprudence and customary international law.

The article makes an important contribution to the regrettably scarce literature on the Kapo trials. Anyone interested in the Holocaust, the trials themselves, or war-crimes trials in general should check it out. The final draft of the article is available on SSRN here, and the article itself is available here.

• Ahead of Barack Obama’s speech on national security today, in a letter to Senator Patrick Leahy, US Attorney General Eric Holder admitted that the United States has killed four American citizens with drone strikes in Yemen and Pakistan.
• The British House of Commons has passed legislation for same-sex marriage; now the bill goes to the House of Lords for a vote.
• The UN and World Bank chiefs are visiting the Democratic Republic of Congo in a push for peace and development amid fighting in the country’s east causing many to flee.
• A British soldier was hacked to death with a meat cleaver by two men in London in an apparent Islamist terrorist attack, stating that the soldier’s death was “an eye for an eye, a tooth for a tooth.”
• IMF Chief Christine Lagarde is in court in France today to be questioned about a €285 million ($366 million) arbitration payout to a supporter of Nicolas Sarkozy.

Noticing President Obama’s big speech tomorrow at the National Defense University on US counterterrorism policy, Commentary Magazine has decided to release today my new essay, “The Case for Drones.”  It will appear in the print journal in June, but has been posted with a free, open link on the website now.

A couple of caveats for OJ readers, if you’re inclined to read it (close relatives of mine have declined on grounds they’ve heard me on this too much already).  Commentary is a conservative magazine, and this is an argument for drones written with a particular audience in mind – conservative readers and Republican members of Congress in particular.  It’s an argument about effectiveness and ethics, not law as such; it’s an overtly politically conservative version of the much more centrist, principled, and neutral argument that, for example, Ben Wittes and I sought to make in the Oxford Union debate.  I hope that some folks still might find it useful as a thumbnail sketch in non-technical form of some of the leading arguments, objections, and replies in this debate.

By political here, I mean both conservative, but also strategic – it’s arguing to Congressional Republicans that they ought to be supporting the President in his basic drone policies, if for no other reason than that there might be a Republican president someday, and he or she ought to have the same national security tools available that the current president has.  Though I do agree with Harold Koh, Jeh Johnson, and other Obama former officials that there is room to “discipline” drones – the problem is to discipline their use and processes into something that has a sturdy and permanent legislatively blessed structure on a lot of fronts.  That’s political in the sense that it deliberately seeks to appeal to Republican self-interest as a matter of politics and strategic play.

The less political and strategic, more principled and neutral, version says that the President and Congress ought to be seeking something that Ben Wittes and I call “institutional settlement” – borrowing the term from other fields – in which the center right and center left undertake legislative reforms to process, accountability, oversight, secrecy, and other matters in order to leave the next president with something that is, in an important way, simultaneously less than pure executive discretion, but also more than it.  What’s given up in discretion is given back with the greater legitimacy and stability that comes from a centrist blessing by the Congress.  Ben Wittes and I put this notion of institutional settlement at the center of our new book, Speaking the Law: The Obama Administration’s Addresses on National Security Law.  The book is being brought out serially online and then will be published as a hardback by Hoover Institution Press.  We’ve just released Chapter 2.  (We are somewhat torn, though; our public spirit hopes that some important things will change with the President’s speech, while our narrow self-interest hopes we won’t have to rewrite bunches of things.)

OJ is an international law blog with an international and international law readership.  I realize that for many of you, the idea that any of the stuff in either the Commentary article or the Anderson-Wittes book represents the “center” must seem strange, even perverse.  There are probably few areas in the law where there is such a problem of parties talking past one another, ships passing in the night.  I don’t know that it can be avoided, however; parties begin from very different starting points on many, many different fundamental matters, so different that there’s not really room for argument.

That’s a problem even where everyone admits the differences of starting points and the difficulties of finding points of engagement to debate.  It gets even worse where different positions can start out in the same language – but intend entirely different things by it.  So, for example, if you are the ACLU or a UN Special Rapporteur or someone coming from the position that this is just all substantively bad stuff, you might very well use the language of “reform” the drone program or “discipline” drones or something.  But your understanding of that is going to be very different from, say, the position in Speaking the Law; quite possibly, your understanding of reform functionally might all but eliminate the practice.  Which might perhaps be the right legal or ethical or practical approach – but that same language, as Ben and I use it, or as I rather imagine President Obama’s speech will use it, means instead, cabin it with more process, but fundamentally do so in order to make it permanent, not eliminate it. I don’t know that there’s much way to bridge that kind of fundamental gap between those in the debate.

Last December, the U.S. Senate failed to give consent to U.S. ratification of the Convention on the Rights of Persons with Disabilities (CRPD).  Since the election hasn’t really changed the composition of the Senate all that much, I kind of thought this treaty was dead, or at least dormant, for a while here in the U.S.  Maybe not!

Groups opposed to US ratification of the CRPD are saying that the Senate Foreign Relations Committee will hold hearings on June 4 to discuss ratification of the treaty.  And the critics are ready. In the latest critique, Iain Murray and Geoffrey McClatchey argue that the CRPD really does go beyond what U.S. law requires under the American with Disabilities Act by suggesting all entities must give all individuals accommodations, whereas the ADA has a number of important exemptions.  I am not sure about this, and it seems like a fairly technical matter that could be interpreted narrowly or broadly. Since the CRPD would be non-self-executing, I am not sure this would be a huge problem for Congress, which could easily say that the ADA is enough to comply with the CRPD.

More problematically, the senators who offered their opposition last summer in the SFRC committee hearings are deeply troubled by the refusal of the Obama Administration to clarify that the language requiring equal treatment in the provision of “health care” for “sexual and reproductive health” in the CRPD’s Article 25 does not include abortion services. Again, I think the practical impact is fairly small, but I don’t fault senators who are pledged to oppose expansion of abortion services to be worried about this.  Senator Marco Rubio’s proposed “declaration” to attach to advice and consent would seem to solve this.

The United States understands that the phrase “sexual and reproductive health” in Article 25(a) of the Convention does not include abortion, and its use in that Article does not create any abortion rights, cannot be interpreted to constitute support, endorsement, or promotion of abortion, and in no way suggests that abortion should be promoted as a method of family planning.

I don’t see this is a big deal, but if it would remove one obstacle to ratification and get the necessary votes, I don’t see why CRPD proponents wouldn’t just agree to take this language on.

Overall, I do think critics of the CRPD are overstating the likelihood that the treaty will have a meaningful impact on U.S. law and policy.  There could be an impact, but the institutional protection is that any changes required by the CRPD will have to clear Congress in the form of another statute. This is a non-trivial institutional protection.  Sure, the Disabilities Committee will probably crank out some interpretations of the CRPD that the U.S. Congress will disagree with, but the chances of those interpretations seriously affecting U.S. law seem fairly small.

On the flip side, I also think the proponents of the CRPD are exaggerating its benefits.  It may have some small impact on the practice of foreign countries, but there is little evidence it would lead to wholesale changes in other countries either.

As I have argued before, the potential problems in this treaty are just not serious enough for me to get worked up about it.  On the other hand, the benefits are not exactly large enough to get excited about either. Still, the upcoming battle for the CRPD is a proxy for the entire U.S. attitude toward the various U.N. human rights treaties. So it matters, even if this particular treaty is not a big deal.