The Use of Force and the Next President

As we wrap up our examination of the use of force and the jus ad bellum regime, you may be interested to read that John Bellinger last week delivered an address at the Supreme Court on "Law and the Use of Force", and he has published parts of his speech in Lawfare here. Is it consistent with what we have been discussing? If not, how so? Please comment below.

Aggression and the Use of Force

As we take up the question of the definition of aggression today, for those interested in reading more about the issue, there is a good article on the subject at EJIL: Talk! on the definition the purposes of the Rome Statute of the ICC, which was decided upon at the international conference at Kampala two years ago. As discussed in the blog post, the new definition and associated "understandings" raise many interesting issues involving treaty interpretation.

The Kampala definition itself is as follows:For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

You may also want to look at the full text of UN General Assembly Resolutions 2626 (Declaration on Friendly Relations), and 3314 (Definition of Aggression), that we will discuss in class and are only excerpted in the text.

Threats to the Life of the Nation

In the Loveless case which we examined last week, which was an early case considering the latitude for states to derogate from rights obligations during times of national emergency, when the life of the nation is threatened, the Court was quite deferential to the state's interests. In thinking about this, you might be interested in looking at how the House of Lords more recently considered the issue of derogation from rights due to threats to the life of the nation, in A(F.C.) v. the Home Secretary [2004].

The case (you can find the full judgment here) involved the "certification" of the applicants under the Anti-Terrorism, Crime and Security Act, 2001, which permitted the government to detain persons so certified for an indefinite period. The government of the U.K. argued that the law constituted a permitted derogation from its obligations under the European Convention on Human Rights.

As part of the decision, Lord Hoffman considered what "the life of the nation" meant in Art. 15 of the Convention, and wrote as follows (continued below the fold):

The Looming Torture Debate

As we began to discuss in class on Monday, there is already increasing discussion in scholarly and policy circles about the status of law and policy on torture. This is driven in part by statements that were made by Donald Trump during the campaign, in which he said that torture works, and that he would bring back water-boarding and much worse (for later statements along the same lines, see here).

It will be recalled that President Obama issued an Executive Order early in his first term prohibiting torture and lesser forms of coercive interrogation techniques, and that prohibition was consolidated in law last year. But there are rising concerns that the next administration may overturn these prohibitions and re-introduce interrogation techniques that constitute torture or cruel inhuman and degrading treatment. See, for example, this article on Lawfare, and this one at The Intercept.

Meanwhile, on Nov. 15 the ICC prosecutor stated that preliminary inquiry indicates that U.S. forces may have committed war crimes, including torture, in Afghanistan, thus signaling that the ICC may be getting ready to announce a full-fledged official investigation into U.S. conduct in the Afghan conflict.

On the psychological impact on victims of the U.S. interrogation program, see The New York Times special investigative reports here, here, and here.

A Post-Human Rights Agenda for International Law in the Age of Trump

Prof. Ingrig Wuerth, in a blogpost on Lawfare, examines the likely negative impact of a Trump presidency on international law, and in particular on human rights. It is an interesting analysis of recent trends towards the weakening of human rights regimes, and how human rights regimes have actually weakened international law more generally, and she makes an argument for how the Trump administration should approach the issue of protecting human rights

Justice and Human Rights

As discussed in class, Prof. Michael Sandel's course entitled "Justice" at Harvard is a fantastic introduction to theories of rights and perspectives on moral philosophy, illustrating each with great dilemmas drawn from our current public discourse. Each class is just 25 minutes, and they are both entertaining as well as informative and thought provoking.

You can watch the classes as well as find introductory notes, questions, and reference to the detailed readings, at course website. You can also access and download the video/audio podcasts for each class on iTunes. Below is the first class.