International Law and U.S. Military Strikes on Syria

(Published in the Huffington Post, Aug. 31, 2013).

Cruise missile launchThere has been insufficient analysis, by both policy makers and the media, of the legality of the looming use of military force against Syria. As usual, the law seems to be beside the point. But this not only ignores a key factor, but is rather paradoxical given that one of the primary justifications for the strikes is that they are to punish the Syrian government for its violations of international law. Legality should be an important factor in the decision-making process, because if the use of force is itself not lawful, then it represents nothing more than vigilante justice, likely doing far more harm than good to the international legal order.

There is little doubt that the Syrian regime has committed war crimes and crimes against humanity against its own people over the last two years. If it is proven that the Assad regime used chemical weapons in the attack last week, that would constitute a separate and grave violation of international law. All of this screams out for a response by the international community.

The reality, however, is that these crimes do not justify a unilateral use of force, and the contemplated American military strikes would not be lawful. Indeed, the Obama administration, while tossing out platitudes about complying with international norms, has not even tried to make the legal case justifying the use of force. … Read more…

Boston and the Dangerous Calls for “Enemy Combatant” Status

(Published in the Huffington Post,  Apr. 30, 2013, and The Truman Doctrine blog, Apr. 30, 2013)

The Obama Administration announced last week that it would prosecute Boston bomber Dzhokhar Tsarnaev in the Federal criminal justice system. This should have been unremarkable, but it came amidst a cacophony of voices demanding that Tzarnaev be classified and treated as an “enemy combatant.” There were calls to similarly classify the Christmas day bomber, the Times Square bomber, and several other terrorist suspects captured in the United States. Such claims have no legal validity, and are indeed dangerous.

The calls for “enemy combatant” status not only came from various so-called pundits on Fox News and the like, but also from more serious quarters. Senator Lindsey Graham criticized the administration, arguing that Tsarnaev should be classified as an “enemy combatant” under the law of armed conflict for the purposes of extracting intelligence.

Alberto Gonzales, former White House in the Bush administration stated in an interview last week that “nothing prevents the President from deciding: ‘This isn’t working, it’s not going the way we hoped it would go, so I’m pulling him out of the criminal justice system and I’m designating him an enemy combatant.'” … Read more…

On the Anniversary of the Iraq Invasion

(Published in the Truman Doctrine Blog, part of a series of 250 word entries on how the Iraq War shaped one’s life and ideas)

Back in 1990, in the run-up to the Gulf War, I was a naval officer, and like most of the world, supported the need to use military force. As a student of history, I understood that force is sometimes necessary in the face of aggression.

By 2003, I was a lawyer, and like much of the rest of the world, I viewed the invasion of Iraq as unnecessary, unwise, and unlawful. The Bush administration’s rationales shifted from “preventative” self-defense against Iraq’s WMD, to resurrection of the U.N.’s authorization to use force in the Gulf War, to claims of links to Al Qaeda and 9/11. In the absence of WMD, the government even stooped to advancing human rights justifications for the attack. None were valid.

I was not directly affected by the war, but I was increasingly disturbed by the developments in Iraq, and the so-called “global war on terror” to which it was inextricably linked. The hundreds of thousands of civilian dead, Guantanamo Bay, Abu-Grahib, the torture memos, targeted killing – and all distorting the law and eroding the rule of law, at home and in the international system.

These contributed to my decision to leave practice and head back to school to research the legal constraints on the use of military force. I became a law professor. So in this way I suppose the war helped shape my life’s path. And I strive for a time when such unjust wars will be more difficult for democratic governments to wage.

How and Why Japan Should Amend its War-Renouncing Article 9

(Published in The Japan Times, Aug. 4, 2012)

The pressure is mounting to either amend Article 9, the war-renouncing provision of Japan’s Constitution, or to increasingly disregard it and so make it irrelevant. In April the Liberal Democratic Party (LDP) published its proposal for amending the Constitution, and the dangers it posed for Article 9 was analyzed here on June 6 (“LDP’s dangerous proposals for amending antiwar article”). But the response to such amendment proposals by the supporters of Article 9 continues to be one of complete denial — that is, a categorical argument that Article 9 should not be amended at all.

This position is misguided. There are both strategic and legal reasons why the left must develop realistic alternative amendment proposals that would preserve and strengthen the core elements of the provision, but eliminate those elements that undermine it. In a chapter in the book “A Time for Change? Japan’s ‘Peace’ Constitution at 65,” published last month by the Woodrow Wilson Center for International Scholars (the chapter is available online: http://bit.ly/MWGF8T), I explain why Article 9 should be amended, and provide draft language that can serve as a basis for beginning a discussion on alternate amendment proposals.

Flat out rejection of any and all possible amendments to Article 9 is dangerous as a strategic matter. The national security environment of Japan has shifted in the last couple of decades, with the emergence of a nuclear-armed North Korea, and the growing military strength of China. In addition to these perceived threats, there is an increasing sense that Japan should be doing more to fulfill its international responsibilities. Moreover, the Japanese Self-Defense Force (SDF) has participated in non-combat roles in such conflicts as Afghanistan and Iraq with no adverse consequences. … Read more…