Sunday, April 27, 2014

Corporate liability for aiding and abetting war crimes abroad?

Corporate Liability under the Alien Tort Statute and Kiobel II



As explained below, a recent decision highlighted by Lawfare prompted this particular post that touches on a subject I find intriguing: corporate liability under international law. We now have a Supreme Court decision (Kiobel II) that touches on the issue without deciding it, and two lower court decisions interpreting that Supreme Court decision, which are addressed here. The basic premise of this post is that both lower courts got it wrong insofar as they read more into Kiobel II than is actually there. Further, the Kiobel II decision actually shows that corporate liability under the ATS is still very open to question, and will likely result in a divided and contentious decision when the Supreme Court finally addresses it.


Sunday, April 20, 2014

Good article on the life and death consequences of language

I think the headline is a bit hyperbolic, but agree or disagree, the article itself is more than worth the read: 60 words and a War Without End

Interesting side note: The language the Obama administration uses regarding military force -- "associated forces" -- and quoted several times in the article isn't in the AUMF, but IS in the 2012 NDAA. The detention provisions of the NDAA supposedly just affirmed the AUMF, but actually expanded it. Interesting to see that, from what is quoted in this article, much of what I think is actually the real danger of the language of the NDAA seems to have come from the Obama administration's own legal arguments in a Federal case early in his administration, where the argument was being made that the AUMF allowed us to detain a suspect in guantanamo who was challenging that detention.

That very language in the NDAA supposedly "interpreting" the AUMF while in reality expanding it ("associated forces", "coalition partner," "belligerent act," "substantially supported") in the specific context of who we can detain seems to have been lifted directly from the Government's arguments in that case and placed in the NDAA. The dangerousness of this expansive language in the NDAA is discussed here. /self promotion.

From the looks of it, that exact same dangerously expansive language has been the framework for "interpreting" ALL force exercised under the authority of the AUMF.