The Obama administration’s legal approach to global NIAC and to targeted killing is a result of convergence-based law and lawyering. Arguments devised in moments of great urgency, and in a sense that some rules (however poorly constructed, and however faulty under existing international law) were better than no rules, a la the early Bush administration. The problem is that, having contributed to this mess, it is difficult to step back and criticize it.

Today, the American public is confused (a number of friends and colleagues responded to the Isikoff article by expressing outrage that President Obama had decided to “lower” the standards applicable to civilian casualties), and the international legal arguments available to those uncomfortable with the “Forever War” are considerably weakened by the “folk international law” that many liberal international lawyers helped to create. Traditional, currently binding LOAC does not require a near-certainty that a lawful attack will not kill civilians.

 

.@NazModirzadeh explains how Koh & others created a „grey zone“ of international law that they’re now concerned about http://www.lawfareblog.com/2014/10/folk-international-law-and-syrian-airstrikes/ …

Spoiler: ICC might be unconstitutional RT @EVKontorovich: Three International Courts & Their Constitutional Problems http://goo.gl/fb/RKMJhh