Use of Force

Yesterday, the Office of the Legal Counsel of the US Department of Justice released some of its secret memoranda to President Bush, several of which are of interest for international lawyers. Two of them deal with questions of IHL, that is the applicability of the Third Geneva Convention to the Taliban, and of the Fourth Geneva Convention to the occupation of Iraq. Three memos, on the other hand, provide the OLC’s advice to the President on the legality of the use of force against Iraq, both under US constitutional law and under international law.I’d like to say a few words about these three memos (authored by the same indomitable Bybee/Yoo team of torture memo fame), both on the quality of their substantive analysis and on the boundaries of the proper role of government legal advisers. I’d also like to compare these memos of US legal advisers with those of their British counterparts, particularly the opinion of the then Attorney General, Lord Goldsmith. The most important of the three opinions was signed by Jay Bybee on…