aggressive war

By Benjamin G. Davis, Associate Professor, University of Toledo College of Law A colleague brought to my attention this week an article concerning the effort to extradite former Acting General Counsel John Rizzo of the Central Intelligence Agency to places such as Pakistan for him to stand trial for murder with regard to persons killed by drone strikes.  This article struck a chord with me because John Rizzo played the key role in authorizing drone strikes on individuals in  this administration, but also was a key player as detailed in the Department of Justice Office of Professional Responsibility Report released by Attorney General Holder in seeking legal cover/clarity for the CIA persons engaged in the torture under the Bush Administration.  Rizzo also spoke at my law school last year as part of a law review symposium on the Military Commissions in which persons from the floor raised issues about his role in the torture.  This article also struck me as I work this summer on topics related to accountability in our federalism and separation of powers for a law review article looking at state criminal prosecution of a former President. The legality of drone strikes has been the subject of much debate as persons have argued whether they should be analyzed under the legal regimes of international humanitarian law, international human rights law, domestic law such as the Authorization for Use of Military Force, or a construct that has sought to be seen as emerging that might be called international self-defense law.  The analysis of the torture over the past years has also sought to look for treaty, customary international law, and domestic federal statutes.  For example, we have recently been made aware that two criminal cases concerning torture and the CIA are going forward at the suggestion of US Attorney John Durham.  Durham was tasked by the Attorney General at the Department of Justice to review 101 cases regarding detainee treatment and the CIA to see if there were any cases where the treatment was outside the boundaries of the legal advice given.  Finally, the definition efforts for the crime of aggressive war in the Rome Statute that recently occurred at Kampala are another aspect of  trying to articulate rules for criminal responsibility for actions taken by state actors.