Digital Commons Network^™

Break Their Lineage, Break Their Roots: Investigating The Chinese Government’S Relationship With The Uyghur Population To Determine The Potential For Terrorism And Genocide, Anya Veinberg

Helm's School of Government Conference - 2021-2024

History is wrought with war, crime, and persecution. After nearly every conflict, world leaders vow to never let something similar happen again. Yet, history seems to repeat itself, and so do its conflicts. The Holocaust claimed the lives of millions of Jews and seemed to set a precedent of a modern threshold of evil. How many people would argue that an event strikingly similar to the Holocaust is happening right now in China?

The Chinese government is currently committing acts of violence and faith and race-based discrimination against the Uyghur population.

This work analyzes the interaction between the Chinese government …

A Right Without A Remedy: How One Cincinnatian's Story Illustrates Terrorism Victims' Inability To Obtain Compensation Under The Foreign Sovereign Immunities Act, Christopher T. Colloton

University of Cincinnati Law Review

No abstract provided.

Islamist Terrorism And The Classical Islamic Law Of War, Joseph Hoelz

International Law Studies

Islamist terrorists have had a large influence on U.S. foreign and domestic policy for more than twenty years, and yet policy makers, legal practitioners, and the public know very little about what motivates these violent extremist organizations. A primary unifying principle among the various Islamist terrorist groups is their desire to return to a religiously ordered State, justified and based upon their interpretation of the Shari’a, or Islamic law. This article explores the Islamist terrorist interpretation of Shari’a law and how it generally contradicts that of mainstream Islamic scholars. The article begins with a review of the primary and secondary …

Sovereign Authority And Rule Of Law: The Effect Of U.S. Use Of Torture On Political Legitimacy, Sydney Bradley

Undergraduate Honors Theses

Governmental sovereignty is created and maintained by mutual respect for the rule of law by the government and citizens. To maintain legitimacy, a government must act within the bounds of the contract that created it. Otherwise, the relationship founded by said contract would be nullified, as would the duties and obligations that flow from that relationship. Torture exemplifies an ultra vires act used by the United States to show the consequences of over-extended authority on political legitimacy and the rule of law. Founded on the philosophies of Hugo Grotius, Thomas Hobbes, and Christine Korsgaard, this research investigates the nature of …

Human Rights In The Light Of International Opportunism: A Study Of The Impact Of The War On Terrorism On Human Rights

UAEU Law Journal

International terrorism reached its peak on September 11, 2001 when four civilian airplanes were hijacked and hit the World Trade Centre in New York and part of the Pentagon in Washington D.C. Such attacks were considered a serious challenge for contemporary societies which called on their military, economic, and political might to declare an open war against international terrorism. This so-called counter terrorism war emerged to shape the new world order. Such war was accompanied by gross violations of public international law, the international human rights law and the international humanitarian law. In fact, some opportunistic régimes found it a …

The Icc Should Not Encourage Occupation, Uri Weiss

Touro Law Review

No abstract provided.

The Changing Face Of Terrorism And The Designation Of Foreign Terrorist Organizations, Patrick J. Keenan

Indiana Law Journal

In this Article, I take up one slice of what should be a broad re-examination of

U.S. law and policy. I argue that the new attacks have been undertaken by entities

that can and should be designated as foreign terrorist organizations. Doing this would

permit prosecutors to target those who support these entities with tools that are not

currently available. This Article is both a doctrinal argument that directly addresses

the many legal hurdles that make designating groups, such as foreign hackers and

troll farms, terrorist organizations a complicated endeavor, and a policy argument

about how U.S. law and policy …

Beyond Human Shielding: Civilian Risk Exploitation And Indirect Civilian Targeting, Geoffrey S. Corn

International Law Studies

Few violations of the law of armed conflict (LOAC) are as pernicious as using civilians to shield military objectives from attack. This unlawful tactic unfortunately seems to be an all too common practice of organized armed groups, especially in conflicts against tactically superior conventional state armed forces. The very term "human shielding" presupposes, however, the ultimate objective is to prevent an opponent from attacking the shielded military objective or, in the alternative, substantially complicate that attack decision. But is a shielding effect always the ultimate objective of such civilian exploitation? This article argues that the answer is no; that there …

Donald Trump, Twitter, And Islamophobia: The End Of Dignity In Presidential Rhetoric About Terrorism, Gabriel Rubin

Department of Justice Studies Faculty Scholarship and Creative Works

Donald Trump’s rhetoric is markedly different than that of just about every other American president. Trump’s speeches on terrorism and his related Islamophobia and anti-immigrant rhetoric are examined in this chapter. Trump’s use of Twitter and view of the presidency as a “permanent campaign” keep his followers in a state of near-permanent mobilization. Trump uses the rhetoric of fear to push his followers against Muslims and immigrants by linking terrorism to both groups. As Jeffrey Tulis opines, Trump is America’s first demagogue. This chapter highlights how Trump’s demagoguery and novel method for communicating with his followers has framed the terror …

Inter-American Commission On Human Rights' Observer At The Amia Bombing Trial, Claudio Grossman

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Talking Foreign Policy: Responding To Rogue States, Milena Sterio, Todd F. Buchwald, James Johnson, Michael P. Scharf, Paul R. Williams

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by the Dean of Case Western Reserve University School of Law, Michael Scharf, in which experts discuss important foreign policy issues.The purpose of the radio show is to cover some of the most salient foreign policy topics and discuss them in a way that can make it easier for listeners to grasp.

Talking Foreign Policy is recorded in the WCPN 90.3 Ideastream studio, Cleveland's NPR affiliate. Michael Scharf is joined each session with a few expert colleagues known for their ability to discuss complex topics in an easy-to-digest manner:

• The ambassador: …

The Theory And Practice At The Intersection Between Human Rights And Humanitarian Law, Monica Hakimi

Reviews

The United States is more than fifteen years into a fight against terrorism that shows no sign of abating and, with the change in administration, appears to be intensifying. Other Western democracies that have historically been uneasy about U.S. counterterrorism policies have, in recent years, shifted toward those policies. And armed nonstate groups continue to commit large-scale acts of violence in multiple distinct theaters. The legal issues that these situations present are not entirely new, but neither are they going away. Recent publications, like the three works under review, thus provide useful opportunities to reflect on and refine our thinking …

When Terrorists Govern: Protecting Civilians In Conflicts With State-Building Armed Groups, Mara R. Revkin

Faculty Scholarship

Many existing U.S. counter-terrorism policies, including those governing targeting and detention, rely on an empirical assumption that terrorist groups are primarily military organizations. This assumption may be appropriate in the case of al-Qaeda, but it fails to describe terrorist groups that engage not only in warfare but also in governance and state-building such as the Islamic State, a self-declared “caliphate” that—at the height of its expansion in 2014—claimed sovereignty over an estimated 34,000 square miles and 10 million civilians. This Article identifies a category of “state-building” terrorist groups that can be distinguished by the following characteristics: (1) the presence of …

The Popular But Unlawful Armed Reprisal, Mary Ellen O'Connell

Journal Articles

The United States and Iran carried out armed reprisals in Syria during 2017 in the wake of chemical and terror attacks. Despite support for their actions even by countries such as Germany and France, retaliatory uses of force are clearly prohibited under international law. International law generally prohibits all use of armed force with narrow exceptions for self-defense, United Nations Security Council authorization, and consent of a government to participate in a civil war. Military force after an incident are reprisals, which have been expressly forbidden by the UN. Prior to the Trump administration, the U.S. consistently attempted to justify …

The Future Of U.S. Detention Under International Law: Workshop Report, International Committee Of The Red Cross (Icrc), Harvard Law School Program On International Law And Armed Conflict (Hls Pilac), Stockton Center For The Study Of International Law (U.S. Naval War College)

International Law Studies

The International Committee of the Red Cross Regional Delegation for the United States and Canada, the Harvard Law School Program on International Law and Armed Conflict, and the Stockton Center for the Study of International Law at the U.S. Naval War College recently hosted a workshop titled Global Battlefields: The Future of U.S. Detention under International Law. The workshop was designed to facilitate discussion on international law issues pertaining to U.S. detention practices and policies in armed conflict. Workshop participants included members of government, legal experts, practitioners and scholars from a variety of countries. This report attempts to capture the …

A Human Rights Perspective To Global Battlefield Detention: Time To Reconsider Indefinite Detention, Yuval Shany

International Law Studies

This article discusses one principal challenge to detention without trial of suspected international terrorists—the international human rights law (IHRL) norm requiring the introduction of an upper limit on the duration of security detention in order to render it not indefinite in length. Part One of this article describes the “hardline” position on security detention, adopted by the United States in the immediate aftermath of the 9/11 terror attacks (followed, with certain variations, by other countries, including the United Kingdom and the State of Israel), according to which international terrorism suspects can be deprived of their liberty without trial for the …

The Limits Of Inviolability: The Parameters For Protection Of United Nations Facilities During Armed Conflict, Laurie R. Blank

International Law Studies

This article examines the international legal protections for United Nations humanitarian assistance and other civilian facilities during armed conflict, including under general international law, setting forth the immunities of the United Nations, and the law of armed conflict (LOAC), the relevant legal framework during wartime. Recent conflicts highlight three primary issues: (1) collateral damage to UN facilities as a consequence of strikes on military objectives nearby and military operations in the immediate vicinity; (2) the misuse of UN facilities for military purposes; and (3) direct attacks on fighters, weapons or other equipment that cause damage to such facilities. To identify …

Without Unnecessary Delay: Using Army Regulation 190–8 To Curtail Extended Detention At Sea, Meghan Claire Hammond

Northwestern University Law Review

This Note analyzes instances of U.S. detention of suspected terrorists while at sea as an alternative to Guantánamo, and how this at-sea detention fits in the interplay of U.S. statutory law, procedural law, and applicable international law. Of particular interest is the dual use of military and civilian legal regimes to create a procedural-protection-free zone on board U.S. warships during a detainee’s transfer from their place of capture to the U.S. court system. The Note concludes that U.S. Army Regulation 190–8 contains language of which the purpose and intent may be analogized to the Federal Rules of Criminal Procedure requirements …

Foreign Terrorist Fighters In Syria: Challenges Of The “Sending” State, Marten Zwanenburg

International Law Studies

This article discusses domestic measures taken by the Netherlands to combat the phenomenon of foreign terrorist fighters, predominantly in the context of the Syrian conflict. It discusses criminal prosecution, asset freezes, deprivation of nationality and revocation of travel documents. The author concludes that in each of these fields, there is a close relationship between international law and national law.

'Protection And Empire': The Martens Clause, State Sovereignty, And Individual Rights, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

The Martens Clause was a last-minute compromise that saved the 1899 Hague Convention with Respect to the Laws and Customs of War on Land. In its original formulation, the clause shielded individuals under “the protection and empire” of international law, principles of humanity, and the dictates of the public conscience. F. F. Martens, its author, was Russia’s greatest international law scholar and occasional diplomat. He saw no application for his work in the nineteenth-century internal affairs of his sovereign, notwithstanding the transnational terrorism that plagued (and ultimately destroyed) the Russian Empire. As the relationship between individual rights and state sovereignty …

The Boundless War: Challenging The Notion Of A Global Armed Conflict Against Al-Qaeda And Its Affiliates, Andrew Beshai

Loyola of Los Angeles Law Review

The U.S. military response to the 9/11 attacks has expanded into a “global war” without a definite geographic scope. Both the Bush and Obama administrations have executed attacks in several countries including Somalia, Afghanistan, Pakistan, and Yemen under the “global war” paradigm. This Article challenges the concept of a global armed conflict, instead favoring the “epicenter-of-hostilities” framework for determining the legality of military action against Al-Qaeda, the Taliban, and other terrorist groups. This approach, rooted in established international law, measures the existence of specific criteria in each nation where hostile forces are present to determine if an armed conflict in …

Law Of War Developments Issue Introduction, David Glazier

Loyola of Los Angeles Law Review

No abstract provided.

Repatriate . . . Then Compensate: Why The United States Owes Reparation Payments To Former Guantánamo Detainees, Cameron Bell

Loyola of Los Angeles Law Review

In late 2001, U.S. government officials chose Guantánamo Bay, Cuba, as the site to house the “war on terror” detainees. Since then, 779 individuals have been detained at Guantánamo. Many of the detainees have endured years of detention, cruel and degrading treatment, and for some, torture—conduct that violates well-established prohibitions against torture and inhumane treatment under both general international law and the law of war. Under these bodies of law, the United States is required to make reparation—through restitution, compensation, and satisfaction—for acts that violate its international obligations. But the United States has not offered financial compensation to any Guantánamo …

Assessing The Velocity, Scale, Volume, Intensity And “Creedal Congruence” Of Immigrants In Setting A Nation’S Admissions Policy, David Barnhizer

David Barnhizer

Table of Contents Death of the “Melting Pot” The Rejection of Assimilation and the Rise of “Identity Sects” Western Europe and the US Face Significant Challenges to Their Creeds and Cultures The Radicalizing Search for Identity and Meaning The Velocity, Scale and Difference of Migrant Entry Into Dissimilar Cultures Assimilation Is Not Easy Under the Best of Circumstances ISIS, al-Qaeda and The Old Man of the Mountain What Are the Creedal Values For Which Western Nations Should Expect Commitment from Immigrants and Citizens? “Warning! Do Not Approach!” Beyond Non-Assimilation to Cultural Transformation The Right to Preserve a “Cultural Ecosystem” The …

Values And The Courts: Maintaining The Rule Of Law In The Global World, Honourable Beverley Mclachlin

The International Lawyer

No abstract provided.

The Role Of Counterterrorism Law In Shaping Ad Bellum Norms For Cyber Warfare, William Banks

International Law Studies

No abstract provided.

Cyber War And International Law: Does The International Legal Process Constitute A Threat To U.S. Vital Interests?, John F. Murphy

International Law Studies

No abstract provided.

Targeting And The Concept Of Intent, Jens David Ohlin

Michigan Journal of International Law

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well-settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems — often civil law jurisdictions — prosecutors, judges and even scholars have …

Detention Debates, Deborah N. Pearlstein

Michigan Law Review

Since the United States began detaining people in efforts it has characterized, with greater and lesser accuracy, as part of global counterterrorism operations, U.S. detention programs have spawned more than 200 different lawsuits producing 6 Supreme Court decisions, 4 major pieces of legislation, at least 7 executive orders across 2 presidential administrations, more than 100 books, 231 law review articles (counting only those with the word "Guantanamo" in the title), dozens of reports by nongovernmental organizations, and countless news and analysis articles from media outlets in and out of the mainstream. For those in the academic and policy communities who …

Sow What You Reap? Using Predator And Reaper Drones To Carry Out Assassinations Or Targeted Killings Of Suspected Islamic Terrorists, Thomas M. Mcdonnell

Elisabeth Haub School of Law Faculty Publications

This article explores whether targeted killing of suspected Islamist terrorists comports with international law generally, whether any special rules apply in so-called “failed states,” and whether deploying attack drones poses special risks for the civilian population, for humanitarian and human rights law, and for the struggle against terrorism. Part I of this article discusses the Predator Drone and its upgraded version Predator B, the Reaper, and analyzes their technological capabilities and innovations. Part II discusses international humanitarian law and international human rights law as applied to a state’s targeting and killing an individual inside or outside armed conflict or in …