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Humanity & National Security: The Law Of Mass Atrocity Response Operations, Keith A. Petty

Keith A. Petty

As the world watches civilian slaughter in Syria, the United States is refining a whole of government approach to prevent and respond to genocide and other atrocity crimes. Military intervention under the recently developed concept of Mass Atrocity Response Operations (MARO) will certainly be included as part of any planning contingency, following diplomatic, economic, and multilateral actions. The current state of international law, however, only permits the use of force, to prevent atrocity crimes or for any other reason, if authorized by the UN Security Council (UNSC) or in self-defense. When the UNSC fails to act—as it has so often …

Beyond The Court Of Public Opinion: Military Commissions And The Reputational Pull Of Compliance Theory, Keith A. Petty

Keith A. Petty

The decision to prosecute the suspected co-conspirators of the 9/11 terrorist attacks in either federal court or by military tribunal has reached a critical juncture. Central to this debate is whether the military commissions are consistent with domestic and international standards of justice. Utilizing the analytical framework of compliance theory, this article discusses the U.S. reputation for compliance in the context of the revised military commissions.

A decidedly negative reputation of the military commissions contributed to policies to amend the tribunal process, culminating in the Military Commissions Act of 2009. This supports empirical findings that States are pulled toward compliance …

Who Watches The Watchmen? 'Vigilant Doorkeeping,' The Alien Tort Statute, & Possible Reform, Keith A. Petty

Keith A. Petty

The Alien Tort Statute (ATS) allows alien plaintiffs to file civil actions in U.S. district courts for torts violating the law of nations or U.S. treaties. After the 2nd Circuit’s Filartiga decision in 1980, the debate began as to whether the ATS was a useful tool against human rights violators or an intrusion into U.S. foreign relations. In 2004, the Supreme Court in Sosa v. Alvarez-Machain resolved some of the questions left open by Filartiga.

Sosa concluded that ATS claims must be limited to law of nations violations as well defined as those recognized in 1789. The Court tasked the …

Are You There, Geneva? It's Me, Guantanamo, Keith A. Petty

Keith A. Petty

This essay examines the application of the Geneva Conventions at the Guantánamo Bay Military Commissions. International and domestic commentators have long criticized the military commissions for failing to adhere to the laws of armed conflict enshrined in Geneva, referring to Guantánamo as a “legal black hole.” This criticism, however, is misplaced. Since the attacks of September 11, 2001, the legal framework for prosecuting suspected terrorism detainees has evolved. The underlying reason for this is a considerable gap in the Geneva protective regime for combatants who do not satisfy the legal requirements of prisoners of war (GCIII) or civilians (GCIV). Nonetheless, …

Criminalizing Force: Resolving The Threshold Question For The Crime Of Aggression In The Context Of Modern Conflict, Keith A. Petty

Keith A. Petty

The crime of aggression will soon become reality when the International Criminal Court adopts an operational definition to the Rome Statute in 2010. Criminalizing force in this manner will add to the body of law regulating the initiation of armed force – jus ad bellum. Regime elites and policy makers must ask which applications of force will fall within the jurisdictional parameters of this new offense. Will it apply to humanitarian intervention? Will the Prosecutor initiate an investigation into actions taken to combat terrorism? These issues are resolved by answering the threshold question for the crime of aggression.

The draft …

Sixty Years In The Making: The Definition Of Aggression For The International Criminal Court, Keith A. Petty

Keith A. Petty

The post war trials of axis war criminals marked the last time the crime of aggression was prosecuted. Today, the Special Working Group on the Crime of Aggression (SWG) is nearing agreement on a definition that will likely be adopted by the Assembly of States Parties to the International Criminal Court (ICC) – a prerequisite to the Court exercising jurisdiction over this offense. In spite of decades of work, several key issues must be resolved before the definition is finalized. These include: the level of involvement of the Security Council in determining when a State commits aggressive acts, and whether …