Law Commons^™

Detention Under The Law Of Armed Conflict, Chris Jenks

Faculty Journal Articles and Book Chapters

Despite recent hard-earned experience during international and non-international armed conflicts in places like Afghanistan and Iraq, and in peacekeeping missions around the world, the international community continues to struggle practically and conceptually with detention of belligerents. The struggle includes questions ranging from when individuals may be detained and for how long, to determining the applicable legal regime. While this myriad of issues is vexing, they are neither as new, nor the applicable law as lacking, as has been argued.

This chapter takes a pragmatic approach to detention and suggests that the 1949 Geneva Conventions and the 1977 Additional Protocols, outmoded …

Civil Liberties And The Indefinite Detention Of U.S. Citizens, Chris Jenks

Faculty Journal Articles and Book Chapters

Section 1021 of the 2012 National Defense Authorization Act provides for the indefinite detention of individuals deemed to be part of or substantially supportive of al Qaeda, the Taliban, and associated forces in hostilities against the United States or its coalition allies. Yet the Congress which drafted Section 1021 doesn’t know what its operative terms mean and the Executive Branch simultaneously claims the provisions are problematic yet meaningless and signs them into law. The result is uncertainty over the Executive Branch’s armed conflict detention authority, not on distant battlefields, but here in the United States. This article focuses on three …

Moral Touchstone, Not General Deterrence: The Role Of International Criminal Justice In Fostering Compliance With International Humanitarian Law, Chris Jenks

Faculty Journal Articles and Book Chapters

This article contends that international criminal justice provides minimal general deterrence of future violations of international humanitarian law (IHL). Arguments that international courts and tribunals deter future violations – and that such deterrence is a primary objective – assume an internally inconsistent burden that the processes cannot bear, in essence setting international criminal justice up for failure. Moreover, the inherently limited number of proceedings, the length of time required, the dense opinions generated, the relatively light sentences and the robust confinement conditions all erode whatever limited general deterrence international criminal justice might otherwise provide. Bluntly stated, thousands of pages of …

Correspondents' Reports United States Of America, Chris Jenks

Faculty Journal Articles and Book Chapters

This correspondent report compiles examples of where and how in 2013 the United States demonstrated its compliance with international humanitarian law by prosecuting its service members in military courts-martial and captured enemy belligerents in military commissions and by US federal courts hearing detainee habeas challenges.

Law As Shield, Law As Sword: The Icc's Lubanga Decision, Child Soldiers And The Perverse Mutualism Of Direct Participation In Hostilities, Chris Jenks

Faculty Journal Articles and Book Chapters

The International Criminal Court’s Lubanga decision has been hailed as a landmark ruling heralding an end to impunity for those who recruit and employ children in armed conflict and a pivotal victory for the protection of children. Overlooked amidst this self-congratulation is that the ICC incorrectly applied the law governing civilian participation in hostilities which perversely places child soldiers at greater risk of being attacked. The Court created a false distinction between active and direct participation in hostilities. Expanding the kinds and types of behaviors that constitute children actively participating in hostilities expanded Lubanga's liability. But under the law of …

Belligerent Targeting And The Invalidity Of A Least Harmful Means Rule, Geoffrey S. Corn, Laurie R. Blank, Chris Jenks, Eric Talbot Jensen

Faculty Journal Articles and Book Chapters

The law of armed conflict provides the authority to use lethal force as a first resort against identified enemy belligerent operatives. There is virtually no disagreement with the rule that once an enemy belligerent becomes hors de combat — what a soldier would recognizes as “combat ineffective” — this authority to employ deadly force terminates. Recently, however, some have forcefully asserted that the LOAC includes an obligation to capture in lieu of employing deadly force whenever doing so presents no meaningful risk to attacking forces, even when the enemy belligerent is neither physically disabled or manifesting surrender. Proponents of this …

Correspondents' Reports, Chris Jenks

Faculty Journal Articles and Book Chapters

This correspondent report compiles examples of where and how the United States demonstrated its compliance with international humanitarian law by prosecuting its service members in 2012.

Correspondents' Reports: A Guide To State Practice In The Field Of International Humanitarian Law, Chris Jenks

Faculty Journal Articles and Book Chapters

This correspondent report compiles examples of where and how the United States demonstrated its compliance with international humanitarian law by prosecuting its service members in 2010.