Law Commons^™

2010-2011 Veterans Law Update, Kathleen Dwyer, Alec Kast, Scott A. Sigmon, Andrew E. Tarne

Law Student Publications

Part I will cover updates related directly to veterans' benefits and rights. Part II will focus on updates to rules involving veterans' caregivers and healthcare facilities. Part III will cover proposed rules dealing with veterans' claims and insurance. Part IV will focus on rules and case law covering the VA's procedures and operating regulations.

United States’ Compliance With The International Covenant On Civil And Political Rights, Human Rights Institute, American Civil Liberties Union (Aclu)

Human Rights Institute

The U.S. government is engaged in targeted killings through drone strikes (and other aircraft) in Pakistan, Yemen, Somalia and elsewhere, which have resulted in the deaths of thousands of people. U.S. practice is characterized by secrecy and an unwillingness even to engage directly with concerns about civilian harm, let alone to provide accountability for civilian deaths and injury. Despite calls for disclosure from UN experts and non- governmental organizations, the U.S. government uses vague and shifting legal standards, and fails to disclose the basis for strikes or the steps it takes to minimize harm to civilians and investigate reported violations …

Counting Drone Strike Deaths, Human Rights Clinic

Human Rights Institute

Popular debate on U.S. drone strikes often centers on how many individuals are killed, and which of two categories the individuals killed fall into – militant or civilian. U.S. officials emphasize the precision of drone technology and contend that extremely few civilians have been killed. Yet others have questioned these claims and stated that there is evidence to suggest that deaths, and civilian deaths in particular, are much higher than U.S. officials admit.

The uncertainty about civilian deaths is largely due to the U.S. government’s resistance to openly providing information about strikes. In the absence of official data, the most …

The United States' Use Of Drones In The War On Terror: The (Il)Legality Of Targeted Killings Under International Law, Milena Sterio

Law Faculty Articles and Essays

After the terrorist attacks of September 11, 2001, the United States government began to use drones against al-Qaeda targets. According to several media reports, the United States developed two parallel drone programs: one operated by the military, and one operated in secrecy by the CIA. Under the Obama Administration, the latter program developed and- the number of drone attacks in countries such as Pakistan and Yemen has steadily increased. Because the drone program is operated covertly by the CIA, it has been impossible to determine the precise contours of the program, its legal and normative framework, and whether its operators …

Reflections On Kony 2012, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

In spring 1997, few people outside Uganda had heard of the Lord’s Resistance Army (LRA). The LRA arose in the late 1980s out of the ashes of Alice Lakwena’s Holy Spirit Movement, and over the next decade, LRA raids killed thousands of villagers in Northern Uganda. Hundreds of thousands were displaced, and an estimated 10,000 children were forcibly abducted by the LRA and brutally coerced into becoming killers, sex slaves or both. But in the spring of 1997, the LRA had yet to make CNN.

The William & Mary Law School Lewis B. Puller, Jr. Veterans Benefits Clinic And Hmvhe News (Vol. 1, Issue 1), Lewis B. Puller, Jr. Veterans Benefits Clinic

Lewis B. Puller, Jr. Veterans Benefits Clinic

No abstract provided.

Women And Girls Fleeing Conflict: Gender And The Interpretation And Application Of The 1951 Refugee Convention, Valerie Oosterveld

Law Publications

No abstract provided.

Civilian Impact Of Covert Drone Operations Overlooked, Human Rights Clinic

Human Rights Institute

WASHINGTON, DC Sept. 30, 2012 — As US covert drone strikes become more entrenched as an accepted counterterrorism strategy, the US government needs to conduct a thorough accounting of the impact on civilians, said a new report released today by Columbia Law School’s Human Rights Clinic and Center for Civilians in Conflict.

Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert

Articles

Controversy has raged since the Transportation Security Administration (TSA) introduced Advanced Imaging Technology, capable of producing detailed images of travelers' bodies, and "enhanced" pat frisks as part of everyday airport travel. In the face of challenges in the courts and in public discourse, the TSA has justified the heightened security measures as a necessary means to prevent terrorist attacks. The purpose of this Essay is to situate the Fourth Amendment implications of the new regime within a broader historical context. Most germane, after the Federal Aviation Administration (FAA) introduced sweeping new screening of air travelers in the 1960s and 1970s …

The Taint Of Torture: The Roles Of Law And Policy In Our Descent To The Dark Side, David Cole

Georgetown Law Faculty Publications and Other Works

Was the Bush administration’s decision to employ “enhanced interrogation techniques” a mistake of policy, a violation of law, or both? This essay responds to Philip Zelikow’s insider account of how the decision to use these techniques was reached. The author suggests that while Zelikow makes a strong case that the decision to authorize the CIA to use coercive interrogation tactics was a mistaken policy judgment, it is important not to lose sight of the fact that it was also illegal. The latter conclusion demands a different response than the former. In particular, it underscores the necessity for accountability. The author …

Defense Base Act Insurance: Allocating Wartime Contracting Risks Between Government And Private Industry, Hugh Barrett Mcclean

All Faculty Scholarship

More than ever before, the Department of Defense is relying on contactors to support our men and women in uniform. However, the cost of supporting these contractors has been paid not only with congressional funds but with an unprecedented number of contractor casualties. Sadly, while contractors are dying in record numbers in Iraq and Afghanistan, Congress has been preoccupied with paying less for the statutorily mandated workers’ compensation insurance that is intended to protect these workers. With the advent of Kevlar vests and armored-plated Humvees, contractors are returning home, but often with scars of war both visible and invisible. Rather …

The Report Of The Military Leadership Diversity Commission: An Inadequate Basis For Lifting The Exclusion Of Women From Direct Ground Combat, Kingsley R. Browne

Law Faculty Research Publications

The recommendation of the Military Leadership Diversity Commission to lift the exclusion of women from ground combat is deeply irresponsible and cannot be taken seriously. The CommissionÕs lodestar was diversity, not military effectiveness, and it failed to take into consideration a wealth of information bearing on its recommendation. The CommissionÕs recommendation was based primarily on sources that cannot be considered authoritative, and the CommissionÕs analysis of the sources that it did consult was superficial and in conflict with some of the facts, as opposed to the Òspin,Ó contained in these very sources. The Commission substantially downplayed the sex difference in …

The Law Of Operational Targeting: Viewing The Loac Through An Operational Lens, Gary Corn

Articles in Law Reviews & Other Academic Journals

Air and missile warfare is and will almost certainly continue to be a ubiquitous aspect of contemporary armed conflicts. Yet, the law related to the regulation of this aspect of warfare has failed to develop at the same pace as the methods and means of employing such combat assets. The Manual on International Law Applicable to Air and Missile Warfare (AMW Manual)' is therefore without question an important development in the law of armed conflict. Although not hard law, it reflects the consensus of some of the most respected jus in bello scholars in the world on how existing law …

Libya: A Multilateral Constitutional Moment?, Catherine Powell

Georgetown Law Faculty Publications and Other Works

The Libya intervention of 2011 marked the first time that the UN Security Council invoked the “responsibility to protect” principle (RtoP) to authorize use of force by UN member states. In this comment the author argues that the Security Council’s invocation of RtoP in the midst of the Libyan crisis significantly deepens the broader, ongoing transformation in the international law system’s approach to sovereignty and civilian protection. This transformation away from the traditional Westphalian notion of sovereignty has been unfolding for decades, but the Libyan case represents a further normative shift from sovereignty as a right to sovereignty as a …

Rethinking Legality/Legitimacy After The Iraq War, Christine Chinkin

Book Chapters

My topic is legality and legitimacy after the Iraq war. I will start by problematizing the question. First, it is too limited. Why should the question be defined in terms of "after the Iraq war;' not after some other event such as the war in the Democratic Republic of the Congo where some four million people have died and where the health consequences of HIV/ AIDS will continue for generations? Events, even catastrophic events, from which powerful actors have remained aloof, have little visibility as key incidents in the evolution of international law. They are not deemed the "moments of …

Airpower Prophets: Giulio Douhet, Billy Mitchell And Hugh Trenchard, Bob Berlin

ERAU Prescott Aviation History Program

Three airpower prophets from three nations created the concept of strategic bombing and advocated independent air forces. Their theories shaped military aviation for all time. Hear about their lives, controversies, courts martial and lasting influence.

Be Careful What You Wish For: Changing Doctrines, Changing Technologies And The Lower Cost Of War, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The collective security structure created by the U.N. Charter is becoming shakier than ever, and two recent trends pose particular challenges to Charter rules on the use of force. The first trend involves a normative shift in understandings of state sovereignty, and the second trend involves improvements in technology--specifically, the rapid evolution of unmanned aerial vehicles, precision weapons, and surveillance technologies. Each trend on its own raises difficult issues. Together, they further call into question international law’s ability to meaningfully constrain the use of force by states.

Transnational Armed Conflict: A “Principled” Approach To The Regulation Of Counter-Terror Combat Operations, Geoffery S. Corn, Eric Talbot Jensen

Faculty Scholarship

Transnational armed conflicts have become a reality. The increasing sophistication of terrorist organizations, their increasingly transnational nature, and their development of military strike capabilities, push and will continue to push States to resort to combat power as a means to defend against this threat. Relying on the factual fiction that the acts of such terrorists must be attributable to the States from which they launch their operations, or on the legal fiction that the use of military combat power to respond to such threats is in reality just extraterritorial law enforcement, fails to acknowledge the essential nature of such operations. …

Human Rights, Emergencies, And The Rule Of Law, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

This article illuminates the normative basis for international law’s regulation of public emergencies by arguing that human rights are best conceived as norms arising from a fiduciary relationship between states (or state-like actors) and persons subject to their power. States bear a fiduciary duty to guarantee subjects’ secure and equal freedom, a duty that flows from their institutional assumption of sovereign powers. The fiduciary theory disarms Carl Schmitt’s critique of constitutionalism by explaining how emergency powers can be reconciled with the rule of law.

Proportionality In Counterinsurgency: A Relational Theory, Evan J. Criddle

Faculty Publications

At a time when the United States has undertaken high-stakes counterinsurgency campaigns in at least three countries (Afghanistan, Iraq, and Pakistan) while offering support to insurgents in a fourth (Libya), it is striking that the international legal standards governing the use of force in counterinsurgency remain unsettled and deeply controversial. Some authorities have endorsed norms from international humanitarian law as lex specialis, while others have emphasized international human rights as minimum standards of care for counterinsurgency operations. This Article addresses the growing friction between international human rights and humanitarian law in counterinsurgency by developing a relational theory of the use …

The International Criminal Tribunal For Rwanda, Robert D. Sloane

Faculty Scholarship

This essay appears as the ninth chapter of The Rules, Practice, and Jurisprudence of International Courts and Tribunals (Chiara Giorgetti ed., Brill, 2012). It covers the origin, establishment, organization, jurisdiction, and procedures of the International Criminal Tribunal for Rwanda (ICTR). It then explains and analyzes a selection of the ICTR’s significant contributions to international criminal jurisprudence, covering, in particular, the Akayesu; Kayishema & Ruzindana; Nahimana, Barayagwiza & Ngeze (“The Media Case”); and Baglishema cases. The issues therefore include, among others, specific intent in the definition of genocide, rape as a modality of genocide, jurisdiction to prosecute violations of Additional Protocol …

Rites Without Rights: A Tale Of Two Military Commissions, Alexandra Lahav

Faculty Articles and Papers

No abstract provided.

Which Law Governs During Armed Conflict? The Relationship Between International Humanitarian Law And Human Rights Law, Rebecca Crootof, Oona A. Hathaway, Philip Levitz, Haley Nix, William Perdue, Chelsea Purvis, Julia Spiegel

Law Faculty Publications

On May 31, 2010, in the early hours of the morning, Israeli Defense Forces boarded and occupied a flotilla of six vessels seventy-two nautical miles from the coast of Gaza. The flotilla carried food and other supplies to Gaza, which was under a naval blockade. During the incident, nine passengers were killed and several others wounded. In the aftermath, a key question that emerged was what body of law applied to the incident? Was it subject to human rights law, international humanitarian law, or some mix of the two?

This same question has been at the heart of ongoing debates …

2010-2011 Veterans Law Update, Tara L. Casey

Law Faculty Publications

2011 saw multiple changes to the laws relating to veterans, their rights and benefits, and the Department of Veterans Affairs ("VA"). This Article will cover select updates to the field of veterans law codified in the Code of Federal Regulations and the United States Code, proposed in the Federal Register, and adjudicated in the courts. Part I will cover updates related directly to veterans' benefits and rights. Part II will focus on updates to rules involving veterans' caregivers and healthcare facilities. Part III will cover proposed rules dealing with veterans' claims and insurance. Part IV will focus on rules and …

Beyond War: Bin Laden, Escobar, And The Justification Of Targeted Killing, Luis E. Chiesa, Alexander K.A. Greenawalt

Journal Articles

Using the May 2011 killing of Osama bin Laden as a case study, this Article contributes to the debate on targeted killing in two distinct ways, each of which has the result of downplaying the centrality of international humanitarian law (IHL) as the decisive source of justification for targeted killings.

First, we argue that the IHL rules governing the killing of combatants in wartime should be understood to apply more strictly in cases involving the targeting of single individuals, particularly when the targeting occurs against nonparadigmatic combatants outside the traditional battlefield. As applied to the bin Laden killing, we argue …

Gender And The Charles Taylor Case At The Special Court For Sierra Leone, Valerie Oosterveld

Law Publications

No abstract provided.

Recent Developments In International Criminal Law: 2011-2012, Valerie Oosterveld

Law Publications

No abstract provided.

Sovereignty And The Promotion Of Peace In Non-International Armed Conflict, Anna Spain

Publications

No abstract provided.

Beyond War: Bin Laden, Escobar, And The Justification Of Targeted Killing, Luis E. Chiesa, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

Using the May 2011 killing of Osama bin Laden as a case study, this Article contributes to the debate on targeted killing in two distinct ways, each of which has the result of downplaying the centrality of international humanitarian law (IHL) as the decisive source of justification for targeted killings.

First, we argue that the IHL rules governing the killing of combatants in wartime should be understood to apply more strictly in cases involving the targeting of single individuals, particularly when the targeting occurs against nonparadigmatic combatants outside the traditional battlefield. As applied to the bin Laden killing, we argue …

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 …