Law Commons^™

International Criminal Law And The Role Of Narrative In The War In Ukraine, Jonathan Hafetz

Pace International Law Review

This article examines the multiple ways that international criminal law (ICL)—the body of international law that seeks to impose criminal responsibility on individuals for international crimes—has impacted the conflict in Ukraine. Most violations remain unpunished, and ICL’s legal accountability mechanisms continue to face significant obstacles. But even absent prosecutions and trials, which remain contingent on an array of shifting factors, ICL has affected the Ukraine conflict in multiple ways.

The article focuses on how ICL has helped shape narratives about the war in Ukraine. In doing so, the article cautions against a strict law/politics dichotomy and instead focuses on the …

Aggressor Status And Its Impact On International Criminal Law Case Selection, Nancy Amoury Combs

Pace International Law Review

The laws of war apply equally to all parties to a conflict; thus, a party that violates international law by launching a war is granted the same international humanitarian law rights as a party that is required to defend against the illegal war. This doctrine—known as the equal application doctrine—has been sharply critiqued, particularly by philosophers, who claim the doctrine to be morally indefensible. Lawyers and legal academics, by contrast, defend the equal application doctrine because they reasonably fear that applying different rules to different warring parties will sharply reduce states’ willingness to comply with the international humanitarian law system …

World War I And The Armenian Genocide: Laying The Groundwork For Crimes Against Humanity, Julia Koch

Pace International Law Review

For all of its advancements in international law, including delivering justice to the war criminals of the Second World War, the International Military Tribunal in Nuremberg has long been tainted with accusations of victors’ justice and criticized for violating the principle of nullem crimen sine lege. Such is the case for crimes against humanity, a crime that did not exist in positive international law until the 1945-46 legal proceedings in Nuremberg. But the historiography of the First World War—an era where punishment for war crimes is generally viewed as a wholesale failure—provides an additional, indeed novel, basis for understanding …

Effectiveness Of The Existing International Humanitarian Law Provisions In Protecting The Natural Environment During Internal Armed Conflicts, Joharah M. Alkahtani

Dissertations & Theses

The environment is inherently at risk in any armed conflict and the natural environment is always a victim of wars. In order to properly protect the environment, the international community must explicitly recognize the civilian nature of the environment and bar all damages to it notwithstanding its extent, longevity and severity. The current study focuses on the environmental protection during armed conflicts. In World War I, parties employed the indiscriminate use of chemical weapons as a way of gaining military advantage over their enemies. The world responded by adopting the Convention on the Prohibition of the Development, Production, Stockpiling and …

Securing The Precipitous Heights: U.S. Lawfare As A Means To Confront China At Sea, In Space, And Cyberspace, Garret S. Bowman

Pace International Law Review

No abstract provided.

Justice Delayed, Justice Denied? The Search For Accountability For Alleged Wartime Atrocities Committed In Sri Lanka, Aloka Wanigasuriya

Pace International Law Review

During the final stages of its nearly three-decades-long civil war in 2009, Sri Lanka attracted considerable international attention due to the allegations of international crimes that were said to have been committed both by the Sri Lankan government Armed Forces, the Guerilla Force, and the Liberation Tigers of Tamil Eelam (LTTE). According to United Nations (UN) experts, an estimated 40,000 civilians were killed during the final offensive, which lasted from January to May 2009. However, the Sri Lankan government has set this figure at 9,000 with no civilian casualties. Several UN bodies found credible allegations that international crimes were committed …

Leahy—Sharpening The Blade, Nandor F.R. Kiss

Pace International Law Review

Over the course of the last 20 years, the Leahy Law has become one of the cornerstones of foreign and human rights policy. Yet, despite its largely unchallenged importance, field practitioners and other stakeholders have identified a number of substantive and practical deficiencies that greatly diminish the law’s ability to achieve the desired effect, and worse, may pose a risk to the United States’ interests. In reflecting on these deficiencies, and armed with decades of data and anecdotal evidence, this Article proposes adjustments focused on better aligning the law’s intent and effect. These recommendations range from semantic edits to substantive …

Federalism: Necessary Legal Foundation For The Central Middle Eastern States, Issa Al-Aweel

Pace International Law Review

The Central Middle East—comprising of Syria, Israel, Palestine, Lebanon, and Jordan—is in need of a legal foundation defined by a constitutional umbrella that governs it as a whole. This is a proposed broad structure of such legal foundation that serves regional legal and economic needs and includes recognition of human rights.

The need for such restructuring is evident from the persistence of regional conflict and instability. Conflict and instability have been constants in the region in general and certainly in the listed five states. The issues include political instability, terrorism, continuous threats of fundamentalism, and pervasive disregard to human life …

Presidential War Powers And Humanitarian Intervention, Michael J. Sherman

Pace Law Review

Does the fact that Article I, Section 8 of the United States Constitution reserves to Congress the authority to “declare war” mean that the president needs congressional approval before using military force? As this Article discusses, there are a range of answers to this question. The Article examines this debate in the context of humanitarian intervention, i.e. military actions taken, not for purposes of conquest, but instead to stop largescale, serious violations of human rights. If the president wishes to use the military for these purposes, should he have more authority under the Constitution to do so? Less? The same? …

License To Kill: An Analysis Of The Legality Of Fully Autonomous Drones In The Context Of International Use Of Force Law, Andrew Figueroa

Pace International Law Review

We live in a world of constant technological change; and with this change, comes unknown effects and consequences. This is even truer with weapons and warfare. Indeed, as the means and methods of warfare rapidly modify and transform, the effects and consequences on the laws of war are unknown. This Article addresses one such development in weapon and warfare technology—Fully Autonomous Weapons or “Killer Robots”—and discusses the inevitable use of these weapons within the current international law framework. Recognizing the current, inadequate legal framework, this Article proposes a regulation policy to mitigate the risks associated with Fully Autonomous Weapons. But …

International Law Of Nuclear Weapons Nonproliferation: Application To Non-State Actors, Imrana Iqbal

Pace International Law Review

International legal responses to the threat of nuclear terrorism by non-state actors have been many but often inconsistent, inadequate, and legally unsound. This Article argues in favor of resorting to successfully-implemented methods of dealing with similar crimes. International law has already expanded from its original statist conceptions and scope to include individuals, such as in international human rights norms and international humanitarian laws. In the latter, in particular, the law has expanded in the context of both international and non-international armed conflict. This Article argues that the advancement of law in these areas can lend much to efforts to bring …

Targeted Capture, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

This Article confronts one of the most difficult and contested questions in the debate about targeted killing that has raged in academic and policy circles over the last decade. Suppose that, in wartime, the target of a military strike may readily be neutralized through nonlethal means such as capture. Do the attacking forces have an obligation to pursue that nonlethal alternative? The Article defends the duty to employ less restrictive means (“LRM”) in wartime, and it advances several novel arguments in defense of that obligation. In contrast to those who look to external restraints--such as those imposed by international human …

If War Is Everywhere, Then Must The Law Be Nowhere?, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

This response focuses on one of the most difficult questions posed by Rosa Brooks's How Everything Became War and the Military Became Everything: How should the erosion of the war / peace dichotomy impact the justifications for the use of lethal force by the United States government and what, if any, role is there for law in this context? While Brooks is unambiguously critical of Bush administration legal policies that asserted expansive executive war powers, she is less certain about the Obama administration's own reliance on the war paradigm to justify its targeted killing policies. While describing these policies as …

The Big Lebowski: The Dude’S Lessons In Law And Leadership For Military And National Security Attorneys, Ryan A. Little

Pace Law Review

The Big Lebowski is a cultural phenomenon that has prompted academic research into the nature of cult cinema, provided fodder for a host of law review quotes, and motivated a tradition of fan festivals and midnight screenings. However, most viewers do not realize that The Big Lebowski also serves as an engaging training tool for military and national security attorneys.

Disguised as an impish play on film noir and hard-boiled detective fiction, The Big Lebowski’s unpretentious treatment of delicate topics contains poignant lessons for military and national security attorneys that include: (1) the risks facing national security attorneys when they …

Rule Of Law In The Age Of The Drone: Requiring Transparency And Disqualifying Clandestine Actors—The Cia And The Joint Special Operations Command, Thomas Michael Mcdonnell

Elisabeth Haub School of Law Faculty Publications

Since shortly after 9/11, weaponized drones have be-come part of the fabric of United States policy and practice in countering Islamic terrorist organizations and personnel. Although many diplomats, UN officials, and scholars have criticized the widespread use of this weapon system for “targeted killing,” drones are here to stay. But how much investigation and oversight must a democratic country carry out over such a program, and more critically, how can a country do so effectively when the Executive has handed primary responsibility for drone targeted killing attacks to its clandestine forces, the Central Intelligence Agency and the Joint Special Operations …

Anonymous Armies: Modern “Cyber-Combatants” And Their Prospective Rights Under International Humanitarian Law, Jake B. Sher

Pace International Law Review

Cyber-attacks take many forms, only some of which are applicable to the law of war. This Comment discusses only those attacks sponsored by a government or non-state entity that have the goal of affecting morale or gaining political advantage, or those attacks amounting to tactical strikes on state or civilian infrastructure. In that vein, this Comment proposes the adoption of a new legal framework for determining the threshold that marks a participant in such a cyber-attack as a “cyber-combatant” by adapting the framework set by the Geneva Conventions and existing custom. This definition should encompass cyber-attacks perpetrated by states, unrecognized …

The Egyptian Coup, The United States, And A Call To Strengthen The Rule Of Law And Diplomacy Rather Than Military Counter-Terrorism, Thomas Mcdonnell

Elisabeth Haub School of Law Faculty Publications

This article examines from a legal and historical perspective (a) the United States’ implicit ratification of the Egyptian military’s overthrow of the first fairly and freely elected Egyptian president and (b) how the perceived U.S. support for the coup contributes to Islamic terrorism.

To guarantee that oil has been readily available (and during the Cold War to prevent the spread of communism), the U.S. has supported secular, authoritarian regimes in the Islamic world, including the House of Saud in Saudi Arabia, the Shah of Iran, Hosni Mubarak in Egypt, and, initially, Saddam Hussein in Iraq, not to mention autocratic leaders …

A Dire Need For Legislative Reform, Patrick Dowdle

Pace International Law Review

In Section I of this note, I will lay out the several reasons why 18 U.S.C. § 1651 needs reform. I will provide background information on modern day piracy, including its economic impact, and will then break down varying definitions of piracy and their applications in recent cases. I will explore the split in U.S. case law caused by the application of the UNCLOS definition of piracy in Dire, and will identify the quandaries that result from the UNCLOS definition. In Section II, I will address two specific problems stemming from § 1651 that came to light as a result …

A Theorization On Equity: Tracing Causal Responsibility For Missing Iraqi Antiquities And Piercing Official Immunity, Robert Bejesky

Pace International Law Review

Three weeks after the U.S.-led attack on Iraq, looters descended on the artifacts in the Iraq National Museum. Over ten thousand pieces were assumed destroyed or stolen, and the Coalition Provisional Authority estimated the losses at $12 billion. The gravity of the privation led the Security Council to include language in Resolution 1483 to restrict countries from trading in Iraq’s pillaged antiquities, and the U.S. Congress passed the Emergency Protection of Iraqi Cultural Antiquities Act of 2004 to enforce the measures. Several thousand pieces were recovered, but thousands remain missing. In March 2013, Hussein ash-Shamri, the head of the Iraqi …

Unmanned Aerial Vehicles: Legitimate Weapon Systems Or Unlawful Angels Of Death?, Michael J. Deegan

Pace International Law Review

Since the invasion of Afghanistan, the United States has utilized Unmanned Aerial Vehicles (UAVs) to locate, surveil and kill members of the Taliban, Al-Qaeda and its associated forces. Such killings have decimated the leadership of these groups and disrupted their operations. However, there are collateral effects from UAV killings including civilian deaths. These deaths increase resentment and hatred toward the US, which is channeled by terrorist groups to recruit new members and for local support. Moreover, targeted killings outside a combat zone have political and diplomatic consequences. This paper argues that the current uses of UAV are legal under international …

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 …

Support And Defend: Civil-Military Relations In The Age Of Obama, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

Part I discusses A More Perfect Military: How the Constitution Can Make Our Military Stronger by law professor Diane Mazur, a new book that examines recent civil-military relations in the United States. Her carefully constructed work maintains that since the Vietnam era, the United States Supreme Court has hewn the armed forces from general society in order to create a separate—and more socially conservative—sphere. Part II discusses The Decline and Fall of the American Republic by constitutional scholar Bruce Ackerman, a wise and wide-ranging book that argues that the nation’s polity is in decline and that the increasingly politicized armed …

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 …

Children At War: The Criminal Responsibility Of Child Soldiers, Megan Nobert

Pace International Law Review Online Companion

The problem of child soldiers is not going to go away. While it may not be a popular solution, child soldiers need to be prosecuted for the actions they commit during conflicts in addition to the prosecution of child soldier recruiters. Without legal ramifications, there is no incentive for the child soldier recruiters to stop their actions. This article explores how both child soldiers and their recruiters can be prosecuted for actions committed during conflict.

Foreword, Kenneth M. Karas

Pace Law Review

No abstract provided.

Keeping Boumediene Off The Battlefield: Examining Potential Implications Of The Boumediene V. Bush Decision To The Conduct Of United States Military Operations, Fred K. Ford

Pace Law Review

No abstract provided.

"Intelligence" Searches And Purpose: A Significant Mismatch Between Constitutional Criminal Procedure And The Law Of Intelligence-Gathering, Robert C. Power

Pace Law Review

No abstract provided.

The Founders, Executive Power, And Military Intervention, Christopher A. Preble

Pace Law Review

No abstract provided.

Classification Of Participants In Suicide Attacks And The Implications Of This Classification On The Severity Of The Sentence: The Israeli Experience In The Military Courts In Judea And Samaria As A Model To Other Nations, Amit Preiss, Chagai D. Vinizky

Pace Law Review

No abstract provided.

How Not To Process Stateless Enemies: A Review Of Andrew Mccarthy's Willful Blindness: A Memoir Of The Jihad, Timothy Connors

Pace Law Review

No abstract provided.