Law Commons^™

The Tokyo Trial At Richmond: Digitizing The Sutton Collection Of Documents From The International Military Tribunal For The Far East, Suzanne Corriell

Law Faculty Publications

As an ongoing project, the effort to digitize and present the Sutton Collection is far from complete. Our effort has the potential to become a leading resource for materials relating to the Tokyo trial and, with the help of our faculty partners, to demonstrate relevancy of the trial to current issues in international criminal law and to the development of Japan’s role in modern East Asia. As the project team learns more about the collection, consults with similar projects, and continues to implement innovative applications, processes are constantly updated. The coming year should bring further progress, and we look forward …

The Military At Fort St. Joseph, Scott T. Macpherson

Fort St. Joseph Archaeological Project

Showing the Flag, Troupes de la Marine, Militia, and Fort St. Joseph’s Military Actions.

Targeted Killing, Human Rights And Ungoverned Spaces: Considering Territorial State Human Rights Obligations, John C. Dehn

Faculty Publications & Other Works

No abstract provided.

Fort St. Joseph And The American Revolution, Scott T. Macpherson

Fort St. Joseph Archaeological Project

Bennett’s Expedition 1779, Raid on Fort St. Joseph 1780, The “Spanish Raid” 1781, Deportation of the French, and Demise of Fort St. Joseph.

Drone Strike Casualty Estimates Likely Understated, Human Rights Clinic

Human Rights Institute

NEW YORK — The U.S. government should provide an official accounting on who is being killed by drone strikes, said a new report released today by Columbia Law School’s Human Rights Clinic.

Law Of War Manuals And Warfighting: A Perspective, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Too Rough A Justice: The Ethiopia-Eritrea Claims Commission And Civil Liability For Claims For Rape Under International Law, Ryan S. Lincoln

Articles

The developments in international law prohibiting rape during armed conflict have grown at a rapid pace in recent decades. Whereas rape had long been considered an inevitable by-product of armed conflict, evolution in international humanitarian law (IHL) has relegated this conception mostly to the past. The work of international criminal tribunals has been at the forefront of this change, developing the specific elements of the international crime of rape, and helping to change the perception of rape in international law violations of IHL, however also give rise to civil liability Despite the advances with respect to rape made in the …

Could This Train Make It Through: The Law And Strategy Of The Gold Train Case, Charles Tiefer, Jonathan W. Cuneo, Annie Reiner

All Faculty Scholarship

In 1944-45, the Nazis seized personal belongings of the Hungarian Jewish population and dispatched some of the most valuable of them on a train. The United States Army took control of this "Gold Train" and gave reassurances that it would keep the valuables safe. However, the items were plundered by individual soldiers, including officers, and diverted to various uses. After decades of dormancy, a Presidential Commission exposed the facts, but the government still did not right the wrong — until there was litigation.

The "Gold Train" case (Rosner v. United States) represents a measure of justice for the victimized community …

The Legal Dilemma Of Guantanamo Detainees From Bush To Obama [Updated], Linda A. Malone

Faculty Publications

The stage for the Guantanamo detainees’ commission proceedings was set by the interplay between the Executive’s detention powers and the Judiciary’s habeas powers. The Bush administration turned to Congress to provide less than what was required by the court, instead of the minimum deemed necessary to comply with each decision, or to explore another legal argument for not complying. This article examines how the law for the Guantanamo detainees has been shaped by the US courts and by Congress. The article begins by observing the guidelines issued by the Supreme Court for compliance with the constitutional and humanitarian law requirements, …

The Un "Surrogate State" And The Foundation Of Refugee Policy In The Middle East, Michael Kagan

Scholarly Works

Many challenges surrounding refugee protection relate to a de facto shift of responsibility from sovereign governments to the UN Refugee Agency (UNHCR) to directly administer refugee policy. This phenomenon is legally anomalous, and it is UNHCR policy to avoid the operation of such "parallel structures." Yet the existence of a UN "surrogate state" offers important advantages to some host governments, which makes state-to- UNHCR responsibility shift difficult to reverse. Using the Arab Middle East as a case study, this article argues that, while not ideal, UNHCR's state substitution role offers important symbolic and material benefits to governments that host refugees …

The Intersection Of Law And Ethics In Cyberwar: Some Reflections, Charles J. Dunlap Jr.

Faculty Scholarship

The purpose of this short essay is to reflect upon a few issues that illustrate how legal and ethical issues intersect in the cyber realm. Such an intersection should not be especially surprising., Historian Geoffrey Best insists, “[I]t must never be forgotten that the law of war, wherever it began at all, began mainly as a matter of religion and ethics . . . “It began in ethics” Best says “and it has kept one foot in ethics ever since.” Understanding that relationship is vital to appreciating the full scope of the responsibilities of a cyber-warrior in the 21st century.

Do We Need New Regulations In International Humanitarian Law? One American’S Perspective, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Katyn Forest Massacre: Of Genocide, State Lies, And Secrecy, Milena Sterio

Law Faculty Articles and Essays

The Soviet secret police murdered thousands of Poles near the Katyn Forest, just outside the Russian city of Smolensk, in the early spring of 1940. The Soviets targeted members of the Polish intelligentsia-military officers, doctors, engineers, police officers, and teachers-which Stalin, the Soviet leader, sought to eradicate preventively. At the start of World War II, the Soviet Union viewed Poland as attractive territory, to be conquered and potentially annexed after the war. The Katyn massacre was not discovered until 1943, by the Germans, who instantly blamed the Soviets. The latter, however, blamed the Germans, and the Western Allies begrudgingly accepted …

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 …

Lessons From Social Psychology For Complex Operations, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

This short essay looks at several social forces that powerfully affect human behavior, often trumping individual “character,” personality, knowledge, and even deeply held moral beliefs. Specifically, this essay looks briefly at issues of obedience, conformity, and group polarization, discussing the ways in which they can affect and distort individual behavior. Ultimately, this essay suggests, understanding these dynamics can have important implications for how we think about counterinsurgency and stability operations.

Ethical Issues Of The Practice Of National Security Law: Some Observations, Charles J. Dunlap

Faculty Scholarship

No abstract provided.

Responses To The Five Questions, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Politics And Prosecutions, From Katherine Fite To Fatou Bensouda, Diane Marie Amann

Scholarly Works

Based on the Katherine B. Fite Lecture delivered at the 5th Annual International Humanitarian Law Dialogs in Chautauqua, New York, this essay examines the role that politics has played in the evolution of international criminal justice. It first establishes the frame of the lecture series and its relation to IntLawGrrls blog, a cosponsor of the IHL Dialogs. It then discusses the career of the series' namesake, Katherine B. Fite, a State Department lawyer who helped draft the Charter of the International Military Tribunal at Nuremberg and who was, in her own words, a "political observer" of the proceedings. The essay …

Book Review. The Legacy Of The International Criminal Tribunal For The Former Yugoslavia Edited By B. Swart, A. Zahar And G. Sluiter, Timothy W. Waters

Articles by Maurer Faculty

No abstract provided.

The Civilian Impact Of Drones: Unexamined Costs, Unanswered Questions, Human Rights Clinic, Center For Civilians In Conflict (Civic)

Human Rights Institute

Since 2008, the US has dramatically increased its lethal targeting of alleged militants through the use of weaponized drones—formally called unmanned aerial vehicles (UAV) or remotely piloted aircraft (RPA). Novel technologies always raise new ethical, legal, and practical chal- lenges, but concerns about drone strikes have been heightened by their role in what might colloquially be termed “covert drone strikes” outside the established combat theater of Af- ghanistan. Airstrike campaigns in Pakistan, Yemen, and Somalia are conducted with a degree of government secrecy enabled by the fact that there are few supporting US ground troops and/or CIA agents in these …

Omar Khadr: Domestic And International Litigation Strategies For A Child In Armed Conflict Held At Guantanamo, Richard J. Wilson

Articles in Law Reviews & Other Academic Journals

This essay explores the intersections and tensions between international human rights law and international humanitarian law as those two doctrinal areas played out in the concrete situation of Omar Khadr, a Canadian child detainee at Guantanamo Bay. Particular focus is given to how issues regarding his youth were addressed by the many tribunals involved: in the multiple venues of courts in the United States and Canada, and in international human rights bodies. The issues on Omar’s youth span many contexts, raising judicial questions regarding the legality of his detention, his treatment and separation from adults while detained, jurisdiction to prosecute …

A Whole Lot Of Substance Or A Whole Lot Of Rhetoric? A Perspective On A Whole-Of-Government Approach To Security Challenges, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Unfinished Business: A Discussion Of Remedies For Victims Of Involuntary Dismissal Under Don't Ask, Don't Tell And Its Predecessor, Toward A True Reconciliation, Robert I. Correales

Scholarly Works

By examining another dark chapter in American history-the internment of Japanese Americans during World War II-this Article makes a moral and legal case for a more complete resolution of harms to victims of anti-gay military discrimination. The successful reparations campaign waged by Japanese Americans who were interned during World War II has provided both inspiration and a helpful blueprint for reparation movements worldwide. This article seeks to show that by observing the parallels between these two dark periods, it is clear that DADT's historical chapter cannot be closed until reparations are paid to those who were victimized by the policies …

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 …

"The Essence Of A Free Society": The Executive Powers Legacy Of Justice Stevens And The Future Of Foreign Affairs Deference, Dawn E. Johnsen

Articles by Maurer Faculty

After 9/11, Justice John Paul Stevens insisted the United States maintain its foundational commitment to the rule of law—the very “essence of a free society.” Justice Stevens led the Court’s scrutiny and rejection of early Bush Administration policies regarding the detention and prosecution of suspected terrorists. Since it lost Justice Stevens’s passionate and principled voice in 2008, the Court has not addressed the scope of the President’s military detention authority. This Article considers Justice Stevens’s role in the Court’s altered stance, and also a complementary explanation: the Obama Administration’s improved interpretation and exercise of executive authority. Informed and inspired by …

Can The President And Congress Establish A Legislative Veto Mechanism For Jointly Drawing Down A Long And Controversial War?, Charles Tiefer

All Faculty Scholarship

In the simplest case: Congress declares war, and does not intrude on the President's solo decision about when the troops come home. However, in our time, long wars, such as in Afghanistan and Iraq, occur with great tension between the two elected branches of government over the pace of a drawdown. Sometimes it may be a hawkish Congress that disagrees with a President reluctant to continue the war at full troop levels. To find a joint way to draw down the American troops in the war zone, they may seek congressional mechanisms to resolve their differences with interactive processes. Then, …

Disclosure’S Effects: Wikileaks And Transparency, Mark Fenster

UF Law Faculty Publications

Constitutional, criminal, and administrative laws regulating government transparency, and the theories that support them, rest on the assumption that the disclosure of information has transformative effects: disclosure can inform, enlighten, and energize the public, or it can create great harm and stymie government operations. To resolve disputes over difficult cases, transparency laws and theories typically balance disclosure’s beneficial effects against its harmful ones—what I have described as transparency’s balance. WikiLeaks and its vigilante approach to massive document leaks challenge the underlying assumption about disclosure’s effects in two ways. First, WikiLeaks’ ability to receive and distribute leaked information cheaply, quickly, and …

The Constitutional Bond In Military Professionalism: A Reply To Professor Deborah N. Pearlstein, Diane H. Mazur

UF Law Faculty Publications

The Soldier, the State, and the Separation of Powers is important and very persuasive. (In this Response, I will call it Separation of Powers to distinguish it clearly from The Soldier and the State,7 the classic work on civil–military relations referenced in the title.) Professor Pearlstein asks the right questions and reaches the right conclusions—no small task when law professors have typically deferred to expertise in other fields, if not avoided the subject entirely.8 What do we mean by civilian control of the military? Where is the line between a military that offers its professional expertise to civilian decision makers …

Cyber Security Without Cyber War, Mary Ellen O'Connell

Journal Articles

Which government agency should have primary responsibility for the Internet? The USA seems to have decided this question in favour of the military—the US military today has the largest concentration of expertise and legal authority with respect to cyberspace. Those in the legal community who support this development are divided as to the appropriate legal rules to guide the military in its oversight of the Internet. Specialists on the international law on the use of force argue that with analogy and interpretation, current international law can be applied in a way that allows great freedom without sending the message that …

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

Publications

No abstract provided.