Law Commons^™

The Criminalisation Of The Intentional Destruction Of Cultural Heritage, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

This chapter examines how modern international law is protecting world heritage (‘the cultural heritage of all humanity’) by criminalising the intentional destruction of cultural heritage. In the digital age of the twenty-first century has witnessed a proliferation of deliberate acts of destruction, damaging and pillaging of World Heritage sites and their broadcasting via social media and the Internet. This chapter examines the evolving rationales for the intentional destruction of cultural heritage since the early twentieth century and international law’s response to such acts. First, there is an analysis of its initial criminalisation with the codification of the laws and customs …

Afghan Juvenile Code In Practice: Assessing Against International Juvenile Law, Christopher W. Carlson Jr.

Christopher W. Carlson Jr.

This Article assesses and compares Afghanistan’s juvenile procedures with the systems and norms advocated by the United Nations (“UN”). The Afghan Juvenile Code of 2005 is compared with the UN Convention on the Rights of the Child’s four key guidelines. The four guidelines include: (1) imprisonment of juveniles “shall be used only as a measure of last resort”; (2) any such imprisonment shall be “for the shortest appropriate period of time”; (3) juveniles who are in prison shall be “separated from adults”; and (4) they shall have the right to maintain “family contact.” These guidelines serve as a medium through …

Afghanistan: Prospects For Peace And Democratic Governance And The War On Terrorism, Muna Ndulo

Muna B Ndulo

No abstract provided.

Feminist Legal Theory As A Way To Explain The Lack Of Progress Of Women’S Rights In Afghanistan: The Need For A State Strength Approach, Isaac Kfir

Isaac Kfir

Cultural and religious practices are critical to explaining Afghanistan’s dreadful reputation concerning the preservation, protection, and promotion of women’s rights. Those advocating misogynistic practices assert that the calls for reforms challenge their religion and culture. Additionally, they also argue that women’s issues exist within the private realm. Accordingly, they assert that such reforms are not vital to the state and go beyond the established limits of state authority. Building on feminist legal theory, which distinguishes between the public and private spheres, I argue in Afghanistan misogynistic and discriminatory practices stem from contrived cultural and religious norms. Using the notion of …

"Kill 'Em And Sort It Out Later:" Signature Drone Strikes In International Humanitarian Law, Kristina Benson

K Benson

As of this writing, signature drone strikes have been used to kill thousands of people in Yemen, Pakistan, and Afghanistan. Signature strikes, where unknown individuals are targeted for their “signatures,” or behavioral patterns, have killed or injured hundreds of civilians, caused massive psychological trauma among civilian populations, complicated the relationship between the U.S. and Pakistan, and compromised the stated objective of winning hearts and minds. Even so, no scholarly articles have focused on signature strikes’ legality under International Humanitarian Law. This paper uses on-the-ground investigative reports and recently leaked, Justice Department legal analysis to argue that signatures are a problematic …

International Law And American Foreign Policy: Revisiting The Law Versus Policy Debate, Hengameh Saberi

Hengameh Saberi

American Exceptionalism And The International Law Of Self-Defense, Mary Ellen O'Connell

Mary Ellen O'Connell

No abstract provided.

Soviet Prisoners In The Afghan Conflict, Mary Ellen O'Connell

Mary Ellen O'Connell

No abstract provided.

Affirming The Ban On Harsh Interrogation, Mary Ellen O'Connell

Mary Ellen O'Connell

Beginning in 2002, lawyers for the Bush Administration began producing the now infamous legal memoranda on the subject of interrogation. The memoranda advise interrogators that they can torture people without fear of prosecution in connection with the so-called global war on terror. Much has been and will be written about the expedient and erroneous legal analysis of the memos. One issue at risk of being overlooked, however, because the memos emphasize torture, is that the United States must respect limits far short of torture in the conduct of interrogations. The United States may not use any form of coercion against …

Rights, Culture, And Crime: The Role Of Rule Of Law For The Women Of Afghanistan, Mark A. Drumbl

Mark A. Drumbl

This Article explores the role of rule of law in redressing crimes and human rights abuses committed against the women of Afghanistan. Mainstream discourse approaches the situation binarily, obliging women to choose between international and often distant human rights, on the one hand, or proximate cultural/religious norms, on the other, in order to adjudicate gender crimes. This can lead either to externalized justice or, in the case of the implementation of Afghan local law, to renewed victimization of women in the name of redressing abuses suffered by other women. Local law in Afghanistan is reflected in codes such as the …

Due Process In American Military Tribunals After September 11, 2001, Gary Shaw

Gary M. Shaw

The Authorization for Use of Military Force ("AUMF") provides broad powers for a president after September 11, 2001. President Bush, under the AUMF, claimed he had the power to hold "enemy combatants" without due process. This gave rise to two questions that the article addresses: "Could they be held indefinitely without charges or proceedings being initiated? If proceedings had to be initiated, what process was due to the defendants?"

Greetings And Grievances: A Letter From Afghan Professors, Laurel Oates

Laurel Currie Oates

No abstract provided.

Lessons From Iraq And Afghanistan: Is It Time For The United States To Sign The Ottawa Treaty And End The Use Of Landmines?, Arthur L. Rizer Iii

Arthur L. Rizer III

This article begins with a short history of how landmines have been used in war, followed by a survey of the law of landmines and how the United States has participated in the international debate over these tools of war. Next, this article will advocate for the United States to take a new direction in landmine law by signing and ratifying the Ottawa Treaty. Specifically, that the United States has learned firsthand the devastation that improvised explosive devices (IEDs) have had on its service members and those lessons should persuade the nation to take a change direction on this important …

Overcoming The Unfortunate Legacy Of Haditha, The Stryker Brigade “Kill Team”, And Pantano: Establishing More Effective War Crimes Accountability By The United States, Alan F. Williams

Alan F. Williams

In the years since September 11, 2001 U.S. personnel have been implicated in many incidents involving possible war crimes as defined by the Geneva Conventions. The author critically examines the current U.S approach to handling war crimes and concludes that the process is fundamentally flawed and has repeatedly produced unjust outcomes, particularly in a series of high profile cases that have greatly damaged the position of the U.S. in the international community. The author concludes that not only has the U.S. lost the respect of the international community, but has also simultaneously increased the likelihood that U.S. personnel who serve …

Overcoming The Unfortunate Legacy Of Haditha, The Stryker Brigade “Kill Team”, And Pantano: Establishing More Effective War Crimes Accountability By The United States, Alan F. Williams

Alan F. Williams

In the years since September 11, 2001 U.S. personnel have been implicated in many incidents involving possible war crimes as defined by the Geneva Conventions. The author critically examines the current U.S approach to handling war crimes and concludes that the process is fundamentally flawed and has repeatedly produced unjust outcomes, particularly in a series of high profile cases that have greatly damaged the position of the U.S. in the international community. The author concludes that not only has the U.S. lost the respect of the international community, but has also simultaneously increased the likelihood that U.S. personnel who serve …

Overcoming The Unfortunate Legacy Of Haditha, The Stryker Brigade “Kill Team”, And Pantano: Establishing More Effective War Crimes Accountability By The United States, Alan F. Williams

Alan F. Williams

In the years since September 11, 2001 U.S. personnel have been implicated in many incidents involving possible war crimes as defined by the Geneva Conventions. The author critically examines the current U.S approach to handling war crimes and concludes that the process is fundamentally flawed and has repeatedly produced unjust outcomes, particularly in a series of high profile cases that have greatly damaged the position of the U.S. in the international community. The author concludes that not only has the U.S. lost the respect of the international community, but has also simultaneously increased the likelihood that U.S. personnel who serve …

New Approaches To Reducing And Mitigating Harm To Civilians, Greg Mcneal

Greg McNeal

The wars in Iraq and Afghanistan highlighted the strategic importance of the U.S. commitment to civilian protection. Both wars were eventually fought as a counterinsurgency (COIN) and both revealed how protecting civilians is a central feature of COIN. This chapter examines the importance of civilian casualty mitigation in U.S. counterinsurgency operations, it describes the theoretical and practical lessons learned regarding civilian casualties and situates them in a broader strategic context. The chapter also describes the U.S. military’s newest doctrinal publication aimed specifically at preventing and mitigating harm to civilians. The chapter concludes noting that protecting the population and winning hearts …

Dangerous Precedent: America's Illegal War In Afghanistan, Ryan T. Williams

Ryan T. Williams

Osama bin Laden’s death has lead many to question the efficacy of America’s continued fighting in Afghanistan. Too often dismissed is any meaningful discussion of the legality of the war on terror in Afghanistan, where the U.S. has promised to keep fighting until at least 2014. The use of force in international law is generally forbidden, except under three circumstances: in self-defense, pursuant to a United Nations Security Council resolution, or with consent from the leader of an invaded state. After a careful examination of all three, it is apparent that America’s continued fighting in Afghanistan, more than a decade …

The Layha For The Mujahideen: An Analysis Of The Code Of Conduct For The Taliban Fighters Under Islamic Law, Muhammad Munir Dr.

Dr. Muhammad Munir

The following article focuses on the Islamic Emirate of Afghanistan Rules for the Mujahideen to determine their conformity with the Islamic jus in bello. This code of conduct, or Layha, for Taliban fighters highlights limiting suicide attacks, avoiding civilian casualties, and winning the battle for the hearts and minds of the local civilian population. However, it has altered rules or created new ones for punishing captives that have not previously been used in Islamic military and legal history. Other rules disregard the principle of distinction between combatants and civilians and even allow perfidy, which is strictly prohibited in both Islamic …

Supply And Demand Of Weapons In Political Uprisings: Past Lessons, Current Applications, And Suggestions For Guidelines In The Future, Katherine E. Peterson

Katherine Peterson

In the past, the United States has provided support to foreign states or political factions within a foreign state in the context of an armed conflict. The motivation for these actions has ranged from protecting allies or private capital interests to keeping the former Soviet Union at bay. These interests are important considerations for the Government to take into account when forming and carrying out its foreign policy; however, it is unnerving that this support seems to have often been given with a focus on achieving short-term goals without much regard to the potential consequences—domestic terrorist attacks, further international conflict, …

A United States Marine General Should Replace General Mcchrystal, Christopher C. Cooper Dr.

Christopher C. Cooper Dr.

General McChrystal’s insubordinate statements about the President and Vice President of the United States represent a violation of the Uniform Code of Military Justice (UCMJ). What the Obama administration should take from this unfortunate event is that the top commander in Afghanistan (and in any war for that matter) should be a United States Marine general. Marines stay fit. Marines follow orders. Marine officers set the example. We must be critical of General McChrystal for setting the most abhorrent of examples for the men and women of the U.S. Army.

Colonial Cartographies And Postcolonial Borders: The Unending War In And Around Afghanistan, Tayyab Mahmud

Tayyab Mahmud

Many of today’s pervasive and intractable security and nation-building dilemmas issue from the dissonance between the prescribed model of territorially bounded nation-states and the imprisonment of postcolonial polities in territorial straitjackets bequeathed by colonial cartographies. With a focus on the Durand Line, the border between Afghanistan and Pakistan and the epicenter of the prolonged war in the region, this article explores the enduring ramifications of the mutually constitutive role of colonialism and modern law. The global reach of colonial rule reordered subjects and reconfigured space. Fixed territorial demarcations of colonial possessions played a pivotal role in this process. Nineteenth century …

Square Peg In A Round Hole: Government Contractor Battlefield Tort Liability And The Political Question Doctrine, Chris Jenks

Chris Jenks

Recent assertions of the political question doctrine by battlefield contractor defendants in tort litigation have brought new life to the doctrine while raising new questions. The lawsuits stem from incidents in both Iraq and Afghanistan and include plaintiffs ranging from local nationals suing contract interrogators and interpreters, to contract employees suing another contractor following insurgent attacks, to U.S. service members suing contractors after vehicle and airplane crashes. The lawsuits involve tort claims, which on their face do not conjure up images of a constitutional power struggle, but in at least fifteen cases thus far contractor defendants have asserted the political …

Public Awareness Of Human Rights: Distortions In The Mass Media, Eric Heinze, Rosa Freedman

Prof. Eric Heinze, Queen Mary University of London

This article examines distortions of human rights reporting in the mass media. We examine human rights coverage in four of the most influential newspapers, two from the US and two from the UK. The US papers are The New York Times and The Wall Street Journal. The British papers are The Financial Times and The Guardian.

Most current scholarship on international human rights draws its information from specialized sources, such as the published reports of intergovernmental and non-governmental organisations. Wholly absent has been any systematic study of the mass media. To date, no one has examined the dominant media agencies, …

Human Rights, Humanitarian Law And The "War On Terrorism" In Afghanistan, Peter G. Danchin

Peter G. Danchin

No abstract provided.

Forcing Them To Be Free: Bush's Project For The Muslim World, Ali Khan

Ali Khan

Employing evangelical rhetoric, the Bush administration has launched an ambitious plan to bring democracy to the Muslim world. Several past presidents of the United States have endorsed the concept of popular government for various reasons. President George W. Bush draws on democracy to fight Islamist terrorism and spread liberty. The proposed democratisation of Muslim nations embodies a complex blend of American self-interest and the paternalistic American desire to reform the world. It is unclear whether the democracy initiative will survive the Bush government. The next president may scrap the entire project as unworkable or too expensive. However, if the US …

Rushing To Break The Law? “The Bush Doctrine” Of Pre-Emptive Strikes And The Un Charter Regime On The Use Of Force, Jackson N. Maogoto

Jackson Nyamuya Maogoto

The issues that the Article tackles are obviously complex and lengthy, however the Article has as its modest goal the exploration of the general arguments that the use of force to counter terrorism raises under the UN Charter regime on the use of force. In Part II, the Article gives an overview of the UN and terrorism noting the ambivalence in addressing the issue that has contributed to the confusion over a precise definition in large part reflective of the basic disagreement over the elements of terrorism itself. Part II then adopts a definition for the purposes of this Article. …

Report Of The Committee Of Experts On Nation Rebuilding In Afghanistan, Paul Williams, Michael Scharff

Paul Williams

With the destruction of the Taliban regime, the international community is turning its attention toward the establishment of an interim government consistent with the Bonn Accords, and the identification of a process for selecting a more long-term governing arrangement. As is well known, these first steps toward establishing a new government in Afghanistan are the beginning of a long and difficult process for re-establishing peace. Absent a comprehensive and attainable plan for nation rebuilding in Afghanistan, the United States may find that despite its victory on the battle- field, it may be unable to adequately achieve its long term security …