Law Commons^™

Ukraine's Push To Prosecute Aggression: Implications For Immunity Ratione Personae And The Crime Of Aggression, Rebecca Hamilton

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Russia’s aggression against Ukraine dates back to its 2014 annexation of Ukraine’s southern peninsula, Crimea. It was Russia’s brazen full-scale invasion of Ukraine on February 24, 2022, however, that captured global attention and put the crime of aggression – the resort to war in violation of the UN Charter3 – in the spotlight.

Who Owns The Rules Of War In Today's Post-Post-Cold War?, Kenneth Anderson

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Professor Gabriella Blum's The Paradox of Power observes that international humanitarian law (IHL) has been in a long. term evolution toward putting the principle of "humanitarianism" and civilian protection at its normative and legal center. The Lecture (on which this essay is a commentary) identifies several reasons for this, in particular (within and across liberal democratic societies) social acceptance of IHL as law but also as socially internalized norms that give IHL broad moral legitimacy. Accepting The Paradox of Power's main propositions as cor rect, this Commentary extends its account in several ways. First, The Paradox of Power's combination of …

Why The Hurry To Regulate Autonomous Weapon Systems-But Not Cyber-Weapons?, Kenneth Anderson

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No abstract provided.

A Tradition At War With Itself: A Reply To Professor Rana's Review Of America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai

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This essay responds to Professor Aziz Rana's review essay, "The Many American Constitutions," 93 Texas Law Review 1193 (2015).

He contends: (1) my portrayal of American constitutionalism might contain a “hidden” teleological understanding of the development of constitutional law; (2) my notion of "conventional sovereignty" sometimes seems content-free and at other times "interlinked with liberal egalitarianism"; and (3) a focus on failed constitutions "inadvertently tends to compartmentalize the overall tradition."

I answer in the following ways: (1) I reject any sense that constitutional law has moved in an arc of steady progress toward Enlightenment and instead embrace a tradition of …

Three Arguments About War, Robert Tsai

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The rise of the United States as a military power capable of mounting global warfare and subduing domestic rebellions has helped produce a corresponding shift in the language of liberal constitutionalism. Arguments invoking war have become prevalent, increasingly creative and far-reaching, and therefore an emerging threat to rule of law values. It is not only legal limits on the capacity to wage war that have been influenced by the ascendance of war-inspired discourse; seemingly unrelated areas of law have also been reshaped by talk of war, from the constitutional rules of criminal procedure to the promise of racial and sexual …

Pre-Crime Restraints: The Explosion Of Targeted, Non-Custodial Prevention, Jennifer Daskal

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This Article exposes the ways in which noncustodial pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples — terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, criminal law procedural protections do not apply. They have exploded largely unchecked — subject to little more than bare rationality review and negligible procedural protections — and without any coherent theory as to …

After The Aumf, Jennifer Daskal

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Over a dozen years later, the AUMF — which has never been amended — remains the principal source of the U.S. government’s domestic legal authority to use military force against al Qaeda and its associates, both on the battlefields of Afghanistan and far beyond. But even as the statutory framework has remained unchanged, the facts on the ground have evolved dramatically, leading some to call for a new AUMF. In short, calls for a new framework statute to replace the AUMF are unnecessary, provocative, and counterproductive; they perpetuate war at a time when we should be seeking to end it. …

The Case For Drones, Kenneth Anderson

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American University, WCL Research Paper No. 2014-12Abstract:This cover story in Commentary magazine (7500 words) offers a defense of drone warfare and targeted killing against legal and ethical claims made by both the American libertarian right and the American and international left. It addresses empirical claims of "excessive" civilian casualties, as well as ethical arguments that drones make the resort to force not just easier, but "too easy," and that in order to deter "overuse" of armed force, soldiers (and implicitly civilians) need to be exposed to otherwise unnecessary risk. It explains how drone technology and targeted killing fit together in …

Crashing The Misdemeanor System, Jenny M. Roberts

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With “minor crimes” making up more than 75% of state criminal caseloads, the United States faces a misdemeanor crisis. Although mass incarceration continues to plague the nation, the current criminal justice system is faltering under the weight of misdemeanor processing.

Operating under the “broken windows theory,” which claims that public order law enforcement prevents more serious crime, the police send many petty offenses to criminal court. This is so even though the original authors of the theory noted that “[o]rdinarily, no judge or jury ever sees the persons caught up in a dispute over the appropriate level of neighborhood order” …

The Secret "Kill List" And The President, Kenneth Anderson

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No abstract provided.

Preempting Justice: Precrime In Fiction And In Fact, Mark Niles

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No abstract provided.

Reconsidering Gobitis: An Exercise In Presidential Leadership, Robert Tsai

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In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah's Witnesses who refused to pay homage to the American flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of …

Preventing, Implementing And Enforcing International Humanitarian Law, Juan E. Mendez

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No abstract provided.

The Assumptions Behind The Assumptions In The War On Terror: Risk Assessment As An Example Of Foundational Disagreement In Counterterrorism Policy, Kenneth Anderson

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This 2007 article (based around an invited conference talk at Wayne State in early 2007) addresses risk assessment and cost benefit analysis as mechanisms in counterterrorism policy. It argues that although policy is often best pursued by agreeing to set aside deep foundational differences, in order to obtain a strategic plan for an activity such as counterterrorism, foundational differences must be addressed in order that policy not merely devolve into a policy minimalism that is always and damagingly tactical, never strategic, in order to avoid domestic democratic political conflict. The article takes risk assessment in counterterrorism, using cost benefit analysis, …

Goodbye To All That? A Requiem For Neoconservatism, Kenneth Anderson

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American University, WCL Research Paper No. 2008-74Abstract:The war on terror and the war in Iraq have occasioned a ferocious debate over the Bush administration's commitment to neo-conservatism as the guiding philosophy behind war aiming at democratic transformation. Two recent, widely noticed 2006 books have attacked neo-conservatism - one, by a former neoconservative, Francis Fukuyama (After the Neocons: America at the Crossroads), and a second, by a centrist liberal, Peter Beinart (The Good Fight). Each seeks to anatomize neo-conservatism and what, in each author's view, has gone wrong with it; each seeks to offer an alternative foreign policy.This review essay examines …

U.S. Counterterrorism Policy And Superpower Compliance With International Human Rights Norms, Kenneth Anderson

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This essay, originally prepared for a symposium on Guantanamo and international law, provides an brief overview of the elements that a comprehensive US counterterrorism should encompass. This overview is set against the question of how the US, as the world's superpower, ought to address its international law obligations. The essay then sets that question against the still-further question of what it means to be the superpower in a world that some believe is gradually evolving into a multipolar world, but which is currently a world of a conjoined US-international global system of security.

The essay defends the concept of counterterrorism …

Prospects For Human Rights Advocacy In The Wake Of September 11, 2001, Juan E. Mendez, Javier Mariezcurrena

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No abstract provided.

The Role Of Justice In The Former Yugoslavia: Antidote Or Placebo For Coercive Appeasement?, Paul Williams, Patricia Taft

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Throughout the 1990's, the approach of the European Union and the United States to the conflicts in the former Yugoslavia was one of coercive appeasement. By most professional and historical accounts, this approach was a failed one, with the consequences that over 250,000 civilians were killed, thousands raped and millions displaced. Throughout the conflict, the institutions of justice created by the international community frequently served as a mere placebo rather than an antidote to the dominant approach of coercive appeasement. Frequently key policymakers actively sought to constrain the role of justice during the peace building process. At times during the …

The Functions Of Justice And Anti-Justice In The Peace-Building Process, Paul Williams, Michael Scharff

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Recently, there has been increasing use of the tool of justice/accountability in the peace-building process. Yet, the norms of justice, while increasingly invoked, is seldom defined in the context of peace-building. To understand the role that justice has played and has the potential of playing in the peace-building process, it is important first to define the norm as well as articulate its functions. This article therefore serves as an introduction to The Case Western Reserve Journal of International Law’s “Role of Justice in Building Peace” Symposium Issue by providing a detailed definitional description of the justice norm. In addition, it …

The Role Of The United States Military Lawyer In Projecting A Vision Of The Laws Of War, Kenneth Anderson

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No abstract provided.

What To Do With Bin Laden And Al Qaeda Terrorists?: A Qualified Defense Of Military Commissions And United States Policy On Detainees At Guantanamo Bay Naval Base, Kenneth Anderson

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This article, published in a special post 9-11 issue of the Harvard Journal of Law & Public Policy, offers a defense of the view that terrorists such as Osama Bin Laden should be tried, if captured, outside of regular US civilian courts and in some form of military commission.

The article argues that terrorists should be seen as criminals as well as enemies of the United States. Criminals who are simply deviants from the domestic social order are properly dealt with within the constitutionally constituted civilian court structure. Enemies who are not also criminals - legal combatants - are properly …

Human Rights Policy In The Age Of Terrorism, Juan E. Mendez

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No abstract provided.

When Justice Goes To War: Prosecuting Terrorists Before Military Commissions, Robert K. Goldman, Diane Orentlicher

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No abstract provided.

Ethical And Humanitarian Concerns Add A New Dimension To International Security In The Post-Cold War World, Juan E. Mendez

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No abstract provided.

Guest Editor's Introduction To The Symposium: War And The United States Military, Kenneth Anderson

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Millennia come and millennia go, and the fact of war remains unchanged. People still fight for territory, the land of their fathers, Lebensraum, control of the seas, gold, silver and diamonds, oil, water, pillage and the spoils of war, resources of all kinds, the glorification of leaders, gods of many faiths, politics, ideology, conquest, the establishment, peace and stability of empires, the right to be left alone, and sometimes, so we are told, justice, resistance to aggression, and the preservation of peace. Measured in millennial time, very little about war has changed, and, further, nothing distinguished the passage from 1999 …

The Norm Of Justice And The Negotiation Of The Rambouillet/Paris Peace Accords, Paul Williams

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No abstract provided.

Rape In Wartime: Redress In United States Courts Under The Alien Tort Claims Act, Susana Sácouto

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No abstract provided.

Task Force Statement Of The Twentieth Century Fund's Task Force On Apprehending Indicted War Criminals: Meeting The Obligations Of Justice, Paul Williams

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No abstract provided.

Swapping Amnesty For Peace And The Duty To Prosecute Human Rights Crimes, Diane Orentlicher

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No abstract provided.

The Legal Regime Governing The Conduct Of Operation Desert Storm, Robert K. Goldman

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No abstract provided.