Law Commons^™

Targeting Co-Belligerents, Jens David Ohlin

Cornell Law Faculty Working Papers

One of the central controversies of the targeted killing debate is the question of who can be targeted for a summary killing. The following chapter employs a novel normative framework: how to link an individual terrorist with a non-state group that threatens a nation-state. Six linking principles are catalogued and analyzed, including direct participation, co-belligerency, membership, control, complicity and conspiracy. The analysis produces counter-intuitive results, especially for civil libertarians who usually eschew status principles in favor of conduct principles. The concept of membership, a status concept central to international humanitarian law, is ideally suited to situations, like targeted killings, that …

The Age Of Impunity: Using The Duty To Extradite Or Prosecute And Universal Jurisdiction To End Impunity For Acts Of Terrorism Once And For All, Sarah Mazzochi

Northern Illinois University Law Review

Impunity remains one of the greatest challenges facing international peace and security today. This article seeks to lay out possible changes to current international law that are necessary to combat impunity, particularly regarding the international crime of terrorism. Part II will lay out what terrorism is and the obstacles the international community faces in achieving a singular definition for the word. Part II will also discuss the different approaches various conventions have taken in defining terrorism and will propose a concise definition the international community may want to adopt. Part II will end with calling for terrorism to be included …

The Constitutional Infirmity Of Warrantless Nsa Surveillance: The Abuse Of Presidential Power And The Injury To The Fourth Amendment, Robert M. Bloom, William J. Dunn

Robert M. Bloom

In recent months, there have been many revelations about the tactics used by the Bush Administration to prosecute their war on terrorism. These stories involve the exploitation of technologies that allow the government, with the cooperation of phone companies and financial institutions, to access phone and financial records. This paper focuses on the revelation and widespread criticism of the Bush Administration’s operation of a warrantless electronic surveillance program to monitor international phone calls and emails that originate or terminate with a United States party. The powerful and secret National Security Agency heads the program and leverages its significant intelligence collection …

Keynote Address To The 20th Annual Fulbright Symposium – International Law In A Time Of Change, Michael Alsuel Ntumy

Annual Survey of International & Comparative Law

The theme of this symposium is International Law in a Time of Change. Considering the events that have engulfed international law in recent times, it is hard to imagine a more important or timely topic than this one. Whether one focuses on the rules, principles and concepts, or the institutions of international law, there is no escape from the fact that these things all bear the indelible imprint of change. This fitting theme has undoubtedly been influenced, I believe, by the "Change" campaign of President Barrack Obama, the “new Prince of Change.” For this reason, I am inclined to …

The Special Tribunal For Lebanon’S Unique Beginnings, Its Political Opposition And Role As Model For Future Ad Hoc Criminal Tribunals For Terrorism Prosecution, Daniel Runge

Daniel Runge

This article suggests that the Special Tribunal for Lebanon in many respects can serve as a model for future ad hoc international tribunals for the prosecution of terrorism. The article discusses the assassination of Rafiq Hariri and the investigation that followed, leading to the tribunal’s formation. After this background, the formation of the tribunal is analyzed. Initially designed as a hybrid international tribunal based on a treaty between the United Nations and Lebanon, the tribunal was ultimately established unilaterally by the United Nations Security Council following the failure of the Lebanese government to approve the treaty. The article then discusses …

Xviii Concluding Remarks: Loac And Attempts To Abuse Or Subvert It, Yoram Dinstein

International Law Studies

No abstract provided.

Targeting Anwar Al-Aulaqi: A Case Study In U.S. Drone Strikes And Targeted Killings, Benjamin R. Farley

Benjamin R Farley

Anwar al-Aulaqi is a natural born American citizen of Yemeni descent who was reportedly added to U.S. targeted killing lists in early 2010. The United States argues that al-Aulaqi is a lawful target due either to his role in an ongoing armed conflict between the United States and Al Qaeda or under the auspices of self-defense. In fact, the United States relies on self-defense and armed conflict in general to justify the lawfulness of its targeted killing programs. When applicable, each of these frameworks provides legal authority for a state to use force against an individual. However, neither framework provides …

Standing Our Ground: A Study Of Southeast Asian Counterterrorism Conventions Contributing To A Peaceful Existence, Major Dennis Hager

University of Miami National Security & Armed Conflict Law Review

Less than a year after the September 11th attacks on New York and Washington D.C., terrorist groups in Southeast Asia carried out a number of high profile attacks in the region. In an area ripe for global terrorism the effects of counter‐terrorism conventions can be measured and the possibility of progress in the global war observed. The regional cooperation inherent in these conventions has been crucial to the success of peace for this region, and is especially significant considering the immense cultural and political differences among these nations.

With fourteen official languages and over 500 million people living in an …

Reliably Unreliable: The Problems With Piecemeal Federal Transmission And Grid Reliability Policies, Joshua P. Fershee

Joshua P Fershee

In the past, electricity was considered a local concern, but over time major portions of the electrical grid have become regional, national, and even international in scope. Electricity regulation has evolved into a complex web of multijurisdictional oversight, and this evolution has created both tensions and opportunities. National legislation and regulation have helped increase reliability, diversify the fuel mix for electricity generation, and create a more open market for electricity. However, national regulation designed to enhance open markets also created opportunities for abuse. In addition, the increasing level of federal oversight has led to conflicts between state and federal entities …

Aryans, Gender, And American Politics, Robert L. Tsai

Faculty Scholarship

This short essay discusses some of the ways in which the Aryan movement in America activates gendered beliefs for the goal of legal, political, and cultural transformation. In recent years, the community has moved from common law theories of white sovereignty to more robust forms of racial constitutionalism. The piece is drawn from "America's Forgotten Constitutions: Defiant Visions of Power and Community" (forthcoming Harvard University Press, 2014).

A Missed Chance For Justice In Court, Tamar R. Birckhead

Tamar R Birckhead

This op-ed argues that Osama bin Laden should have been captured and tried in a court of law, rather than assassinated under circumstances suggesting he was unarmed and posed no immediate threat.

Book Review: The Modern Law Of Marine Insurance, Vol. 3 D. Rhodian Thomas (Ed.) (London 2009), Graydon S. Staring

Graydon S. Staring

Review of a book by several authors on topics characterized by me as follows: An Anglo-American Subject; Multimodal Boundaries; Plumbing the Depths of Indemnity; Anonymous Assureds: When the Principal "Knows" What the Agent Knows; Institute Cargo Clauses 2009; Indefinable Piracy and Other Crimes; Conflict of Laws--A Cruise on Waters of Discord; Conflict of Laws--Pax Romana.

The Material Support Prosecution And Foreign Policy, Wadie E. Said

Indiana Law Journal

No abstract provided.

Guantanamo And Beyond: Reflections On The Past, Present, And Future Of Preventive Detention, Kristine A. Huskey

The University of New Hampshire Law Review

[Excerpt] “January 11, 2011 began the tenth year of existence of the detention center at the U.S. Naval Base at Guantanamo Bay, Cuba (“Guantanamo” or “GTMO”). In human-being terms, what this means is that large numbers of men have been detained by the U.S. military for almost a decade, in prison-like conditions, without trial. In a pre-9/11 world, a “Guantanamo” and the idea of “detention without trial” would have been seen as decidedly un-American and a violation of our democratic values. Over the last decade, however, Guantanamo” and the practice of long-term detention without trial for terrorism suspects (or, “preventive …

Procedural Justice Post-9/11: The Effects Of Procedurally Unfair Treatment Of Detainees On Perceptions Of Global Legitimacy, David Welsh

The University of New Hampshire Law Review

[Excerpt] “The Global War on Terror has been ideologically framed as a struggle between the principles of freedom and democracy on the one hand and tyranny and extremism on the other. Although this war has arguably led to a short-term disruption of terrorist threats such as al-Qaeda, it has also damaged America’s image both at home and abroad. Throughout the world, there is a growing consensus that America has “a lack of credibility as a fair and just world leader.” The perceived legitimacy of the United States in the War on Terror is critical because terrorism is not a conventional …

The War Of Ideas Revisited, Gabriel C. Lajeunesse

Gabriel C. Lajeunesse

We need to reintroduce the War of Ideas into our policy lexicon and recognize that our national security interests are best served by the spread of liberty and free markets.

Rise Of The Drones: Unmanned Systems And The Future Of War, Kenneth Anderson

Kenneth Anderson

This document is written testimony submitted to the Subcommittee on National Security and Foreign Affairs, for a hearing under the general title of "Rise of the Drones: Unmanned Systems and the Future of War." The hearing covered military, strategic, technological, and economic issues related to unmanned aerial vehicles in military, intelligence, and civilian commercial use. This written testimony addressed certain international law and legal policy issues raised by the use of drones as a means of projecting force. It is primarily addressed to the question of the CIA campaign of drone attacks in Pakistan and beyond, rather than the use …

What’S In A Name? How Nations Define Terrorism Ten Years After 9/11, Sudha Setty

Faculty Scholarship

Ten years after the attacks of September 11, 2001, it almost goes without saying that the acts of grotesque violence committed on that day have had enormous effects on national security law and policy worldwide. To be labeled a terrorist, or to be accused of involvement in an act of terrorism, carries far more severe repercussions now than it did ten years ago. This is true under international law and under domestic law in nations that have dealt with serious national security concerns for many years.

Given the U.N.’s global mandate to combat terrorism and that being defined as a …

On The Contemporary Meaning Of Korematsu: Liberty Lies In The Hearts Of Men And Women, David A. Harris

Missouri Law Review

In just a few years, seven decades will have passed since the United States Supreme Court's decision in Korematsu v. United States, one of the most reviled of all of the Court's cases. However, similarities between the World War II era and our own have instigated a re-evaluation of Korematsu. When the Court decided Korenatsu in 1944, the United States was at war with the Japanese empire, which created considerable suspicion of anyone who shared the ethnicity of these foreign enemies. Since September 11, 2001, America has faced another external threat - from the al Qaeda terrorists - and there …

Fictitious States, Effective Control, And The Use Of Force, Brian C. Finucane

Brian C Finucane

This Article examines state practice relating to violent non-state actors operating from “fictitious” states. Fictitious states are entities that possess international legal personality but not effective control over their territories and populations. As the Article explains, many of the world’s states are legal fictions. Although the problem is most vividly illustrated by the United States’ recent military strikes in Pakistan, Yemen and Somalia, the problem is far broader. This Article shows that the security threat posed by non-state actors operating from ungoverned territory is not new. Lapses in state control have been common throughout history and violent non-state actors have …

Fictitious States, Effective Control, And The Use Of Force, Brian C. Finucane

Brian C Finucane

This Article examines state practice relating to violent non-state actors operating from “fictitious” states. Fictitious states are entities that possess international legal personality but not effective control over their territories and populations. As the Article explains, many of the world’s states are legal fictions. Although the threat is most vividly illustrated by the United States’ recent military strikes in Pakistan, Yemen and Somalia, the problem is far broader. This Article shows that the security threat posed by non-state actors operating from ungoverned territory is not new. Lapses of state control over territory have been common throughout history and violent non-state …

Fictitious States, Effective Control, And The Use Of Force, Brian C. Finucane

Brian C Finucane

This Article examines state practice relating to violent non-state actors operating from “fictitious” states. Fictitious states are entities that possess international legal personality but not effective control over their territories and populations. As the Article explains, many of the world’s states are legal fictions. Although the problem is most vividly illustrated by the United States’ recent military strikes in Pakistan, Yemen and Somalia, the problem is far broader. This Article shows that the security threat posed by non-state actors operating from ungoverned territory is not new. Lapses in state control have been common throughout history and violent non-state actors have …

Book Review Of Counter-Terrorism: The Culture Of Law And Justice After 9/11, Matthew S. R. Palmer

The Hon Justice Matthew Palmer

This is a largely complimentary book review focussing on the theme of law and culture in the context of counter-terrorism law.

Terrorism, State Responsibility And The Use Of Armed Force, René Värk

René Värk

No abstract provided.

Riikide Enesekaitse Ja Kollektiivse Julgeolekusüsteemi Võimalikkusest Terroristlike Mitteriiklike Rühmituste Kontekstis, René Värk

René Värk

No abstract provided.

The Surprising Lessons From Plea Bargaining In The Shadow Of Terror, Lucian E. Dervan

Law Faculty Scholarship

Since September 11, 2001, several hundred individuals have been convicted of terrorism related charges. Of these convictions, over 80% resulted from a plea of guilty. It is surprising and counterintuitive that such a large percentage of these cases are resolved in this manner, yet, even when prosecuting suspected terrorists caught attempting suicide attacks, the power of the plea bargaining machine exerts a striking influence. As a result, a close examination of these extraordinary cases offers important insights into the forces that drive the plea bargaining system. Utilizing these insights, this article critiques two divergent and dominant theories of plea bargaining …

Australian Jihad: Radicalisation And Counter-Terrorism, Samuel J. Mullins

Faculty of Law - Papers (Archive)

This ARI summarises the findings from an-depth empirical study of all publicly-confirmed cases of Islamist terrorism involving Australians. The domestic situation of Australian Muslims is briefly described, followed by an overview of Islamist terrorism cases to date, including the number and location of cases and the level of threat they have presented, both domestically and internationally. The background characteristics of offenders and details of radicalisation are discussed, followed by an examination of the national counter-terrorism (CT) strategy, with a focus upon counter-radicalisation initiatives. Current CT tactics appear to be appropriate to the nature of the threat; however, it will be …

Islamist Terrorism And Australia: An Empirical Examination Of The "Home-Grown" Threat, Sam Mullins

Faculty of Law - Papers (Archive)

Australian interests have been considered viable targets for Islamist terrorists since at least 2001, and Australians have suffered from attacks in Bali in 2002 and 2005, and Jakarta in 2004 and 2009. Moreover, Australian citizens have been involved in militant Islamist networks since the late 1980s, and similar to other Western countries in recent years there have been examples of ‘‘home-grown’’ plots to carry out domestic terrorist attacks. This article seeks to clarify the nature of the contemporary security threat within Australia by analysing the involvement of Australian citizens and residents in Islamist terrorism, both at home and abroad. The …

Seductive Drones: Learning From A Decade Of Lethal Operations, Mary Ellen O'Connell

Journal Articles

The world’s fleets of unmanned combat vehicles (UCVs) are growing exponentially. This contribution aims to raise awareness that the very existence of UCV technology may well be lowering the inhibitions to kill. At least two sets of data indicate a problem: First, we have evidence from psychological studies that killing at a distance using unmanned launch vehicles may lower the inhibition to kill on the part of operators. Second, we have a decade of evidence of US presidents deploying military force where such force was unlikely to be used prior to the development of UCVs. This evidence indicates that the …

On The Contemporary Meaning Of Korematsu: 'Liberty Lies In The Hearts Of Men And Women', David A. Harris

Articles

In just a few years, seven decades will have passed since the U.S. Supreme Court’s decision in Korematsu v. U.S., one of the most reviled of all of the Court’s cases. Despised or not, however, similarities between the World War II era and our own have people looking at Korematsu in a new light. When the Court decided Korematsu in 1944, we were at war with the Japanese empire, and with this came considerable suspicion of anyone who shared the ethnicity of our foreign enemies. Since 2001, we have faced another external threat – from the al Queda terrorists – …