International Law Commons^™

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

Journal Articles

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 …

The Doctrine Of Preemptive Self-Defense, Sean D. Murphy

Villanova Law Review (1956 - )

No abstract provided.

Human Rights And The War On Terror: Introduction, Jack Donnelly

Human Rights & Human Welfare

War rarely is good for human rights. The decision of the United States to launch a “global war on terror” in response to the suicide airplane bombings in New York and Washington has had predictably negative human rights consequences. In combating a tiny network of violent political extremists, human rights have in various ways, both intentional and unintentional, been restricted, infringed, violated, ignored, and trampled in many countries, sometimes severely.

Afghanistan, Greg Sanders

Human Rights & Human Welfare

After September 11, Afghanistan became the first battleground of the War on Terror when the Taliban government refused to turn over Osama Bin Laden and other Al Qaeda members. Human rights concerns about these events fall in two areas. First, did the United States violate human rights when it launched Operation Enduring Freedom to overthrow the Taliban and during the subsequent occupation? Second, have the occupation forces and new regime of under the leadership of Hamid Karzai done enough to improve the previously miserable human rights situation in Afghanistan?

Chechnya, Kelley Laird

Human Rights & Human Welfare

The root of animosity between Russians and Chechens extends for more than a century, beginning when Chechens opposed Russia’s conquest of the Caucasus between 1818 and 1917. Tension reached an apex in the 1940s when Stalin deported thousands of Chechens to Siberia and East Asia in fear that they would collaborate with German Nazis.

Colombia, Travis Ning

Human Rights & Human Welfare

The events of September 11 continued of the pattern of redefinition in the conflict in Colombia. The complex war of today actually began decades ago as a small political struggle, which has gradually developed into a large-scale civil war. The continuation and growth of civil strife in Colombia witnessed the emergence of several organized anti-government guerrilla movements. Some of these groups have since been defeated or have integrated themselves into the recognized political system. Others have continued to violently challenge Colombian government authority. Currently, the two most significant anti-government insurgency groups are the Fuerzas Armadas Revolucionarias de Colombia (FARC) and …

Europe, Victoria Lowdon, Angela Woolliams, Robin Davey

Human Rights & Human Welfare

Both individually and collectively, European countries have vast experience with international and domestic terrorism. Because the point of terrorist attacks is primarily within a particular country (United Kingdom, Turkey and Spain), terrorism has come to be viewed by these states as a domestic problem. At the same time European countries have recognized the value of inter-governmental cooperation, which has been codified in various bilateral and multilateral agreements and conventions dating back to the 1950’s.

Israel, Sydney Fisher

Human Rights & Human Welfare

Israel and Palestine have been in an “interim period” between full scale occupation and a negotiated end to the conflict for a long time. This supposedly intermediate period in the conflict has seen no respite from violations of Palestinians’ human rights or the suicide bombings affecting Israelis. This section will provide resources spanning the issues regarding Israel, Palestine and how the human rights dimensions of this conflict interact with the war on terror. The issue of how both sides will arrive at peace remains a mystery.

Pakistan, Susannah Compton, Toni Panetta

Human Rights & Human Welfare

Following armed hostilities in 1947-1949 between India and Pakistan, the region once known as the Princely State of Jammu and Kashmir was divided. The disputed territory continues to split relations between Pakistan and India and the threat of war has been a daunting force as recently as 2002.

U. S. Foreign Policy, Charles Hess

Human Rights & Human Welfare

The historical connection between U.S. foreign policy and human rights has been strong on occasion. The War on Terror has not diminished but rather intensified that relationship if public statements from President Bush and his administration are to be believed. Some argue that just as in the Cold War, the American way of life as a free and liberal people is at stake. They argue that the enemy now is not communism but the disgruntled few who would seek to impose fundamentalist values on societies the world over and destroy those who do not conform. Proposed approaches to neutralizing the …

Uzbekistan, Chris Maggard

Human Rights & Human Welfare

The Central Asian republics have largely remained hidden from the world attention since they gained independence a decade ago. However, immediately following September 11th the region was brought into focus as a part of the US-led “War on Terror”. Uzbekistan became a full partner in this initiative when the government decided to allow the U.S. military full use of its territory in the invasion against Afghanistan . As Uzbek President Karimov has become willing to work with the West than neighboring countries, the debate in recent years has been how and to what extent, rather than whether or not the …

Military Detention And The Judiciary: Al Qaeda, The Kkk And Supra-State Law, Wayne Mccormack

San Diego International Law Journal

This Article touches on the choice of whether to use the language and tools of war or the language and tools of law enforcement in responding to terrorism. The principal focus, however, is on the limited issue of judicial review and military detentions. The Article reviews the case law created on this subject during the Civil War and World War II. Historical considerations are found by the author to be relevant and helpful in solving the incoherency of current legal responses to terrorism. For instance, indefinite military detention is not coherent with either the international law concept of violations of …

Rumsfeld V. Padilla: Brief Amicus Curiae Of Comparative Law Scholars And Experts On The Laws Of The United Kingdom And Israel In Support Of Respondent, Samuel R. Gross, J. Christopher Mccrudden

Appellate Briefs

Amici are comparative law scholars and experts on the laws of the United Kingdom of Great Britain and Northern Ireland and the State of Israel.

Both terrorism and democratic values transcend borders. Democratic allies of the United States also face threats of terrorism. Some, notably the United Kingdom and Israel, have long histories of fighting terrorism. This brief documents how dramatically the indefinite, incommunicado detention to which Petitioner has subjected Jose Padilla departs from the minimum procedural protections that other democracies provide detained suspected terrorists. Each of these democratic allies uses four controls to constrain executive authority to detain suspected …

How About A Little Perspective? The Usa Patriot Act And The Use And Abuses Of History, Jeffrey A. Breinholt

ExpressO

A historical analysis of the U.S. law enforcement response to threatened terrorism, showing that the USA PATRIOT and other modern counterterrorism methods are neither unpredecented nor unconstitutional and that U.S. courts remain a haven for persons who feel threatened by government actions taken in the name of national security.

Enemies Foreign And Domestic: A Historical Look At The Use Of Military Commissions By The United States And The Case For Using Them Against American Citizens, James T. Barnett

ExpressO

An historical look at the use of Military Commissions by the United States of America. This article examines the constitutional powers to use Military Commissions as well as the limitations on such commissions.

It also examines the use of these commissions against American citizens and argues that they are proper in certain circumstances. The limitations set out by the Supreme Court are eroded to the point of being void.

The article goes on to examine the cases of John Walker Lindh and Yasser Hamdi to show that Military Commissions are the proper forum for such cases.

Foreword: Terrorism On Trial, Michael P. Scharf, Amy E. Miller

Faculty Publications

While the Lockerbie approach is currently out of vogue, are there nonetheless lessons from Lockerbie that policy makers can draw on in determining how to best use law as a weapon against terrorism in the future? To explore this important and timely question, the Frederick K. Cox International Law Center assembled a group of high level United Nations officers, former U.S. government officials, noted prosecutors and defense counsel, and prominent journalists and scholars for a day-long symposium at Case Western Reserve University School of Law on October 8, 2004, entitled "Terrorism on Trial." The conference, which was cosponsored by the …

Terrorism: An Algerian Perspective, Idriss Jazairy

Richmond Journal of Global Law & Business

No abstract provided.

The Death Penalty--An Obstacle To The "War On Terrorism"?, Thomas Michael Mcdonnell

Elisabeth Haub School of Law Faculty Publications

September 11 seared our collective memory perhaps even more vividly than December 7, 1941, and has evoked a natural demand both for retribution and for measures to keep us safe. Given the existing statutory and judicial authority for capital punishment, the U.S. Government has to confront the issue whether to seek the death penalty against those who are linked to the suicide attacks or to the organization that sponsored them or both. Meting out the death penalty to international terrorists involves difficult moral, legal, and policy questions. The September 11 crimes were not only domestic crimes, but also international ones. …

Targeting The Foreign Born By Race And Nationality: Counterproductive In The "War On Terrorism"?, Thomas Michael Mcdonnell

Elisabeth Haub School of Law Faculty Publications

Times of emergency may justify certain restrictions on liberties, but the nature of the terrorist challenge calls for a much more measured and nuanced response. Al Qaeda is said to have cells operating in as many as sixty countries. Furthermore, Al Qaeda is best described as a decentralized network of extremist Islamic groups and individuals rather than a unified military organization. To reduce or eliminate the threat they pose requires the cooperation of the governments, police officers, and individual citizens in the countries where Al Qaeda linked individuals and groups operate. Such help is necessary to obtain intelligence, arrest, capture, …

Law, Human Rights, Realism And The “War On Terror”, J. Peter Pham

Human Rights & Human Welfare

A review of:

The Lesser Evil: Political Ethics in an Age of Terror by Michael Ignatieff. Princeton: Princeton University Press, 2004. 212pp.

Defining Terrorism As The Peacetime Equivalent Of War Crimes: Problems And Prospects, Michael P. Scharf

Faculty Publications

This article examines the proposal to define terrorism as the peacetime equivalent of war crimes in the context of answering two questions: First, why might it be useful to define terrorism by reference to the existing laws of war? And second, what are the potential negative consequences which might counsel against such an approach?

On The Problem Of Utilizing Unilateral Action To Prevent Acts Of Sea Piracy And Terrorism: A Proactive Approach To The Evolution Of International Law, Leticia Diaz, Barry H. Dubner

Syracuse Journal of International Law and Commerce

The goal of this article is to determine how the international community can prevent piracy and terrorism. The irony is that perhaps piracy may subside at last, but only as a result of the increased efforts of the international community to prevent terrorism. The purpose of this article, therefore, is to explore the parameters of the problems and trends toward serious destruction connected to these acts and to suggest that if regional approaches fail, certain unilateral actions against the perpetrators may be necessary in order to avoid massive human and environmental destruction. The core question is whether unilateral action growing …

Wings For Talons: The Case For Extraterritorial Jurisdiction Over Sexual Exploitation Of Children Through Cyberspace, Christopher L. Blakesley

Scholarly Works

To cope more effectively with the changed landscape of child exploitation, it is necessary for laws to expand their extraterritorial reach. Some statutes in the “child exploitation arena” have already been ruled to apply extraterritorially. The prime example of this is 18 U.S.C. § 2252 (2004) (certain activities relating to the material involving the sexual exploitation of minors). Two of the more useful statutes in combating online pedophiles are 18 U.S.C. § 1470 (2003) (transfer of obscene materials to minors) and 18 U.S.C. § 2422 (2003) (coercion and enticement). These latter statutes, however, have yet to receive significant or …

War Everywhere: Rights, National Security Law, And The Law Of Armed Conflict In The Age Of Terror, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

Both international and domestic law take as a basic premise the notion that it is possible, important, and usually fairly straightforward to distinguish between war and peace, emergencies and normality, the foreign and the domestic, the external and the internal. From an international law perspective, the law of armed conflict is triggered only when a armed conflict actually exists; the rest of the time, other bodies of law are applicable. Domestically, U.S. courts have developed a constitutional and statutory jurisprudence that distinguishes between national security issues and domestic questions, with the courts subjecting government actions to far less scrutiny when …

Creating A Public Defender System In The Shadow Of The Israeli – Palestinian Conflict, Kenneth Mann, David Weiner

NYLS Law Review

No abstract provided.

Non-State Actors In The Nuclear Black Market: Proposing An International Legal Framework For Preventing Nuclear Expertise Proliferation & Nuclear Smuggling By Non-State Actors, Thomas V. Burch

Scholarly Works

While there are a number of disincentives that prevent states from participating in the nuclear black market, most of these deterrents do not apply to non-state actors. This article focuses on the difficulties this situation presents in a time of global terrorism. The author points out that terrorists already have the money, means and motive to build or purchase nuclear devises. In analyzing this issue the author proposes two options. First, member parties could amend one of all of several existing treaties of the subject. Second, the international community can draft a new treaty or convention on nuclear smuggling and …

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

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Terrorism And The Law (Yonah Alexander And Edgar H. Brenner, Eds., Transnational Publishers 2001). , Fara Gold

University of Miami International and Comparative Law Review

No abstract provided.

The (Un)Favorable Judgment Of History: Deportation Hearings, The Palmer Raids, And The Meaning Of History, Harlan G. Cohen

Scholarly Works

As Americans respond to the events of September 11, 2001, they are being forced to contemplate their place in American history-past, present, and future. This has become particularly stark in the fight over secret deportation hearings. Following September 11, Attorney General John Ashcroft announced that the deportation hearings of "special interest" aliens would be closed to the public. Applying Richmond Newspapers's two-pronged logic-and-experience test, the Third and Sixth Circuits subsequently split over the constitutionality of the blanket closure. At the heart of their disagreement was the scarce history of deportation hearings and whether such hearings had been closed in the …

The Military -Judicial Nexus In Response To Terrorism: Kkk And Alqaeda, Wayne Mccormack

ExpressO

In considering the validity of "enemy combatant" status and military detention for alleged terrorists, several additional propositions emerge. Indefinite military detention of a US citizen arrested on US soil for a domestic crime is far beyond the pale of basic constitutional underpinnings. With respect to noncitizens and citizens captured overseas, military power is arguable but far from solid. In that event, why not take the route that does the least disruption to our system? Second, because the law abhors incoherence, we should be able to make coherent distinctions among alleged terrorists for the purpose of deciding who is tried in …