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Defending America Against Chinese Cyber Espionage Through The Use Of Active Defenses, Alexander Melnitzky

Cardozo Journal of International and Comparative Law

The note argues that cyber espionage, particularly by China, poses a significant threat to U.S. national security and should be treated as a national security issue rather than solely a criminal matter. It advocates for the use of active defenses as a legal and justified response, asserting that such measures align with international law and the principles of jus ad bellum and jus in bello.

Beyond War: Bin Laden, Escobar, And The Justification Of Targeted Killing, Luis E. Chiesa, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

Using the May 2011 killing of Osama bin Laden as a case study, this Article contributes to the debate on targeted killing in two distinct ways, each of which has the result of downplaying the centrality of international humanitarian law (IHL) as the decisive source of justification for targeted killings.

First, we argue that the IHL rules governing the killing of combatants in wartime should be understood to apply more strictly in cases involving the targeting of single individuals, particularly when the targeting occurs against nonparadigmatic combatants outside the traditional battlefield. As applied to the bin Laden killing, we argue …

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 …

Military Lawyers And The Two Cultures Problem, David Luban

Georgetown Law Faculty Publications and Other Works

Military and humanitarian lawyers approach the laws of war—labeled “law of armed conflict” by the former and “international humanitarian law” by the latter—in very different ways. For military lawyers, the starting point is military necessity, and the reigning assumption is that legal regulation of war must accommodate military necessity. For humanitarian lawyers, the starting point is human dignity and human rights. This article argues that from these radically different axioms legal consequences systematically follow regarding treaty interpretation, the sources and reach of customary international law, the nature of international law, deference and discretion to military commanders, and the connection between …

Train Wreck: The U.S. Violation Of The Chemical Weapons Convention, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The 1993 Chemical Weapons Convention (CWC) is one of the most important multilateral arms control instruments; it requires its 188 parties to refrain from producing, acquiring, retaining or using chemical weapons (CW) and to destroy their existing CW stockpiles by a fixed date. The United States and Russia declared the possession of the world’s largest CW inventories and have been working assiduously to incinerate, chemically neutralize or otherwise dispose of their respective caches. Unfortunately, neither country met the treaty’s April 29, 2012 final, non-extendable deadline. The United States managed to destroy 90% of its CW stocks on time, but under …

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.

Efficiency In Bello And Ad Bellum: Making The Use Of Force Too Easy?, Kenneth Anderson

Contributions to Books

This article criticizes a widely asserted claim that drones make the resort to force and violence — war — “too easy.” Attractive on the surface to many, this article says that “too easy” is not a coherent notion as applied in war. The “too easy” argument comes in two forms, a moral argument and a maximization of social welfare argument. The maximization of social welfare version (on which the article focuses) frames “too easy” as a matter of creating an “inefficient” level of disincentive to use of force on account of insufficient risks to one’s own forces in so doing …

Child Soldiers And Clicktivism: Justice, Myths, And Prevention, Mark A. Drumbl

Scholarly Articles

The Kony 2012 campaign, conducted under the auspices of an American advocacy group, Invisible Children, highlighted – somewhat belatedly – the Lord’s Resistance Army (LRA), its leadership, and its many victims in northern Uganda, notably child soldiers. Deeper questions lurk, however, amid the breezy media flurry. How does Kony 2012 inform our understanding of child soldiers? How does it sculpt international efforts to prevent child soldiering?

Painting Ourselves Into A Corner: The Fundamental Paradoxes Of Modern Warfare In Al Maqaleh V. Gates, Ashley C. Nikkel

Nevada Law Journal

See how few of the cases of the suspension of the habeas corpus law, have been worthy of that suspension. They have been either real treason, wherein the parties might as well have been charged at once, or sham plots, where it was shameful they should ever have been suspected. Yet for the few cases wherein the suspension of the habeas corpus has done real good, that operation is now become habitual and the minds of the nation almost prepared to live under its constant suspension.

Bringing Nuremberg Home: Justice Jackson's Path Back To Buffalo, October 4, 1946, John Q. Barrett

Faculty Publications

During one permanently consequential decade in the history of the United States and the world, United States Supreme Court Justice Robert H. Jackson delivered three major lectures at the University of Buffalo. The last of these was Jackson's May 9, 1951, James McCormick Mitchell Lecture, "Wartime Security and Liberty under Law," which inaugurated this distinguished lecture series. Justice Jackson's first formal lecture at the University of Buffalo occurred on February 23, 1942, halfway through his first year as a Supreme Court Justice and just twelve weeks after the attack on Pearl Harbor brought the United States into World War II. …

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 …

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 …

Israel And The Palestinian State: Reply To Quigley, Daniel Benoliel

University of Baltimore Journal of International Law

This article replies to Professor John Quigley's recent article on the rather dramatic controversy concerning Palestinian statehood. The present article provides a critical assessment of two pivotal Palestinian Unilateral Declarations of Independence (UDI) initiatives as of 1988 and 2011. It does so both generally and with regard to the territorial and border disputes underplayed by Professor Quigley's supportive Palestinian statehood argument altogether.

In the wake of the codenamed 'Arab Spring' tentative spread of democracy throughout the Middle East, regional law and order commands legal certainty. Thus, while being sympathetic to the secessionist selfdetermination of Palestine under public international law, this …

Smart Power For Hard Problems: The Role Of Special Operation Forces Strengthening The Rule Of Law And Human Rights In Africa, Kevin H. Govern

University of Baltimore Journal of International Law

This article will assess the roles and responsibilities of Special Operations Forces (SOF) within the newly created U.S. Africa Command (AFRICOM) as an active proponent of a so-called “smart power” national security strategy. In particular, it will outline the economic, political, and military challenges faced in Africa; specifically, how and why SOCAFRICA is the U.S. force of choice for promoting human rights and rule of law in Africa. With the goals of the U.S. military in mind, questions will necessarily arise as to “what success looks like” for both the U.S. and African nations, and the roles of each in …

The United States And Iran – Decades Of Animosity: An Analysis Of The Path To The Current Conflict, Patrick Mcdade

University of Baltimore Journal of International Law

Lost in the international debate raging around Iran’s burgeoning nuclear weapons program is the deep and complex history that exists between the United States and Iran, as well as the legal rights and responsibilities that exist between the two nations. A thorough examination of the intensely adversarial relationship that has developed over the past sixty years must be undertaken before any path to a diplomatic solution is likely to succeed. The historical evidence clearly shows that Iran’s animosity towards and distrust of the United States is entirely justified, and the United States’ mistrust of Iran is equally well-grounded. Due these …

A Functional Approach To Targeting And Detention, Monica Hakimi

Faculty Scholarship

The international law governing when states may target to kill or preventively detain nonstate actors is in disarray. This Article puts much of the blame on the method that international law uses to answer that question. The method establishes different standards in four regulatory domains: (1) law enforcement, (2) emergency, (3) armed conflict for civilians, and (4) armed conflict for combatants. Because the legal standards vary, so too may substantive outcomes; decisionmakers must select the correct domain before determining whether targeting or detention is lawful. This Article argues that the "domain method" is practically unworkable and theoretically dubious. Practically, the …

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.

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, …

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

Scholarly Articles in Law Reviews & 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 …

Children At War: The Criminal Responsibility Of Child Soldiers, Megan Nobert

Pace International Law Review Online Companion

The problem of child soldiers is not going to go away. While it may not be a popular solution, child soldiers need to be prosecuted for the actions they commit during conflicts in addition to the prosecution of child soldier recruiters. Without legal ramifications, there is no incentive for the child soldier recruiters to stop their actions. This article explores how both child soldiers and their recruiters can be prosecuted for actions committed during conflict.

Worth A Pound Of Cure? An Empirical Assessment Of The Bush Doctrine And Preventive Military Action, Paul F. Diehl, Shyam Kulkarni

University of Miami International and Comparative Law Review

The Bush Doctrine, or the proposal that allows the use of military force preventively to address prospective attack from terrorists or involving weapons of mass destruction, has been debated from various normative and legal vantage points. In this article, we introduce the new evaluative criterion that such military action must also produce the desired outcomes of defeating opponents and preventing future attacks. We test the efficacy of preventive military actions over the last two centuries. We conclude that using military force in a preventive fashion provides very limited, if any value, to states that employ this strategy. At best, there …

Have Truth And Reconciliation Commissions Helped Remediate Human Rights Violations Against Women? A Feminist Analysis Of The Past And Formula For The Future, Margaret (Peggy) Maisel

Cardozo Journal of International and Comparative Law

The article argues that Truth and Reconciliation Commissions (TRCs) have largely failed to adequately address human rights violations against women due to their male-centered frameworks, which prioritize public sphere violations over private sphere abuses. While some TRCs, such as those in Sierra Leone and Peru, have made strides in incorporating gender considerations, others, like the South African TRC, have excluded women's experiences, perpetuating gender inequality. The article advocates for a gender-inclusive approach to ensure women's voices and violations are integral to reconciliation processes, emphasizing the need to address both civil-political and economic-social rights.

Making Fiction Of Facts In The Israeli Spy Case, Kenneth Lasson, Angelo Codevilla, Lawrence J. Korb, John Loftus

All Faculty Scholarship

The authors make the case that Jonathan Pollard, the man convicted of spying for Israel, is again being condemned by new allegations by Martin Peretz in a New Republic article, and by retired Navy Capt. M. E. Bowman. The authors of these new assertions may not know more of the particulars than others in high places who have already publicly supported commuting Pollard's sentence to time served.

No More 'Sha Still', Kenneth Lasson

All Faculty Scholarship

This op-ed laments the consequences of staying quiet in light of recent national and international events. It takes President Obama to task for blaming Israel for lack of progress in Middle East peace negotiations, as well as Congress for its ineptitude during the recent national debt ceiling negotiations.

Table Of Contents (Volume 87)

International Law Studies

No abstract provided.

Introduction (Volume 87)

International Law Studies

No abstract provided.

Let My People Go!, Kenneth Lasson

All Faculty Scholarship

This short article discusses the continued imprisonment of Jonathan Pollard for spying for Israel, as well as that of Israeli soldier Gilad Shalit, imprisoned by Hamas. Also discussed are the inequalities of the negotiations for their release, leaving Israel and the U.S. in a bad light.

April Roundtable: Responsibility To Protect And Human Rights Protection In The Ivory Coast, Introduction, Claudia Fuentes

Human Rights & Human Welfare

An annotation of:

Article under review: “The Case for Intervention in the Ivory Coast” by Corinne Dufka. Foreign Policy. March 25 2011.

Double Standards Demystified, Jonas Claes

Human Rights & Human Welfare

At the time Ms. Corinne Dufka’s op-Ed about the crisis in Côte D’Ivoire appeared, few would have predicted that three days later UN troops, with the support of the French military, would act forcefully to protect civilians and tip the balance in favor of the fighters loyal to Alassane Ouattara, eventually leading to the arrest of Laurent Gbagbo. The odds were not favoring this scenario.