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The Push To Criminalize Aggression: Something Lost Amid The Gains?, Mark A. Drumbl

Scholarly Articles

The International Criminal Court has jurisdiction over the crime of aggression, but the Rome Statute fails to define the crime. A Special Work- ing Group on the Crime of Aggression, however, has made considerable progress in developing a definition. The consensus that has emerged favors a narrow definition. Three characteristics animate this consensus: (1) that state action is central to the crime; (2) that acts of aggression involve inter- state armed conflict; and (3) that criminal responsibility attaches only to very top political or military leaders. This Article normatively challenges this consensus. I argue that expanding the scope of the …

The Use Of Force Against States That Might Have Weapons Of Mass Destruction, Matthew C. Waxman

Michigan Journal of International Law

This Article argues that the most difficult future crises for which this legal debate is most consequential will not resemble those described by Prime Minister Thatcher or Director ElBaradei. Rather, in confronting potentially hostile and aggressive states believed to pose a WMD threat, decisionmakers contemplating the use of force will face an intelligence picture that is open to reasonable debate (contra Thatcher) and irresolvable to high levels of certainty (contra ElBaradei). This paper examines how competing legal approaches deal with this epistemic problem.

A Critical Guide To The Iraqi High Tribunal's Anfal Judgement: Genocide Against The Kurds, Jennifer Trahan

Michigan Journal of International Law

In the Anfal trial, the Iraqi High Tribunal (IHT or the Tribunal) in Baghdad convicted former Iraqi high officials of genocide, crimes against humanity, and war crimes. Unlike its predecessor-the Dujail trial-the Anfal trial included the presentation of a high volume of documentary and eye-witness evidence. This evidence clearly revealed the existence of a genocidal campaign by the former Iraqi government and military that eliminated an estimated 182,000 Iraqi Kurds in 1988, as part of the eight-phased "Anfal campaign" (the Anfal). Relying on this and other evidence, judges in the Anfal Trial Chamber explained fairly persuasively how genocide, crimes against …

States Of War: Defensive Force Among Nations (Reviewing George P. Fletcher & Jens David Ohlin, Defending Humanity: When Force Is Justified And Why (2008)), Guyora Binder

Book Reviews

In "Defending Humanity: When Force is Justified and Why," George Fletcher and Jens Ohlin analogize international defensive force to individual self-defense. Based on this analogy, Fletcher and Ohlin justify a presumptive right on the part of every state to intervene against aggression, and a right of humanitarian intervention in support of national groups but not populations. They oppose reprisals, preemptive defense, and resistance to invading armies by irregular troops. This review essay argues that the relative weakness of the Security Council, the unequal power of states, and the contingency of international recognition on effective force all undermine the analogy between …

Commentary: International Prosecution Of Heads Of State For Genocide, War Crimes, And Crimes Against Humanity, 43 J. Marshall L. Rev. Xxv (2009), Hans Corell

UIC Law Review

No abstract provided.

Transforming Children Of War Into Agents Of Change, Brooke Breazeale

Human Rights & Human Welfare

Since the turn of the century, Sub-Saharan Africa has experienced the fastest growing rate of child soldiers. Consider the following statistics:

• An estimated 60 percent of child soldiers in Africa are fourteen years old and under (Singer 2006: 29);
• In Uganda the average age of personnel in armed forces is 12.9 (Singer 2006: 29);
• Since 1990, two million children have been killed in armed conflict, the equivalent of five hundred per day for ten years (Singer 2005).

The Limits Of International Humanitarian Law, Melissa Eli

Human Rights & Human Welfare

The goal of international humanitarian law is to humanize war in an effort to minimize human suffering and the long-term negative consequences of war. However, despite the adoption by most countries of the Geneva Conventions and other relevant agreements, crimes of war occur in every conflict around the world on a regular basis. Additionally, as the form of warfare changes, so does the implementation and consequences of various war crimes. Genocide, systematic rape, and the use of child soldiers are three of the most significant war crimes facing sub-Saharan Africa today. Each has consequences so severe that specific international laws …

Asat-Isfaction: Customary International Law And The Regulation Of Anti-Satellite Weapons, David A. Koplow

Michigan Journal of International Law

The argument in this Article proceeds through several steps. As background, Part I outlines the current and projected future human uses of outer space, emphasizing the plethora of civilian and military applications that now rely on satellites. The United States, especially, but other countries, too, are coming to depend on multiple space assets for the performance of a wide array of vital functions; the investment is huge, diverse, and growing, despite the costs and natural perils of operating in the harsh exoatmospheric environment.

Marten Zwanenburg On International Peacekeeping Edited By Boris Kondoch. Aldershot: Ashgate, 2007. 578pp., Marten Zwanenburg

Human Rights & Human Welfare

A review of:

International Peacekeeping edited by Boris Kondoch. Aldershot: Ashgate, 2007. 578pp.

International Justice And International Politics: Intertwined Paths, David Penna

Human Rights & Human Welfare

A review of:

International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation. By Victor Peskin. New York: Cambridge University Press, 2008. 272 pp.

and

Building the International Criminal Court. By Benjamin N. Schiff. New York: Cambridge University Press, 2008. 304 pp.

and

The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II. By Yuma Totani. Cambridge, MA: Harvard University Asia Center / Harvard University Press, 2008. 335 pp.

International Terrorism: The Legitimization Of Safe Harbor States In International Law, Carol A. Bahan

NYLS Law Review

No abstract provided.

United States Detention Operations In Afghanistan And The Law Of Armed Conflict, Matthew C. Waxman

Faculty Scholarship

Looking back on US and coalition detention operations in Afghanistan to date, three key issues stand out: one substantive, one procedural and one policy. The substantive matter – what are the minimum baseline treatment standards required as a matter of international law? – has clarified significantly during the course of operations there, largely as a result of the US Supreme Court’s holding in Hamdan v. Rumsfeld. The procedural matter – what adjudicative processes does international law require for determining who may be detained? – eludes consensus and has become more controversial the longer the Afghan conflict continues. And the …

Private Military Companies & International Law: Building New Ladders Of Legal Accountability & Responsibility, Jackson Nyamuya Maogoto, Benedict Sheehy

Cardozo Journal of Conflict Resolution

The Private Military Company ("PMC") is a relatively new and growing phenomenon. An urgent and ongoing problem facing courts and policy makers is the accountability of PMCs. This article proposes new approaches to developing accountability by examining the potential of two well-established doctrines: command responsibility and state responsibility.

Failures To Punish: Command Responsibility In Domestic And International Law, Amy J. Sepinwall

Michigan Journal of International Law

This Article embraces one of two contested understandings of what a failure to punish entails. On the first understanding, a military commander's failure to punish is construed solely as a dereliction of duty. Accordingly, his failure to punish constitutes a separate offense from the underlying atrocity that his troops have committed. The failure to punish is, then, a substantive offense in its own right. On a second understanding, for which I argue here, the failure to punish renders the commander criminally liable for the atrocity itself, even if he neither ordered nor even knew about the atrocity before its occurrence. …

National Security Courts: Star Chamber Or Specialized Justice?, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

In October 2008, the author moderated a panel discussion addressing the utility of establishing a new national security court system for administering the detention and trial of terrorist suspects. The discussion featured comments by five lawyers with significant academic and practical experience in the field: Richard Zabel, a litigation partner at Akin Gump Strauss Hauer & Feld LLP, a former Assistant U.S. Attorney and co-author of In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts; Glenn L. Sulmasy, an Associate Professor of Law at the United States Coast Guard Academy and author of the forthcoming book, The National …

The "War On Terror" Is Over--Now What? Restoring The Four Freedoms As A Foundation For Peace And Security, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

This article observes that the "Global War on Terror" as an organizing concept has been abandoned and proposes that the Obama Administration restore FDR's Four Freedoms in its place.

Preventive War, Deterrent Retaliation, And Retrospective Disproportionality, Brian Lee

Faculty Scholarship

No abstract provided.

Combatants And The Combat Zone, Mary Ellen O'Connell

Journal Articles

This short essay discusses that definition as it emerged following September 11, 2001. The essay compares the Administration's definition with the definition of combatant found in international law. This essay will not discuss in any detail the additional-and even more questionable-claim by the Administration that certain persons designated "enemy combatants" enjoy neither U.S. nor international human rights or IHL rights or protections.8 Suffice it to say that no human being can be denied his or her fundamental rights-there are no legal black holes.

Honduras: Coup D’Etat In Constitutional Clothing?, Douglass Cassel

Journal Articles

Legal confusion has clouded the recent de facto change of government in Honduras. Some of this arises from the passionate political debate over President Manuel Zelaya and his de facto removal. Without entering that debate, this analysis addresses only questions of international law and related questions of law.

Despite the condemnation of the coup d’état by the United Nations, the Inter-American Commission on Human Rights, and the OAS, and by many governments including the United States, and despite suspension of Honduras from receipt of U.S. and European aid, and from participation in the OAS, diplomatic efforts to return President Zelaya …

Hearts And Minds And Laws: Legal Compliance And Diplomatic Persuasion, Christopher J. Borgen

Faculty Publications

This Essay considers the role of international legal argument in the war on terror and, in particular, in the attempts to justify the use of military force. Part I looks at challenges posed by the evolution of military conflict and how this affects diplomacy. In particular, I argue that a reputation for honoring one's treaty commitments and for legality, more generally, is an important part of fostering cooperation and undercutting the support of our adversaries. Part II focuses on how the Bush Administration moved between hostility to international law and attempts to rewrite the rules of international law concerning the …

Law From Above: Unmanned Aerial Systems, Use Of Force, And The Law Of Armed Conflict, Chris Jenks

Faculty Journal Articles and Book Chapters

The United States employing armed unmanned aerial systems (UAS) or “drones” against al qaeda and Taliban targets in northwest Pakistan continues to spur discussion and disagreement. Some label UAS “armed robotic killers,” while others describe them as providing a much greater degree of distinction between intended targets and the surrounding population and infrastructure, thus limiting civilian casualties and property damage. The overt disagreement as to whether the strikes are legal masks that the discussants are utilizing wholesale different methodologies, talking past each other in the process. The origin of this divergence is to what extent the law of armed conflict …

Human Rights And Military Decisions: Counterinsurgency And Trends In The Law Of International Armed Conflict, Dan E. Stigall, Christopher L. Blakesley, Chris Jenks

Faculty Journal Articles and Book Chapters

The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that …

Double Jeopardy And Multiple Sovereigns: A Jurisdictional Theory, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Article offers a coherent way of thinking about double jeopardy rules among sovereigns. Its theory has strong explanatory power for current double jeopardy law and practice in both U.S. federal and international legal systems, recommends adjustments to double jeopardy doctrine in both systems, and sharpens normative assessment of that doctrine.

The Article develops a jurisdictional theory of double jeopardy under which sovereignty signifies independent jurisdiction to make and apply law. Using this theory, the Article recasts the history of the U.S. Supreme Court's dual sovereignty doctrine entirely in terms of jurisdiction, penetrating the opacity of the term sovereign as …

James Pattison On Waging Humanitarian War: The Ethics, Law, And Politics Of Humanitarian Intervention By Eric A. Heinze. Albany: Suny Press, 2009. 224pp., James Pattison

Human Rights & Human Welfare

A review of:

Waging Humanitarian War: The Ethics, Law, and Politics of Humanitarian Intervention by Eric A. Heinze. Albany: SUNY Press, 2009. 224pp.

China’S Relationship With Sudan—And Human Rights Consequences, Tessa Li Powell

Human Rights & Human Welfare

China is the largest country in the world and has a rapidly expanding economy. Its streets are starting to crowd with cars instead of bicycles and there is an increasing demand for the luxuries of developed nations. The desire to keep up with major international players has pushed the Chinese government to overlook whatever human rights abuses may be occurring inside and outside of its borders. China has taken steps to support Sudan despite its use of child soldiers and the genocide in Darfur that has been occurring for years. By criticizing and withdrawing support from President al-Bashir, China could …

The Law Of Armed Conflict And Detention Operations In Afghanistan, Matthew C. Waxman

Faculty Scholarship

In reflecting on the arc of US and coalition detention operations in Afghanistan, three key issues related to the law of armed conflict stand out: one substantive, one procedural and one policy. The substantive matter – what are the minimum baseline treatment standards required as a matter of international law? – has clarified significantly during the course of operations there, largely as a result of the US Supreme Court's holding in Hamdan v. Rumsfeld. The procedural matter – what adjudicative processes does international law require for determining who may be detained? – eludes consensus and has become more controversial …

Sanctions, Countermeasures, And The Iranian Nuclear Issue, N. J. Calamita

Vanderbilt Journal of Transnational Law

The international community's response to Iran's nuclear development program highlights the sometimes complex legal relationship between the UN system of collective security and the rights of states to take unilateral countermeasures under the law of state responsibility. It also raises a number of important questions about (a) the discretion afforded to states in the interpretation and implementation of Security Council resolutions, (b) the availability of countermeasures for the violation of multilateral obligations, and (c) the exclusivity of the Chapter VII framework for collective security.

This Article argues that, while the Security Council's Iran sanctions resolutions do not grant discretionary authority …

Avoid Or Compensate? Liability For Incidental Injury To Civilians Inflicted During Armed Conflict, Yael Ronen

Vanderbilt Journal of Transnational Law

Under international law, civilians suffering injuries that are incidental to a lawful attack on a military objective are left to bear the cost of their losses. In recent years there have been calls for a change in policy that would entitle victims of military attacks to compensation, even if their losses are incidental and non-fault-based. This Article explores the notion of such a quasi-strict liability rule, which is likely to disrupt the existing balance of powers and interests under the laws of armed conflict. Following an exploration of the conceptual basis for such an obligation, the Article examines the effect …

Panel 1: Are Adequate Legal Frameworks In Place At The Domestic Level?: Domestic Incorporation Of Obligations Under The Convention Against Torture, Claudio Grossman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The United States, Israel, And Unlawful Combatants, Curtis A. Bradley

Faculty Scholarship

This essay considers how members of a terrorist organization should be categorized under international law when the organization is engaged in an armed conflict with a nation. The proper categorization can have significant implications for the nation’s authority under both international and domestic law to subject members of a terrorist organization to military targeting and detention. As a result of judicial decisions, Israel ostensibly follows a two category approach, pursuant to which anyone who is not a lawful combatant, including a member of a terrorist organization, is a civilian. The United States, by contrast, currently follows a three category approach, …