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From Mayberry To Ferguson: The Militarization Of American Policing Equipment, Culture, And Mission, Cadman R. Kiker Iii

Washington and Lee Law Review Online

We are at the dawn of a new era of policing in the United States. In recent months, images of armed police officers patrolling the streets of Ferguson, Missouri, and of a toddler burned by a Georgia SWAT team’s grenade have been indelibly branded into America’s social consciousness. There is a unique bipartisan outcry from Washington in a time otherwise marked by bitter political divides. Politicians and journalists alike are questioning the efficacy of a militaristic police force and the path that led to this shift in the paradigm of policing.

This Essay examines the how and why of police …

The Role Of The Courts In Time Of War, William C. Banks

Washington and Lee Law Review Online

The role of the courts in judging the actions of government in wartime has ranged from extreme deference to careful probing of alleged government excesses over more than two centuries. The courts’ record has reflected the nature of the armed conflicts the United States has engaged in and the legal bases for the actions at issue. In the aggregate, the courts have served as a necessary counterweight to government overreaching in times of national security crisis. It is easy to underestimate the institutional problems confronting judges who are asked to make momentous decisions in times of national crisis—difficulties of fact-finding …

The Effects Of The Lubanga Case On Understanding And Preventing Child Soldiering, Mark A. Drumbl

Scholarly Articles

On March 14, 2012, a trial chamber of the International Criminal Court (ICC) convicted Thomas Lubanga Dyilo, a rebel leader from the Democratic Republic of the Congo, for child-soldier-related crimes. Some months later, Lubanga was sentenced to a prison term of fourteen years. On August 7, 2012, an ICC trial chamber issued its decision regarding the principles and procedures to be applied to reparations in the Lubanga case. This Article unpacks the relationships between the Lubanga proceedings and how the international community conceptualizes, and strives to prevent, child soldiering. This Article contends that the Lubanga proceedings reinforce, and incubate, a …

Transcending Victimhood: Child Soldiers And Restorative Justice, In Victims Of International Crimes: An Interdisciplinary Discourse (Thorsten Bonacker & Christoph Safferling Eds., 2013), Mark A. Drumbl

Books and Chapters

The international community strives to eradicate the scourge of child soldiering. Mostly, though, these efforts replay the same narratives and circulate the same assumptions. This chapter, which takes a second look at these efforts, aspires to refresh law and policy so as to improve preventative, restorative, and remedial initiatives while also vivifying the dignity of youth. As a starting point, this chapter proposes that the dominant language used to characterise child soldiers—that of passive victimhood—be revisited so as to better recognise the potentiality of child soldiers to participate in and lead post-conflict reconstructive efforts. This chapter suggests a variety of …

‘Germans Are The Lords And Poles Are The Servants’: The Trial Of Arthur Greiser In Poland, 1946, In The Hidden Histories Of War Crimes Trials (Kevin Jon Heller & Gerry Simpson Eds., 2013), Mark A. Drumbl

Books and Chapters

In the aftermath of World War II, the first conviction of an influential Nazi German official for the crime of waging aggressive war was delivered not by the International Military Tribunal at Nuremberg, but, rather, by the Supreme National Tribunal of Poland sitting in Poznán. The accused was Arthur Greiser. Beginning in September 1939, Greiser served as Gauleiter (i.e. Governor) of the Warthegau, a large expanse of western Poland that had been illegally annexed to Nazi Germany. The Warthegau's residents suffered brutally under Greiser's boot.

The Polish Tribunal sentenced Greiser to death on July 9, 1946. His execution by public …

Ask, Tell, But Do Not Get Greedy: The Inequalities That Pervade In The Military In Light Of The Repeal Of “Don’T Ask, Don’T Tell”, David Barnes

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

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?

A Dark Descent Into Reality: Making The Case For An Objective Definition Of Torture, Michael W. Lewis

Washington and Lee Law Review

The definition of torture is broken. The malleability of the term "severe pain or suffering" at the heart of the definition has created a situation in which the world agrees on the words but cannot agree on their meaning. The "V know it when I see it" nature of the discussion of torture makes it clear that the definition is largely left to the eye of the beholder. This is particularly problematic when international Law's reliance on self-enforcement is considered After discussing current misconceptions about intelligence gathering and coercion that are common to all sides of the torture debate, this …

The Lexington Principles On The Rights Of Detainees: A Transnational Legal Process Approach To Due Process, David Alan Jordan, Frederic L. Kirgis, R. Brooke Lewis, Thomas Greenwood, Bennett L. Ross, Kathryn M. Zunich

Scholarly Articles

In Boumediene v. Bush, decided June 12, 2008, the U.S. Supreme Court extended the constitutional privilege of habeas corpus to noncitizens detained at Guantanamo Bay, Cuba. Courts will now be called upon to assess the propriety of American detainee treatment practices against unclear constitutional standards. The strength and contours of the due process protections the U.S. Constitution will afford these detainees is still an unsettled question. The Lexington Principles are designed to help guide the development of American due process standards as they move outside our borders. These Principles are also intended to serve as a model for those …

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 …

Karen E. Woody, Putting Pandora On Trial, 98 J. Crim. L. & Criminology 699 (2008) (Reviewing Mark A. Drumbl, Atrocity, Punishment, And International Law (2007)), Karen E. Woody

Scholarly Articles

In the wake of increasing globalization over the past fifty years, international criminal law has transformed from a toothless shadow into a concrete reality; the International Criminal Court is the most recent and impressive institutional accomplishment. Unfortunately, international criminal law has enjoyed this progress on the heels of increasingly horrific international crimes. International adjudicatory institutions have taken many forms and the sentences they deliver have varied widely. In Atrocity, Punishment, and International Law, Mark Drumbl reviews the strides made in international criminal law from the Nuremberg trials through present-day trials, particularly those related to the crimes committed in Rwanda and …

Transnational Terrorist Financing: Criminal And Civil Perspectives, Mark A. Drumbl

Scholarly Articles

This note addresses the proscription of terrorist financing under transnational law. It considers both criminal and civil regulatory frameworks. Although the 9/11 attacks certainly galvanized jurisgeneration in this area, important treaties and customary principles preexisted those attacks. Insofar as the law on this topic is quite robust, this note does not provide a typology of every legal prohibition that touches upon terrorist financing. Instead, it offers an overview of the subject matter through case-studies drawn from international treaties and Alien Tort Claims Act litigation in the United States, and it also places the regulatory framework of terrorist financing within both …

Book Review, Jordan J. Paust, Beyond The Law: The Bush Administration’S Unlawful Responses In The ‘War’ On Terror (2007), Mark A. Drumbl

Scholarly Articles

The situation at Guantánamo is one of several past and ongoing examples of what Jordan Paust calls ‘dirty war tactics' deployed by the United States in response to the 9/11 attacks. In Beyond the Law: The Bush Administration's Unlawful Responses in the ‘War’ on Terror, Professor Paust describes these ‘dirty war tactics' and claims that, in undertaking them, the Bush Administration balefully has corroded the rule of law itself.

Inadequate Checks And Balances: Critiquing The Imbalance Of Power In Arms Export Regulation, Charles L. Capito Iii

Washington and Lee Law Review

No abstract provided.

Redefining Torture In The Age Of Terrorism: An Argument Against The Dilution Of Human Rights, Miri Lim

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Fear Of A Blackened Planet: Pressured By The War On Terror, Courts Ignore The Erosion Of The Attorney-Client Privilege And Effective Assistance Of Counsel In 28 C.F.R § 501.3(D) Cases, Chris Ford

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Guantanamo, Rasul, And The Twilight Of Law, Mark A. Drumbl

Scholarly Articles

In Rasul v. Bush, the Supreme Court held that U.S. district courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay. In this paper, I explore what has happened since the Rasul decision: most notably, the introduction of combatant status review tribunals as a response to Rasul and the challenges that have been filed thereto and adjudicated in the federal courts (Khalid, In re Guantanamo Detainee Cases); the charges brought against certain detainees by military commissions and challenges to these commissions filed in the …

'Lesser Evils' In The War On Terrorism, Mark A. Drumbl

Scholarly Articles

No abstract provided.

Prosecutor V Radislav Krstić: Icty Authenticates Genocide At Srebrenica And Convicts For Aiding And Abetting, Mark Drumbl

Scholarly Articles

The Krstić Appeals Chamber decision makes two major contributions to international criminal law. It also provides a number of additional insights and clarifications. In this case note, I will critically examine the two major contributions. Firstly, Krstić authenticates that genocide was in fact perpetrated against the Bosnian Muslims of Srebrenica. This serves an important didactic purpose. Srebrenica is the only incidence of genocide the ICTY has found amidst the pervasive violence that roiled the former Yugoslavia. Secondly, Krstić narrows the scope of joint criminal enterprise as a mechanism to attribute individual criminal liability for acts perpetrated by groups acting collectively. …

Imputing War Crimes In The War On Terrorism: The U.S., Northern Alliance, And 'Container Crimes', Ahmed S. Younis

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Self-Defense And The Use Of Force: Breaking The Rules, Making The Rules, Or Both?, Mark A. Drumbl

Scholarly Articles

This article examines shifts in international law regarding the use of force -- the jus ad bellum -- that emerged in the wake of the September 11, 2001, terrorist attacks and subsequently were invoked in part by the United States and United Kingdom to justify military intervention in Iraq. These shifts import some elasticity -- in time, space, and place -- into the preexisting legal understanding of self-defense. To be sure, the general consensus that supported the use of force in Afghanistan as a legitimate exercise of self-defense has diluted as the use of that force expanded into other theaters …

Don't Forget What We're Fighting For: Will The Fourth Amendment Be A Casualty Of The War On Terror?, Heath H. Galloway

Washington and Lee Law Review

No abstract provided.

Military Commissions And Courts-Martial: A Brief Discussion Of The Constitutional And Jurisdictional Distinctions Between The Two Courts, Timothy C. Macdonnell

Scholarly Articles

On 13 November 2001, President George W. Bush signed Military Order 222, authorizing the trial of non-U.S. citizens for war crimes by military commission.' Since the signing of that order, a contentious debate has raged over the possible use of military commissions to try suspected terrorists. As part of that debate, the media has used various terms to describe the proposed military commissions. They have called them "Secret Military Trials,"' "Military Tribunals,"' and "U.S. Military Court[s]." A Cable News Network internet story described military commissions as "essentially a courts-martial, or a military trial, during a time of war." This quotation …

Terrorist Crime, Taliban Guilt, Western Victims, And International Law, Mark A. Drumbl

Scholarly Articles

On September 11th, 2001, al-Qaeda terrorists attacked the United States and killed approximately 3,000 civilians from 81 countries. Traditionally, international law treats armed attacks differently than criminal attacks. States launch armed attacks against other states; organized insurgency movements having some level of command or political structure also may launch internal armed attacks against state governments. Individuals or groups, on the other hand, initiate criminal attacks. The law responds to criminal attacks through investigation and trial. The law permits states to use force against other states in self-defense to armed attacks.The September 11th attack was a war-like attack undertaken against a …

The Taliban’S ‘Other’ Crimes, Mark A. Drumbl

Scholarly Articles

This paper explores possible legal responses to the Taliban's 'other' crimes--those inflicted against Afghans during Taliban rule. This criminality largely has been rendered invisible by virtue of the international community's focus on punishing the Taliban's support of transnational terrorists, in particular al-Qaeda. This invisibility is problematic given that carefully constructed prosecutions of these 'other' crimes could play an important role in post-conflict reconciliation and national reconstruction in Afghanistan. Such reconciliation and reconstruction can legitimise a representative post-conflict state and curb terrorist recidivism.

Juridical And Jurisdictional Disconnects, Mark A. Drumbl

Scholarly Articles

Although extraterritorial trials for human rights abusers certainly achieve some justice, this Article posits -- through a case-study of post-genocide Rwanda -- that the effects of such trials are circumscribed by the fact they may have little meaning among perpetrators and victims in post-conflict societies. This limited meaning particularly attaches to trials conducted extraterritorially through international tribunals as well as trials conducted in foreign national courts through the exercise of what loosely is called "universal jurisdiction." This circumscribed meaning results in these trials' having limited deterrence effects, although they may go some way to satisfying the deontological need to punish …

Punishment, Postgenocide: From Guilt To Shame To Civis In Rwanda, Mark A. Drumbl

Scholarly Articles

Following the 1994 Rwandan genocide, national and international trials set out to encourage national reconciliation, promote peace, punish perpetrators, foster a culture of human rights, and effect justice. In this Article, Professor Mark Drumbl questions the ability of these trials to achieve these goals and suggests they may in fact aggravate ethnic identity politics, thereby threatening Rwanda's long-term stability. He argues that the highly interdependent yet dualist nature of Rwandan society, together with the widespread level of participation in and victimization by the genocide, create a situation where accountability for the violence and the deterrence of future violence can be …

Punishment Goes Global: International Criminal Law, Conflict Zones, And Gender (In)Equality, Mark A. Drumbl

Scholarly Articles

The creation of the International Criminal Court (ICC) enables the international community to hold accountable those who inflict violence in the form of sexual and ethnic hatred. Drawing on case studies from Rwanda and Bosnia, the author observes the extent to which retributive criminal justice can deter offenders and foster structural societal change.

Sobriety In A Post‐Genocidal Society: Good Neighborliness Among Victims And Aggressors In Rwanda?, Mark A. Drumbl

Scholarly Articles

Now as Rwanda begins to mourn the firth anniversary of its genocide, it should also celebrate the fifth anniversary of its survival. As time passes, Rwanda enters a stage of social and historical development which can be referred to as the "post-genocidal" stage. Some would say that Rwanda is actually in an intra-genocidal phase, given the persistence of Hutu rebel insurrection throughout the country, specifically in the Ruhengeri prefecture of the north-west. Although the merits of this classification can be debated, fatalistically characterizing Rwanda to be intra-genocidal assumes an ability to look in the future, a task no scholar is …

Capital Punishment And The Courts-Martial: Questions Surface Following Loving V. United States, Christine Daniels

Washington and Lee Law Review

No abstract provided.