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Not Quite A Civilian, Not Quite A Soldier: How Five Words Could Subject Civilian Contractors In Iraq And Afghanistan To Military Jurisdiction , Katherine Jackson

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Strange Case Of Lieutenant Waddell: How Overly Restrictive Rules Of Engagement Adversely Impact The American War Fighter And Undermine Military Victory., Jeffrey F. Addicott

St. Mary's Law Journal

A rules of engagement (“ROE”) Review Board should be created in order to provide an impartial review process for service members facing adverse administrative action for violations of ROE. Politicians defining the ROE, rather than military experts, create rules that are so restrictive and confusing that they ultimately run counter to the military objective of victory. A violation of a ROE can be a criminal offense under the Uniform Code of Military Justice, but violations are issued arbitrarily, and often the military does not charge the service member with a crime, instead using adverse administrative measures to impose punishment. While …

Revisiting Extraterritoriality After Al-Skeini: The Echr And Its Lessons, Barbara Miltner

Michigan Journal of International Law

On July 7, 2011, the European Court of Human Rights, sitting as a Grand Chamber, handed down two long-awaited judgments on the subject of the extraterritorial reach and scope of the European Convention on Human Rights (ECHR). In both Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom, the underlying issue was whether or not the United Kingdom was bound by its treaty obligations under the ECHR with regard to its military presence in Iraq. Al-Skeini involved the joined claims of six Iraqi nationals whose relatives were killed while allegedly under U.K. jurisdiction in Iraq; they claimed a lack of …

Finding A New Green In Postwar Iraq And Afghanistan: An Argument For Cooperation, Nathan Kent Miller

William & Mary Environmental Law and Policy Review

No abstract provided.

Limited War And The Constitution: Iraq And The Crisis Of Presidential Legality, Bruce Ackerman, Oona Hathaway

Michigan Law Review

We live in an age of limited war. Yet the legal structure for authorizing and overseeing war has failed to address this modern reality. Nowhere is this failure more clear than in the recent U.S. conflict in Iraq. Congress self-consciously restricted the war's aims to narrow purposes-expressly authorizing a limited war. But the Bush Administration evaded these constitutional limits and transformed a well-defined and limited war into an open-ended conflict operating beyond constitutional boundaries. President Obama has thus far failed to repudiate these acts of presidential unilateralism. If he continues on this course, he will consolidate the precedents set by …

When Men Are Harmed: Feminism, Queer Theory, And Torture At Abu Ghraib, Aziza Ahmed

Faculty Scholarship

In this Article I explore the assertions of "anti-imperialist" feminist scholars who critique "imperial feminism" for its support of the war on terror (WOT). I bring into this analysis the proposition by queer theorists that feminist reliance on male/ female subordination has the potential to not only obscure harm in times of war but also to perpetuate it. As a case study, I focus on the Abu Ghraib prison photos that depict, in part, female soldiers torturing male Iraqi prisoners. In conducting this analysis, I reveal the analytical limitations of dominance and cultural feminists, particularly with regard to male harm …

A Sense Of Duty: The Illusory Criminal Jurisdiction Of The U.S./Iraq Status Of Forces Agreement, Chris Jenks

Faculty Journal Articles and Book Chapters

The Status of Forces Agreement (SOFA) between the U.S. and Iraq entered force on January 1, 2009 and established the legal framework by which U.S. personnel continue to operate in Iraq. The SOFA followed lengthy and contentious negotiations, which many commentators claim that Iraq “won,” extracting significant concessions from the U.S. in the process. While that may true in some areas, the opposite seems to be the case in one of the most contentious areas of this or any SOFA – criminal jurisdiction over service members. This article examines the criminal jurisdiction article of the Iraq SOFA and posits that …

The Law And Policy Implications Of 'Baited Ambushes' Utilizing Enemy Dead And Wounded, Chris Jenks

Faculty Journal Articles and Book Chapters

When a state's armed forces is engaged in hostilities, how long after an engagement or firefight before the international humanitarian law requirement to search for and care for the wounded and find and bury the dead is triggered? This military practitioner's note discusses the legal and policy implications of 'baited ambushes,' the practice of utilizing wounded and dead enemies as the bait for follow on forces, which are then engaged.

Extraordinary Rendition: A Wrong Without A Right, Robert Johnson

University of Richmond Law Review

No abstract provided.

Combatants And The Combat Zone, Mary Ellen O'Connell

University of Richmond Law Review

No abstract provided.

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 …

International Decision: Munaf V. Geren, Harlan G. Cohen

Scholarly Works

This International Decision case comment, the final version of which will be published in Volume 102, No. 4, of the American Journal of International Law (forthcoming), examines the U.S. Supreme Court's decision in Munaf v. Geren, a case arising out of U.S. operations in Iraq and allegations of potential torture in Iraqi custody. In that decision, a unanimous Supreme Court held that the federal courts have jurisdiction under the habeas corpus statute to hear claims brought by American citizens held overseas by American forces "operating subject to an American chain of command, even when those forces are acting as a …

Rethinking The Political Future: An Alternative To The Ethno-Sectarian Division Of Iraq, Paul Williams, Matt Simpson

Scholarly Articles in Law Reviews & Journals

In the coming year, the political leadership in Iraq will need to make a final determination as to whether they are going to structure the state of Iraq as a federal state with ethnically heterogeneous provinces, a loose federal state with ethnically defined provinces or regions, or whether they are going to divide the state into three new states based on ethno-sectarian lines.

A number of prominent American law makers and foreign policy shapers have strongly advocated for the soft, and sometimes hard, partition of Iraq — either through the creation of a loose federal structure based on ethno-sectarian lines, …

Rules Of Engagement: Seeking Moral And Legal Sufficiency In The 21st Century, Tanner Williams

Global Tides

Modern conflict in Iraq and Afghanistan has proved to be unlike any other conflict in history. United States and Coalition forces are faced with an insurgent enemy that defies all pre-established Laws of Armed Combat. As we transition from a wartime operations to a peacekeeping environment, it is important to reflect upon the moral and legal struggles that our soldiers face in the line of duty. Certainly, it cannot be easy to distinguish between lawful or unlawful combatants and innocent civilians in a war that lacks a clearly defined enemy. As a result, it is necessary to examine our rules …

Iraqi Resettlement: Why Congress Won't Act, Daniel J. Whelan

Human Rights & Human Welfare

After making an excellent case for the plight of Iraqi asylum seekers who have served as valuable allies to the United States in Iraq, Joseph Huff-Hannon’s article suggests that Congress should play a stronger role in developing a resettlement policy to allow Iraqis, who have been on “our side,” to come to the U.S. Given the current political climate on Iraq—and with Congressional Democrats desperate to score some kind of victory in its battle with the Bush White House—what exactly is holding them back?

Will Refuge Continue To Be Elusive, Katherine Gockel

Human Rights & Human Welfare

According to U.N. estimates, if current trends continue, the number of Iraqi asylum seekers by year-end could reach between 40,000 to 50,000. The influx of Iraqis into states such as Syria and Jordan also threatens to be a destabilizing force in those countries. Therefore, it is unreasonable to expect these states to individually cope with migration flows of this magnitude.

Fleeing From Violence Versus Fleeing From Poverty, Michael Goodhart

Human Rights & Human Welfare

Nour al Khal worked as a translator for New York Times reporter Steven Vincent, who was murdered by Shiite militants in Iraq. Vincent’s widow has been trying to help al Khal (who was kidnapped and shot by the same group who killed Vincent) win asylum in the United States. So far political and bureaucratic obstacles have proven insurmountable.

Iraqi Resettlement: Why Congress Will Act, David A. Weinberg

Human Rights & Human Welfare

I would like to commend Human Rights & Human Welfare for their recent roundtable on the Iraqi refugee crisis. The Roundtable rightly draws attention to the United States government’s woefully inadequate efforts thus far to address a major humanitarian crisis of its own making.

However, I do not agree with Professor Daniel Whelan’s assessment of “why Congress won’t act” on Iraqi resettlement. Dr. Whelan argues that the new Congress appears reluctant to resettle a reasonable number of Iraqi refugees in danger because Democrats fear that doing so would precipitate Iraqi state failure by means of “brain drain.” Instead, I would …

Would Iraqi Refugees Please Disappear, Richard A. Falk

Human Rights & Human Welfare

I am grateful to Joseph Huff-Hannon for drawing our attention vividly and movingly to the plight of Iraqi refugees, its magnitude and cruelty. There are more than two million Iraqi refugees, with an estimated 50,000 per month added to the total. Many are languishing in terrible conditions in such neighboring countries as Syria and Jordan. These states, neither of which are notable as places of refuge, lack the capabilities for humane treatment even if their governments were altruistically inclined. Many Iraqis cannot even find such refuge, and remain hapless nomads in search of a sanctuary country. The U.S. refusal to …

October Roundtable: Introduction

Human Rights & Human Welfare

An annotation of:

“No Refuge Here: Iraqis Flee, but Where?” by Joseph Huff-Hannon. Dissent. Summer 2007.

The Iraq Debacle: The Rise And Fall Of Procurement-Aided Unilateralism As A Paradigm Of Foreign War, Charles Tiefer

All Faculty Scholarship

Four years of American mishandling of procurement of military support and reconstruction in Iraq insurgency has produced countless examples of waste and abuse. This can be attributed to three factors. First, the United State's diminished use of competitive contracting minimized scrutiny of the contractor's performance. Second, the Government's unilateralist approach to reconstruction overburdened the administration with the political and financial costs of "nation-building." Third, the United States' failure to account for Iraqi funds eliminated checks on misguided procurement and other spending. In this article, the author discusses the intersection of acquisition reform in the context of the United States' unilateral …

Wars Against Civilians Are Unjust Wars, Richard A. Falk

Human Rights & Human Welfare

For those of us old enough to recall the anti-war testimony of Vietnam vets during the early 1970s, reading the chilling report by Hedges and Al-Arian on the attitudes of Iraq war vets is shocking, and yet not surprising. It is shocking because of the eyewitness confirmation of cruelty and lethal brutality on a regular basis in the interactions between the coalition army of occupation and Iraqi civilian society. Sadly, it is not shocking because of the nature of the violent resistance to occupation being encountered by American forces in Iraq, giving rise to a Vietnam-style mentality of counterinsurgency in …

Bad Apples Or Bad Policies?, Daniel J. Whelan

Human Rights & Human Welfare

In a scene from the Woody Allen film Hannah and Her Sisters, the haughty and cantankerous character Frederick (Max von Sydow) is telling his girlfriend (Barbara Hershey) how he spent the evening flipping through channels on television. Ever the arrogant social critic, Frederick remarks,

You missed a very dull TV show on Auschwitz. More gruesome film clips. And more puzzled intellectuals declaring their mystification over the systematic murder of millions. The reason they can never answer the question: “How could it possibly happen?” is that it’s the wrong question. Given what people are, the question is: “Why doesn't it happen …

September Roundtable: Introduction

Human Rights & Human Welfare

An annotation of:

“The Other War: Iraq Vets Bear Witness” by Chris Hedges and Laila Al-Arian. The Nation, July 30, 2007.

Occupational Hazard, Michael Goodhart

Human Rights & Human Welfare

“The Other War” describes how the patrols, supply convoys, checkpoints, raids, and arrests, which make up the daily routines of U.S. soldiers in Iraq, sometimes involve degrading and abusive treatment of Iraqi civilians. Through interviews with some of those soldiers, the article portrays the everyday tragedy of the Iraq war and demonstrates how the very policies used to “secure” the country are creating greater insecurity and sparking Iraqi resentment of the occupation. The authors’ main point is that such abuses are inevitable under what they call “misguided and brutal colonial wars and occupations” like Iraq, “the French occupation of Algeria… …

Facing Up To The Truth, Susan E. Waltz

Human Rights & Human Welfare

American GIs who liberated Dachau from the Nazis in April 1945 exist in our collective memory as iconic representations of the American soldier-hero: competent and capable, disciplined, principled and fundamentally good. From their collective example, we expect American soldiers to reveal, report, and excoriate war crimes. This makes it difficult to acknowledge that Americans may also commit war crimes—and on a regular basis.

May Roundtable: Introduction

Human Rights & Human Welfare

An annotation of:

“The Politics of Naming: Genocide, Civil War, Insurgency” by Mahmood Mamdani. London Review of Books. March 8, 2007.

The Moral Vocabulary Of Violence, David L. G. Rice

Human Rights & Human Welfare

What is at stake in labeling a particular incidence of large-scale violence “genocide”? Mahmood Mamdani rightly argues that “genocide” is an insufficient description of the conflict in Darfur. I would suggest that the problematic nature of that terminology goes back to its inception after World War II. Activists have inherited the concept of “genocide” from a particular historical moment. Now, “ genocide” carries unique moral weight in the discourse of international politics. When violence against civilians has been widely accepted as a necessary outcome of the preservation of peace, activists find it necessary to imagine a worse evil than the …

The Return Of Moral Equivalence, J. Peter Pham

Human Rights & Human Welfare

During the latter stages of the Cold War, one school of ethical analysis, ultimately labeled as “moral equivalence” by the late Jeane Kirkpatrick, measured Western liberal democracies against utopian standards in a radical critique which redefined the political discourse, erasing distinctions between the Soviet Union and its satellites on the one hand and the United States and its allies on the other.

Missing The Point, Colin Thomas-Jensen

Human Rights & Human Welfare

“What would happen if we thought of Darfur as we do of Iraq, as a place with a history and politics—a messy politics of insurgency and counterinsurgency?” (§4). This is the most telling question posed by Professor Mahmood Mamdani in “The Politics of Naming: Genocide, Civil War, Insurgency.” The implication is that the growing public demand for strong international action—military or otherwise—to halt the atrocities in Darfur is somehow unwarranted because people have failed to understand that the systematic crimes against humanity committed against civilians in Darfur (and indeed Iraq) are an inevitability of “the messy politics of insurgency and …