audio for the January 25th “Mind the Gap” IHL presentation

February 3, 2010

I posted about this event last week. The audio is now available:

1.     Mind the Gap: International Human Rights Law and the Law of Armed Conflict?

Event Information
Monday, January 25 2010 / 2:30 pm
Tillar House – 2223 Massachusetts Avenue, NW
Event Link

Professors Gabriella Blum and Geoffrey Corn have both recently published provocative articles that stake out quite different positions over the legal uncertainties posed by the applicability of human rights standards to situations where the law of war is applied. To what extent are human rights standards applicable in armed conflicts and in how far is the jurisprudence of regional human rights courts pertinent? For example, does human rights law preclude combatants in war from killing each other’s soldiers, regardless of their role, function, or degree of threat?

For audio of this event, please click here.


Al Mutairi v. United States; forthcoming scholarship

August 5, 2009

1. Khalid Abdullah Mishal Al Mutairi v. United States (D.D.C. July 29, 2009) (opinion explaining decision to grant habeas to GTMO detainee)

Back on July 29th, Judge Kollar-Kotelly granted Al Mutairi’s habeas petition.  The underlying opinion was not released at the time, but now is available.  It is posted here.  Key points include:

On the admissibility of hearsay: “The Court finds that allowing the use of hearsay by both parties balances the need to prevent the substantial diversion of military and intelligence resources during a time of hostilities, while at the same providing Al Mutairi with a meaningful opportunity to contest the basis of his detention. The Court is fully capable of considering whether a piece of evidence (whether hearsay or not) is reliable, and it shall make such determinations in the context of the evidence and arguments presented during the Merits Hearing -including any arguments the parties have made concerning the unreliability of hearsay evidence.” (slip op. at 4)

On the government’s request for a presumption that its evidence is both accurate and authentic: “the Government argues that a presumption as to its evidence is both appropriate and necessary. The Court disagrees. One of the central functions of the Court in this case is “to evaluate the raw evidence” proffered by the Government and to determine whether it is “sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of clarity.” Parhat, 532 F.3d at 847. Simply assuming the Government’s evidence is accurate and authentic does not aid that inquiry. Cf Ahmed v. Obama, 613 F. Supp. 2d 51, 55 (D.D.C. 2009) (rejecting a presumption of accuracy for the Government’s evidence and holding that ”the accuracy of much of the factual material contained in [the Government's] exhibits is hotly contested for a host of different reasons …”).” (slip op. at 5)

On the substantive scope of the government’s detention authority: The Court agrees that the President has the authority to detain individuals who are “part of’ the Taliban, al Qaeda, or associated enemy forces, but rejects the Government’s definition insofar as it asserts the authority to detain individuals who only “substantially supported” enemy forces or who have “directly supported hostilities “in aid of enemy forces. While evidence of such support is undoubtedly probative of whether an individual is part of an enemy force, it may not by itself provide the grounds for detention. Accord Mattan, 2009 U.S. Dist. LEXIS 43286 at *13-*15. Accordingly, the Court shall consider whether AI Mutairi is lawfully detained in the context of the following standard:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of the Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act in aid of such enemy armed forces.” (slip op. at 8)

On the credibility of Al Mutairi’s version of events (i.e., that he traveled from Kuwait to Afghanistan after 9/11 to build a mosque): “Based on these identified inconsistences, implausibilities, and in some respects, impossibilities, the Court does not credit Al Mutairi’s version of events that occurred while he was in Afghanistan.”  (slip op. at 15-16)

On the significance of the Court’s decision to reject Al Mutairi’s account: “Notwithstanding the Court’s conclusions with respect to Al Mutairi’s version of events, the Court’s inquiry is far from complete. Because Al Mutairi has no burden to prove his innocence, the Court must now assess the Government’s evidence to determine whether it has demonstrated by a preponderance of the evidence that during the time for which Al Mutairi cannot account, he trained with or became a part of al Wafa (according to the Government, an associated force of al Qaida), or al Qaida itself.” (slip op. at 16)

On the credibility of the government’s evidence: This portion of the opinion is redacted in significant part, but is still worth reading if you want a sense of how Judge Kollar-Kotelly parsed the evidence.  She summarized her assessment as follows: “In summary, the Court has credited the Government’s evidence that (1) Al Mutairi’s path of travel into Afghanistan was consistent with the route used by al Wafa to smuggle individuals into Afghanistan to engage in jihad; (2) that Al Mutairi’s travel from Kabul to a village near Khowst was consistent (in time and place) with the route of Taliban and al Qaida fighters fleeing toward the Tora Bora mountains along the Afghanistan-Pakistan border, and (3) Al Mutairi’s non-possession of his passport is consistent with an individual who has undergone al Qaida’s standard operating procedures that require trainees to surrender their passports prior to beginning their training. The Court has also found minimally probative on this record the appearance of Al Mutairi’s name and reference to his passport. Taking this evidence as a whole, the Government has at best shown that some of Al Mutairi’s conduct is consistent with persons who may have become a part of al Wafa or al Qaida, but there is nothing in the record beyond speculation that Al Mutairi did, in fact, train or otherwise become a part of one or more of those organizations, where he would have done so, and with which organization. While Al Mutairi’s described peregrinations within Afghanistan lack credibility, the Government has not filled in these blanks nor supplanted Al Mutairi’s version of his travels and activities with sufficiently credible and reliable evidence to meet its burden by a preponderance of the evidence. Accordingly, the Court shall grant Al Mutairi’s petition for habeas corpus.”

2. Forthcoming scholarship

The National Strategy Forum Review, “Strategic Challenges Near and Far” (August 2009)

NSFR is a terrific publication, one that should be more widely read.   The most recent issue is posted as a pdf here, and its contents are as follows:

August 2009 Publisher’s Note


The United States and Mexico: Mutual Problems, Joint Solutions The following five essays discuss many of the challenges that the United States and Mexico face in coordinating effective border policies.  The goal is to elucidate the many areas where more cooperation and tighter joint strategies are needed by both countries to achieve their national goals.

Reasons of State that Sustain Mexico’s Strategy Against Organized Crime
Eduardo Medina-Mora

The Mexico-United States Border: A Fragmented Agenda
Luis Herrera-Lasso M.

The Mérida Initiative: A New Security Cooperation Partnership
David T. Johnson

Mexico’s Strategy
Iñigo Guevara Moyano

Mexico’s Polity and Economy: Security vs. Progress and Our Failed Integration
José Luis Valdés-Ugalde

Special Report:
American Foreign Policy Toward Pakistan
Frank Schell, Richard E. Friedman, and Lauren Bean

Regions at a Glance:
War in Afghanistan: Achieving a Successful Civilian Surge
Catherine Dale

NSF Insider Views:
Trying Terrorists
Richard E. Friedman

The Iranian and North Korean Nuclear Programs and International Law
John Allen Williams

Speaker Summary:
Ilan Berman and Winning the Long War
Eric S. Morse

“Jurors Believe Interrogation Tactics are Not Likely to Elicit False Confessions: Will Expert Witness Testimony Inform Them Otherwise?”

Psychology, Crime & Law, 2009

IRIS BLANDON-GITLIN, affiliation not provided to SSRN
KATHRYN SPERRY, affiliation not provided to SSRN
RICHARD A. LEO, University of San Francisco – School of Law
Email: rleo@usfca.edu

Situational factors – in the form of interrogation tactics – have been reported to unduly influence innocent suspects to confess. This study assessed jurors’ perceptions of these factors and tested whether expert witness testimony on confessions informs jury decision-making. In Study 1, jurors rated interrogation tactics on their level of coerciveness and likelihood that each would elicit true and false confessions. Most jurors perceived interrogation tactics to be coercive and likely to elicit confessions from guilty, but not from innocent suspects. This result motivated Study 2 in which an actual case involving a disputed confession was used to assess the influence of expert testimony on jurors’ perceptions and evaluations of interrogations and confession evidence. The results revealed an important influence of expert testimony on mock-jurors decisions.

“Human Rights and Military Decisions: Counterinsurgency and Trends in the Law of International Armed Conflict”
University of Pennsylvania Journal of International Law, Vol. 30, p. 1367, 2008-09
UNLV William S. Boyd School of Law Legal Studies Research Paper No. 09-13

DAN E. STIGALL, U.S. Army JAG Corps
Email: dan.stigall@us.army.mil
CHRISTOPHER L. BLAKESLEY, William S. Boyd School of Law, UNLV
Email: chris.blakesley@unlv.edu
CHRIS JENKS, Government of the United States of America – Judge Advocate General’s Corps
Email: mcjenks03@yahoo.com

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 – given the nature of contemporary conflict, it is no longer possible to address one body of law without also dealing with the other. This has been the most dramatic trend for LOIAC in the last decade. It will doubtlessly continue.

This article briefly addresses this interesting and important phenomenon in the context of the history of LOIAC and modern warfare, which has changed from large-scale clashes of the military might of sovereign states to conflict characterized by long-term guerilla and asymmetric warfare, concomitant counterinsurgency, and stability operations. The nature of contemporary stability operations and counterinsurgency has broadened the scope of military operations so that commanders must now engage in a range of activities not traditionally considered combat-related. Associated with this expanded range of military responsibility is an expanded range of legal responsibility. Hence, we arrive at the necessity and value of human rights law. We briefly identify the general implications of the legal trend and illuminate some notable aspects of the legal landscape that loom before military commanders and their advisors.

The issue of where, when, and how human rights protections apply is essential to understanding their functionality. The treatment of detainees is a prime example of the expanded range of legal responsibility that implicates human rights law. Thus, our discussion of jurisdiction includes analysis of variations among some countries and various regional and international organizations, which differ in their positions on the proper extraterritorial application or jurisdictional scope of their own and international human rights norms. This includes analysis of recent interesting decisions from the British House of Lords and the European Court of Human Rights. Finally, we discuss the Copenhagen Process, which began with the first Copenhagen Conference held in October 2007. The Copenhagen Process is an effort to establish a common platform for the handling of detainees which illustrates how intertwined strands of international human rights law and LOIAC have become. It may also represent a way, if not to cut the Gordian knot, then to move past it with a better recognition of how both legal strands will influence future military operations.

Killing Civilians

Adil Ahmad Haque

Rutgers, The State University of New Jersey – School of Law-Newark

There is a gap between the international humanitarian law of Geneva and the international criminal law of Rome, a gap between the law we have and the law we need if we are to “ensure respect for and protection of the civilian population” caught in the midst of armed conflict. The Rome Statute fails to faithfully translate the prescriptive, action-guiding rules of humanitarian law into a correspondingly robust set of evaluative, judgment-guiding rules suitable for criminal adjudication. The result is a document that is not only substantively incomplete but morally incoherent as well. The purpose of this article is to expose these defects and propose a way to overcome them. Drawing on contemporary criminal law theory, it offers a new approach to war crimes against civilians, one that better protects and respects the value of civilian life.

The Rome Statute is substantively incomplete in the sense that it fails to enforce core principles of humanitarian law designed to protect civilians. As a result, it is possible for a combatant to kill civilians with a culpable mental state, without justification or excuse, and in violation of humanitarian law, yet escape criminal liability under the Rome Statute. The Rome Statute is morally incoherent in the sense that the legal definitions of the relevant war crimes ignore or misapply fundamental criminal law categories—conduct offenses and result offenses, material and mental elements, offenses and defenses—and inadvertently sever the relevant prohibitions from the humanitarian values that should provide their moral foundation. This article proposes a redefined offense of Willful Killing that fully incorporates the principles of distinction and discrimination as well as a new affirmative defense that fully incorporates the principles of necessity and proportionality. Only by adopting such an approach can international criminal law provide civilians their full measure of legal protection and moral recognition.

“Managerial Judging, Court’s Limited Information and Parties’ Resistance: An Empirical Assessment of Why the Reforms to Expedite the Procedure of the International Criminal Tribunal for the Former Yugoslavia Did Not Work”

UCLA School of Law, Law & Economics Research Paper No. 09-12

MAXIMO LANGER, University of California, Los Angeles – School of Law
Email: langer@law.ucla.edu
JOSEPH W. DOHERTY, University of California, Los Angeles – School of Law
Email: doherty@law.ucla.edu

This article analyzes whether managerial judging reforms that were introduced to expedite procedure at the International Criminal Tribunal for the former Yugoslavia (ICTY) achieved their goal. Using survival analysis – Weibull regression – the paper tests the hypothesis that the higher the number of reforms a case was subjected to, the shorter the pretrial and trial phase of that case should be. Our six models for pretrial and trial reveal that in all pretrial and trial models the number of reforms is significantly correlated with longer pretrial and trial. The article explains that reforms made process longer rather than shorter because ICTY judges did not use their managerial powers or used them deficiently, and prosecution and defense managed to neutralize the implementation of the reforms. To explain judges’ behavior, the paper articulates an unnoticed challenge for managerial judging – the court is likely to have limited information about the case that may lead judges to restrict use of their managerial powers to avoid making inefficient decisions. In addition, ICTY did not have an implementation plan to encourage judges to change their behavior. The paper also explains the incentives that prosecution and defense had to neutralize the reforms.

“Child Soldiers: Agency, Enlistment, and the Collectivization of Innocence”

Washington & Lee Legal Studies Paper No. 2009-7

MARK A. DRUMBL, Washington and Lee University School of Law
Email: DRUMBLM@WLU.EDU

This Paper reviews how international criminal law proscribes the conscription, enlistment, or use of children in armed conflict. This legal regime then is contrasted with the social reality of child soldiering, in particular as revealed by ethnographic research from Sierra Leone, the DRC, and northern Uganda regarding how children end up in armed conflict and what they do during conflict. Field research suggests that children exercise greater agency in enlisting in armies, fighting forces, and militias than international criminal law assumes; what is more, field research also suggests that, despite the existence of staggeringly coercive pressures, some children may exercise greater authorship over the violence they commit than international lawyers and human rights workers assume. An individual can be both a victimizer and a victim at the same time – a reality with which international criminal law remains queasy.

Assessing the agency of child soldiers is a difficult task that requires great sensitivity, care, and nuance. It is considerably easier to prejudge ex ante that they have no responsibility than to examine ex post why, exactly, they join militias and then why, exactly, some among them commit terrible crimes. International criminal law, however, ought to be the subject of objective study and dispassionate inquiry. The soothing path that assuages collective sensibilities is not necessarily the best path to protect children from endemic violence, to safeguard and heal post conflict societies, or to promote the best interests of those children who commit international crimes. International criminal lawyers should encourage, instead of gloss over, the hard work and discomforting questions that should be addressed in order to reintegrate children who perpetrate grievous atrocity in a salutary, viable manner that dissuades their recidivism, ostracism, and marginalization. Atrocity trials for children are not a solution; neither, however, is an absence of any accountability mechanism.


United States v. Jawad; forthcoming scholarship

February 5, 2009

1. United States v. Jawad (Ct. Mil. Com. Rev. Feb. 4, 2009)

The U.S. Court of Military Commission Review has granted the government a stay until May 20th in United States v. Jawad, in order to give the administration time to review its military commission policy as contemplated in EO 13,492 (i.e., one of the executive orders issued by President Obama relating to detention policy during his first week in office).

Note that this ruling applies only to the Jawad appeal (the government is appealing an order by the trial judge that excluded certain statements made by the defendant on grounds of coercion).  For the moment, other proceedings in the military commission system have not been stayed.  The Court of Mil. Com. Review’s order is here (thanks to SCOTUSblog). Read the rest of this entry »


forthcoming scholarship

January 27, 2009

Symmetry and Selectivity: What Happens in International Law When the World Changes

Chicago Journal of International Law, (forthcoming)

Paul B. Stephan (Univ. of Virginia – Law)

This article has a simple hypothesis: Selectivity in international law increases as international relations become more symmetrical. Conversely, international law becomes more universal as asymmetry grows. This relation holds true during the modern period. Its existence in turn supports the theoretical claim that the content of international law reflects the rational interests of those actors that make it. Read the rest of this entry »


forthcoming scholarship

December 15, 2008

* Forthcoming scholarship

Foreign Affairs Originalism in Youngstown’s Shadow

St. Louis University Law Journal (Vol. 53, 2008)

Stephen I. Vladeck

American University Washington College of Law

In An Originalism for Foreign Affairs?, Professor Ingrid Wuerth argues that originalism, under a number of different conceptualizations, is an awkward fit in the field of foreign affairs. In one sense, as Professor Wuerth suggests, originalism fails to answer many of the central questions of foreign affairs scholarship. In another sense, certain foreign affairs questions may, in her words, undermine the positive case for originalism. Either way, Professor Wuerth concludes, originalists should pay more attention to foreign affairs, and foreign affairs scholars should pay more attention to the competing methodologies of contemporary constitutional interpretation. Read the rest of this entry »


Boim v. Holy Land; OSI fellowship; forthcoming scholarship

December 5, 2008

1. Boim v. Holy Land Foundation for Relief & Development (7th Cir. Dec. 3, 2008) (en banc)

Available at: http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=05-1815_083.pdf

The Boim litigation arises out of the murder by Hamas of David Boim, a dual Israeli-American citizen, near Jerusalem in 1996.  Boim’s family brought suit against Muhammad Salah and a series of organizations, arguing that they raised money for Hamas and thereby were subject to civil liability under 18 USC 2333.

The en banc 7th Circuit, in an opinion by Judge Posner, holds confirms this theory of liability.  Among other things, the opinion holds that: Read the rest of this entry »


United States v. Yahya; forthcoming scholarship

September 17, 2008

1. United States v. Yahya (S.D. Fla. 9/11/08)

Superseding indictment returned in Miami case involving export of dual-use goods to Iran, stemming from an investigation of the use of US-made goods in IEDs in Iraq.

From the press release:

A federal grand jury in Miami, FL, has returned a Superseding Indictment charging eight individuals and eight corporations in connection with their participation in conspiracies to export U.S.-manufactured commodities to prohibited entities and to Iran. The defendants are named in a thirteen (13) count Indictment – returned on Sept. 11, 2008 and unsealed today — that includes charges of conspiracy, violations of the International Emergency Economic Powers Act and the United States Iran Embargo, and making false statements to federal agencies in connection with the export of thousands of U.S. goods to Iran.

The Superseding Indictment alleges that the defendants purchased, and then illegally exported to ultimate buyers in Iran, numerous “dual use” commodities. “Dual-use” commodities are goods and technologies that have commercial application, but could also be used to further the military or nuclear potential of other nations and could be detrimental to the foreign policy or national security of the United States. In this regard, the Superseding Indictment alleges that the defendants caused the export of 120 field-programmable gate arrays, more than 5000 integrated circuits of varying types, approximately 345 Global Positioning Systems (“GPS”), 12,000 Microchip brand micro-controllers, and a Field Communicator. All of these items have potential military applications, including as components in the construction of improvised explosive devices (IEDs).

The charges announced today are the result of an extensive inter-agency investigation into the use of U.S.-made goods in the construction of IEDs and other explosive devices used against Coalition Forces in Iraq and Afghanistan.

Charged in the Superseding Indictment are: Ali Akbar Yahya, an Iranian national and naturalized British citizen; F.N. Yaghmaei, a/k/a ” Farrokh Nia Yaghmaei,” an Iranian national; Mayrow General Trading, Atlinx Electronics, Micatic General Trading, Madjico Micro Electronics, a/k/a “MME,” and Al-Faris, all Dubai-based businesses; Neda Industrial Group, an Iran-based business; Bahman Ghandi, a/k/a “Brian Ghandi,” an Iranian national; Farshid Gillardian, a/k/a “Isaac Gillardian,” a/k/a “Isaac Gill,” an Iranian national and a naturalized British citizen; Kaam Chee Mun, a/k/a “Brian Kaam,” a resident of Malaysia; Djamshid Nezhad, a/k/a “Reza,” a resident of Germany; Ahmad Rahzad, a/k/a “Saeb Karim,” an Iranian national; Majid Seif, a/k/a “Mark Ong,”a/k/a “Matti Chong,” an Iranian national residing in Malaysia; and Eco Biochem Sdn BHD and Vast Solution Sdn BHD, Malaysian businesses.

The defendants are charged with purchasing and causing the export of U.S. goods to Iran through middle countries, including the United Arab Emirates, Malaysia, England, Germany, and Singapore. More specifically, the charges in the Indictment are as follows:

  • Count 1 of the Superseding Indictment charges defendants Yahya, Yaghmaei, Mayrow General Trading, Atlinx Electronics, Micatic General Trading, Majidco Micro Electronics, Al-Faris, and Neda Industrial Group with conspiracy to export goods to Iran and to defraud the United States, in violation of the International Emergency Economic Powers Act, Title 50, United States Code, Sections 1702 and 1705(a), the United States Iran Embargo, and the Export Administration Regulations, and Title 18, United States Code, Section 371.
  • Counts 2 through 5 charge defendants Yahya, Yaghmaei, Micatic, and Mayrow with exporting U.S. goods from the United States to Iran, in violation of the International Emergency Economic Powers Act and the United States Iran Embargo.
  • Counts 6 through 8 charge defendants Yahya, Yaghmaei, Majidco, Micatic, and Mayrow with making false statements in federally mandated shipping documents regarding the ultimate destination and use of the goods, in violation of Title 18, United States Code, Section 1001(a)(2).
  • Count 9 charges defendants Yahya, Mayrow, Al-Faris, Ghandi, Gillardian, Mun, Nezhad, Rahzad, Seif, Eco Biochem, and Vast Solution with conspiracy to export goods to Iran, in violation of the International Emergency Economic Powers Act, Title 50 United States Code, Sections 1702 and 1705(a), the United States Iran Embargo, and the Export Administration Regulations, and to defraud the United States, in violation of Title 18, United States Code, Section 371.
  • Counts 10 and 11 charge defendants Al-Faris, Seif, and Vast Solution with exporting U.S. goods from the United States to Iran, in violation of the International Emergency Economic Powers Act and the United States Iran Embargo.
  • Counts 12 and 13 charge defendant Seif with making false statements by misrepresenting the ultimate destination and use of the goods on Federal Form BS-711 Statement By Ultimate Consignee and Purchaser, in violation of Title 18, United States Code, Section 1001(a)(2).

2. Forthcoming Scholarship

“Exercising Passive Personality Jurisdiction Over Combatants: A Theory in Need of a Political Solution”

The International Lawyer, Fall 2008

ERIC TALBOT JENSEN, Judge Advocate General’s Corps, U.S. Army
Email: eric.jensen@hqda.army.mil

On March 4, 2005, a car carrying Nicola Calipari and Andrea Carpani, members of the Italian Ministry of Intelligence, and Giuliana Sgrena, a journalist who had been taken hostage one month before and who had just been released and was on her way back to Italy, was traveling to the Baghdad Airport. The car was fired on by US forces from a checkpoint, killing Mr. Calipari and wounding Ms. Sgrena and Mr. Carpani.

As a result of this tragic event, a joint investigation occurred and but Italy and the United States could not agree on the results. The United States determined that the soldiers involved had acted appropriately. Italy disagreed and on February 7, 2007, Mario Lozano, an U.S. Army National Guardsman, was indicted by Italian prosecutors who declared that Lozano can be tried in absentia because the case was policial.

The trial occurred and the decision was announced on October 25th. Judge Spinaci ruled that the law of the flag, or the law of the soldier’s sending state, prevails over a claim of passive personality jurisdiction in a case like this. This paper analyzes Judge Spinaci’s decision and determines that he is correct. Absent another international agreement, the exercise of passive personality criminal jurisdiction over a combatant for combatant acts is inappropriate when the combatant’s sovereign is seized of the case. Rather, because the combatant is acting on behalf of the sovereign, any claim against the combatant should be resolved through political means.

“Torture Nation, Torture Law”

Georgetown Law Journal, Vol. 97, 2008

JOHN T. PARRY, Lewis & Clark Law School
Email: parry@lclark.edu

U.S. law plainly forbids something called “torture.” Some writers even contend the ban on torture is foundational to the idea of the United States as a liberal democratic state committed to individual rights and the rule of law. The revelations of torture and other forms of mistreatment by U.S. forces at places such as Abu Ghraib thus undermine what these writers characterize as American leadership on human rights and call the nation’s identity into question.

Most readers will sympathize with these claims. This essay, by contrast, suggests that torture may be compatible with American values in practice and with the legal system we have constructed to serve those values. Put another way, many fear that the revelations of abuses committed in the war on terror put the U.S. at risk of becoming a torture nation. This essay explores the ways in which the U.S. is already a torture nation and suggests that being a torture nation could be as important a part of the U.S. legal and political system as the ban on torture.

To guide that exploration, I illustrate some of the ways in which past practice and mainstream legal doctrine provide a solid foundation for the abuses of the war on terror. The first part of this essay traces some of the history of torture and related forms of abuse in U.S. foreign policy, followed by a description of the law and practice of police and prison violence, and concluding with immigration. Part Two examines the interaction of U.S. and international law in the context of torture, primarily through a detailed examination of U.S. ratification of the Convention Against Torture and the International Covenant on Civil and Political Rights. Part Three concludes the essay by drawing explicit connections between these precedents and the perceived excesses of the war on terror.

My goal is not to make a normative argument about the condition of U.S. law and practice. Nor am I suggesting that they are pernicious or evil. At most, I am arguing that the U.S. is an entirely typical modern state in its use of torture. I seek primarily to fix the distorted picture sketched by rhetorical responses to the abuses of the war on terror. The examples I offer are not themselves a complete picture, of course, but no account of U.S. law and practice relating to torture can be complete without them. Grappling with a more complex representation of how violence colors U.S. law and politics is difficult, but scholarly analysis of these issues requires the effort. What, if anything, readers do with the resulting picture is a question beyond the scope of this essay.

____

“Civil Liability for Violations of International Humanitarian Law: The Jurisprudence of the Eritrea-Ethiopia Claims Commission in the Hague”

Wisconsin International Law Journal, Vol. 25, No. 23, 2008

WON KIDANE, Seattle University School of Law
Email: kidanew@seattleu.edu

Violations of international humanitarian law are compensable by a state causing the violations. The roots of this obligation can be traced to Article 3 of Hague Convention IV, which states that a party to the conflict which violates the provisions of [international humanitarian law] shall . . . be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. A similar rule is also contained in Protocol I Additional to the 1949 Geneva Conventions.

In practice, the enforcement of this important provision of international humanitarian law has remained a matter of rarity, particularly in terms of civil – rather than criminal – liability. However, a recent exception is the Eritrea-Ethiopia Claims Commission in The Hague (the Claims Commission or the Commission). The Claims Commission was established pursuant to a peace agreement signed by Eritrea and Ethiopia in Algiers, Algeria, on December 12, 2000, ending a devastating war fought between the two countries from May 1998 to December 2000.

The Commission was charged with the duty of deciding, through binding arbitration, all claims by one party or citizens of that party against the other party for loss, damage, or injury resulting from violations of international law (mainly violations of international humanitarian law that occurred during the war). The Commission commenced its work in March 2001 and decided to consider the claims of the parties in two different phases of the proceedings: a liability phase and a damages phase. The Commissions rendered the final decisions of the liability phase on December 19, 2005. The damages phase is still being conducted, although no decisions have been rendered by the Commission to date as part of that phase. Thus, this Article exclusively focuses on the Commission’s work as it relates to the completed liability phase.

____

“The Law on the Unilateral Termination of Occupation”

Eyal Benvenisti, THE LAW ON THE UNILATERAL TERMINATION OF OCCUPATION, (Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel) Endreas Zimmermann and Thomas Giegerich, eds., 2009

EYAL BENVENISTI, Tel Aviv University – Buchmann Faculty of Law
Email: ebenve@post.tau.ac.il

This brief note discusses the legal ramifications of the unilateral termination of occupation. The note seeks to characterize the moment of termination and examines the obligations of the occupant during (and possibly after) the termination process.


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