forthcoming scholarship

July 5, 2009

“The United States, Israel, and Unlawful Combatants”

Duke Law School Public Law & Legal Theory Paper No. 249

CURTIS A. BRADLEY, Duke University – School of Law
Email: cbradley@law.duke.edu

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, whereby members of a terrorist organization can be considered ?unlawful combatants? and thus treated as legally distinct from civilians. Although the two category approach may seem at first glance to be the most protective for civil liberties, it is not clear that this is the case. If a conflict with a terrorist organization is pushed into the civilian category, it is very likely that this category will be stretched in order to accommodate the security needs of the nation. The net result may be a reduction in protection for true non-combatants. While the three category approach is less anchored in existing treaties than the two category approach, it allows for a more realistic description of how members of a terrorist organization operate. Moreover, depending on how it is defined, the third category could contain significant substantive and procedural protections that are similar to those available under the two category approach.

Reciprocity and the Law of War

Sean Watts (Creighton Law)

Forthcoming, Harvard International Law Journal, Vol. 50, No. 2, Summer (2009)

Abstract:
This article examines how the principle of reciprocity operates within the international law of war. Tracing the historical development and application of the law, the Article demonstrates that the existing law of war derives from a set of rules that are highly contingent on reciprocity. Contrary to common understanding, reciprocity strongly influences states’ interpretation and application of the law of war. The Article first identifies an obligational component of reciprocity that restricts operation of the law to contests between parties with parallel legal commitments. Second, the Article identifies an observational component of the principle that permits parties to suspend or terminate observance when confronted with breach. Although the principle of reciprocity was softened by late twentieth century legal instruments, it continues to form a critical component of the law of war and guides both pragmatic and theoretical discourse. Regardless of normative conclusions about reciprocity as a precondition to application of the law, the Article’s reciprocity-cognizant framework for understanding the law of war provides a useful platform for reform efforts.

The Army Lawyer (“International and Operational Law” edition) (May 2009)

From the Table of Contents, lots of really interesting stuff:

Foreword

Lieutenant Colonel Michael O. Lacey …………………………………………………………………………………………………………………. 1

Remarks to the 2009 Samuel Dash Conference on Human Rights Rule of Law in the Context of Military Interventions

Jeh Charles Johnson …………………………………………………………………………………………………………………………………………. 2

Seven Detainee Operations Issues to Consider Prior to Your Deployment

Major Olga Marie Anderson & Major Katherine A. Krul ……………………………………………………………………………………….. 7

Rule 99 of the Customary International Humanitarian Law Study and the Relationship Between the Law of

Armed Conflict and International Human Rights Law

Major J. Jeremy Marsh ……………………………………………………………………………………………………………………………………. 18

The Expansive Definition of “Protected Persons” in the War Crime Jurisprudence

Major Shane Reeves ………………………………………………………………………………………………………………………………………… 23

Cluster Munitions: Wonder Weapon or Humanitarian Horror?

Lieutenant Colonel Michael O. Lacey ………………………………………………………………………………………………………………… 28

Don’t Call It a SOFA! An Overview of the New U.S.-Iraq Security Agreement

Commander Trevor A. Rush ……………………………………………………………………………………………………………………………… 34

Hostile Outsider or Influential Insider? The United States and the International Criminal Court

Colonel Stuart W. Risch ……………………………………………………………………………………………………………………………………. 61

(The Army Lawyer comes out monthly and The Military Law Review is published quarterly.  Both welcome articles from all military and civilian authors on topics of interest to military lawyers.  The Army Lawyer will primarily publish practitioner oriented pieces and the MLR publishes more policy oriented articles.  In either case, our academic departments do a subject matter review on every article submitted for publication (so for instance, my department sees all international/operational law related articles) and then after acceptance to either journal, full-time professional editors work with the authors to get the article to publication.

“Ethics and Operational Realities in the War on Terror”

South Texas Law Review, Vol. 49, p. 837, 2009

MICHAEL W. LEWIS, Ohio Northern University – Pettit College of Law
Email: m-lewis@onu.edu

By examining the effects of a seemingly trivial choice, the selection of different apprehension forms, this short essay illustrates how the operational realities of soldiers engaged in counterinsurgency operations are shaped, and the ethical dimensions that go along with such choices. It urges that these operational realities be taken into account during the ongoing abstract debates about process.

“Targeting Enemy Forces in the War on Terror: Preserving Civilian Immunity”

Vanderbilt Journal of Transnational Law, Vol. 42, No. 3, p. 683, 2009

RICHARD D. ROSEN, Texas Tech University – School of Law
Email: Richard.Rosen@ttu.edu

Protocol I to the Geneva Conventions of 1949 and the interpretation given to it by many in the international community (e.g., UN, NGOs, media) provide perverse incentives to terrorist and insurgent groups to shield their military activities behind civilians and their property. In other words, the law governing targeting is fundamentally defective; it affords terrorist and insurgent groups strategic and tactical advantages from their own noncompliance with the law and their adversaries? observance of it. The consequence has been increasing noncompliance with the law and growing civilian casualties. This article proposes structural changes to the law governing targeting and attitudinal changes by those who interpret it to ensure civilians receive adequate security from armed attack.

“The Protection of National Security Whistleblowers: Imperative But Impossible A Critical Appraisal of the Scope and Adequacy of Whistleblower Protection Laws for National Security Whistleblowers”

MELISSA KHEMANI, Georgetown University
Email: melissa.khemani@gmail.com

The purpose of this paper is to undertake a critical assessment of the provisions, application and enforcement of whistleblower protection laws specifically accorded to employees in the intelligence and national security sectors. The underlying argument of this paper is that national security whistleblowers play an important role in promoting accountability and contributing to a system of checks and balances, but the current legal framework for their protection has significant weaknesses, resulting in a system that has been rightly described as ?Kafka-esque.? It is this author?s opinion that national security whistleblowers should be subject to narrower provisions of whistleblower protection because of the sensitive nature of the information to which they are privy and in turn, may disclose. However, this paper seeks to demonstrate that a balance can and should be struck between protecting both the whistleblower and national security interests, but that the current system as it stands falls short of achieving this.


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