forthcoming scholarship

“Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan”

Journal of Transnational Law & Policy, Vol. 19, 2010
U of Houston Law Center No. 2009-A-36

JORDAN J. PAUST, University of Houston Law Center

This article addresses the permissibility of use of force in self-defense in response to non-state actor armed attacks and the permissibility of U.S. use of drones in Pakistan for such purposes. Contrary to some writers, when directed merely against the non-state actors, responsive force is not engaged in against the foreign state as such or as an attack “on” or “against” its territory. Responsive measures of self-defense in a foreign state would not necessarily create a state of war between the responding state and the foreign state or between the responding state and the non-state actors, and whether or not an armed conflict exits to which the laws of war apply would be tested under normal criteria with respect to the existence of an international or non-international armed conflict. It is understandable, therefore, that a self-defense paradigm can be different than a war paradigm and both are different than a mere law enforcement paradigm. Permissibility of use of drones in Pakistan also depends on inquiry into many features of context and appropriate application of principles of reasonable necessity and proportionality.

The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I

Ian Henderson (Royal Australian Air Force & Asia-Pacific Centre for Military Law)

Martinus Nijhoff Publishers 2009)

Armed conflict is about using force to achieve goals. As international humanitarian law regulates the means and methods that a belligerent may adopt to achieve its goals, there will inevitably be disagreements over the interpretation of that law. As for the rules that regulate targeting, the main difficulties arise over what is a lawful target and what is proportional collateral damage. This book provides a detailed analysis of those issues. Also, a chapter is dedicated to considering how United Nations Security Council sanctioning of participation in an armed conflict might affect the range of lawful targets available to a belligerent. Finally, a process is described by which legal responsibility for targeting decisions can be assessed in a complex decision-making environment.

“Historical Perspective on Guantanamo Bay: The Arrival of the High Value Detainees”

Case Western Reserve Journal of International Law, Vol. 42, 2009

MORRIS D. DAVIS, affiliation not provided to SSRN

Detainees were sent to Guantánamo Bay to be exploited for intelligence purposes, not to perfect criminal cases against them. The effort to construct credible criminal cases based upon intelligence was going to be problematic, and it became even more so when President George W. Bush decided in the summer of 2006 to transfer high value detainees from secret Central Intelligence Agency sites, where some were subjected to torture, to military detention at Guantánamo Bay. The former chief prosecutor for the military commissions describes the decision to create “clean teams” of Federal Bureau of Investigation agents and military law enforcement personnel to interview the high value detainees anew at Guantánamo Bay in hopes of separating the criminal prosecution effort from the earlier intelligence gathering phase. The merits of that decision will be tested as President Barack Obama’s administration moves forward with the prosecution of Khalid Sheikh Mohammed and the other high value detainees.

Morris D. Davis retired from the Air Force in October 2008. These are his personal views and they do not reflect the opinions of any government agency or any other organization.”

Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser

Michael P. Scharf (Case Western Reserve Univ. – Law)

Paul R. Williams (American Univ. – Law)

Cambridge Univ. Press 2010

Shaping Foreign Policy in Times of Crisis grew out of a series of meetings that the authors convened with all ten of the living former U.S. State Department legal advisers (from the Carter administration to that of George W. Bush). Based on their insider accounts of the role that international law actually played during the major crises on their watch, the book explores whether international law is real law or just a form of politics that policymakers are free to ignore whenever they perceive it to be in their interest to do so. Written in a style that will appeal to the casual reader and serious scholar alike, the book includes a foreword by the Obama administration’s State Department legal adviser, Harold Koh; background on the theoretical underpinnings of the compliance debate; an in-depth case study of the treatment of detainees in the war on terror; and a comprehensive glossary of the terms, names, places, and events that are discussed in the book.

“Habeas Corpus for the Twenty-First Century, Chapter One”

Vanderbilt Public Law Research Paper No. 09-27

NANCY J. KING, Vanderbilt University School of Law
JOSEPH L. HOFFMANN, Indiana University-Bloomington, Maurer School of Law

This is the introductory chapter of a forthcoming book, presently under contract with the University of Chicago Press, about the future of the federal writ of habeas corpus. The book provides a compact, accessible, yet comprehensive history and analysis of habeas corpus in all of its diverse applications, an analysis that is based on the latest empirical research of habeas litigation in federal courts, and that includes specific recommendations for reform. By examining how habeas has been applied to review pretrial detention, civil commitment, immigration and military detention, capital and non-capital state convictions and sentences, federal criminal judgments, and administrative decisions by prison and parole officials, the book exposes striking patterns that are not easily seen when the writ is viewed only in a single context or at a single moment in time. Two principles emerge to guide future modifications of the habeas remedy: Habeas must remain a flexible remedy so that it will be available, whenever it is needed, to provide judicial review that can rectify imbalances in government power during times of crisis; and habeas must be exercised prudently as a tool of last resort, used only so long as is absolutely necessary, until alternative review mechanisms take shape. This introductory chapter contrasts the remarkable story of the writ’s liberation of a Guantanamo detainee with the unremarkable saga of habeas litigation by a typical state prisoner, and previews some of the book’s specific proposals for reform.

“Note on the Chemical Weapons Convention’s Second Review Conference, Held at the Hague on 7-18 April 2008”

Journal of Conflict & Security Law, Vol. 14, Issue 2, pp. 353-381, 2009

MAARTEN W. J. LAK, affiliation not provided to SSRN

After giving an introduction to the Chemical Weapons Convention (1993), which bans all chemical weapons worldwide, Section 2 of this note discusses the preparations for and proceedings of its Second Review Conference. The Conference’s procedural aspects are considered in Section 3. Section 4 discusses the main findings of the Conference Report on the Convention’s provisions, the extent to which these provisions have been implemented, and the performance of the Convention’s compliance supervisor, the Organisation for the Prohibition of Chemical Weapons (OPCW). Section 5 examines the positions taken in the negotiations by the two key groupings of OPCW member states, the European Union (EU) and the Non-Aligned Movement (NAM), and these positions’ impact on the Conference’s final Report. In conclusion, as a means of maintaining unity among the States Parties and fostering implementation of all the Convention’s provisions in the coming years, Section 6 proposes a renewal of the original ‘buy-in’ of chemically least developed states, which took place when the Convention was first signed. These states have distinctive interests that do not fully coincide with those of the industrialized countries. Between these two categories of states there is a group of chemically emerging economies, whose interests are closer to those of the industrialized states.

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