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The International Relations Value of Criminal Tribunals

By Gra­ham Dumas, (J.D. Can­di­date 2011)

Much has been made in recent(ish) lit­er­a­ture about the defects of crim­i­nal tri­bunals in post-con­flict soci­eties. Mul­ti­ple authors over the past decade have right­ly not­ed that such fora have dubi­ous pos­i­tive effects on the tran­si­tion­al jus­tice process when viewed inter­nal­ly: tri­bunals fail to deter war crim­i­nals either because the chances of pros­e­cu­tion are very low, or because offend­ers act with­in the con­text of over­whelm­ing social stress, often believ­ing they are work­ing for the greater good of soci­ety; as a mea­sure of ret­ribu­tive jus­tice, tri­bunals fail because the vast major­i­ty of per­pe­tra­tors go unpun­ished; tri­als may upset the del­i­cate bal­ance of peace and con­cil­i­a­tion, which in the end is the bedrock of ongo­ing sta­bil­i­ty in post-con­flict soci­eties. The list is long, and the points are large­ly valid.

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A Belated Thought on Wikileaks

by Gra­ham Dumas (J.D. Can­di­date 2011)

I am a bit late in writ­ing about the Wik­ileaks issue, but I would like to pro­pose here a slight­ly dif­fer­ent way of view­ing the ques­tion through the lens of sys­tems engi­neer­ing. For a num­ber of rea­sons, Wik­ileaks has pre­sent­ed to mem­bers of the mil­i­tary a sim­pli­fied and seem­ing­ly less painful way to report vio­la­tions of IHL, lead­ing to a break­down in, or rather an excur­sion from, the process the U.S. Mil­i­tary has been using to report, iden­ti­fy, pros­e­cute, and ulti­mate­ly pre­vent vio­la­tions of mil­i­tary law and the law of armed con­flict. To rem­e­dy this prob­lem, the mil­i­tary should inves­ti­gate both the demand and sup­ply sides of the infor­ma­tion pipeline, sim­pli­fy the report­ing process, and ini­ti­ate a cam­paign to edu­cate ser­vice­men of the inter­nal report­ing chan­nels avail­able to them, the need to pre­vent extra­ne­ous leaks to the pub­lic, and the penal­ties for releas­ing clas­si­fied infor­ma­tion.  More after the jump.

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The Effects of the ICJ Decision on Kosovo (if any) on the “Frozen Conflicts” of the Former Soviet Union

by Gra­ham Dumas (J.D. Can­di­date 2011)

Note: This is a cross-post from my Rus­sia-spe­cif­ic blog, Onion Domes and Oli­garchs.

That yesterday’s advi­so­ry opin­ion by the Inter­na­tion­al Court of Jus­tice, Accor­dance with Inter­na­tion­al Law of the Uni­lat­er­al Dec­la­ra­tion of Inde­pen­dence in Respect of Koso­vo, was decid­ed on extreme­ly nar­row grounds has already been not­ed else­where in the blo­gos­phere. Fur­ther, its sta­tus as an advi­so­ry opin­ion of course means that it is non-bind­ing (though wide­ly respect­ed) and per­tains only to the ques­tion asked of the Court by the U.N. Gen­er­al Assem­bly.

Nev­er­the­less, it may be inter­est­ing to apply to the con­text of the frozen con­flicts in the for­mer Sovi­et Union some of the prin­ci­ples dis­cussed in and gen­er­at­ed by the Court’s Koso­vo opin­ion. After all, polit­i­cal lead­ers in Moscow have fre­quent­ly (and threat­en­ing­ly) cit­ed Koso­vo as a prece­dent for the inde­pen­dence of Abk­hazia and South Osse­tia, despite the obvi­ous and numer­ous dif­fer­ences between these cas­es. A brief bit of analy­sis after the jump.

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Book Review: Terrorism, War and International Law (Myra Williamson)

This occa­sion­al series will high­light the book anno­ta­tions that con­sti­tute the back pages of every issue of the NYU Jour­nal of Inter­na­tion­al Law and Pol­i­tics.  We are begin­ning with this review of Myra Williamson’s Ter­ror­ism, War and Inter­na­tion­al Law: The Legal­i­ty of the Use of Force Against Afghanistan in 2001, because it rais­es the cru­cial ques­tion of the right of States to use force in self-defense against non-State actors.  This issue sits in the back­ground of much of the current debates about the use of force, most recent­ly in Pro­fes­sor Alston’s Tar­get­ed Killings report.

By Gra­ham F. Dumas

Myra Williamson’s Ter­ror­ism, War and Inter­na­tion­al Law: The Legal­i­ty of the Use of Force Against Afghanistan in 2001 comes at a time when the con­flict in Afghanistan is return­ing to the fore of U.S. for­eign pol­i­cy and as the fight against ter­ror­ism con­tin­ues to expand. Yet many of the legal ques­tions sur­round­ing this con­flict were sim­ply glossed over at the time of the invasion and have not yet been sat­is­fac­to­ri­ly resolved.

Bas­ing her argu­ment main­ly on legal his­to­ry, Williamson asserts that the use of force against Afghanistan could not be legal­ly con­sid­ered self-defense accord­ing to the U.N. Char­ter because there was no armed attack for the pur­pos­es of Arti­cle 51, because the Secu­ri­ty Coun­cil did not autho­rize uni­lat­er­al force in Res­o­lu­tion 1368, and because Al Qaeda’s actions could not be attrib­uted to the Tal­iban. Sim­i­lar­ly, the author argues that the inva­sion of Afghanistan was not legal under cus­tom­ary inter­na­tion­al law because it was nei­ther nec­es­sary nor pro­por­tion­ate, and there was no imme­di­ate threat of attack in the weeks fol­low­ing Sep­tem­ber 11.

In vig­or­ous­ly assert­ing the ille­gal­i­ty of the inva­sion of Afghanistan, Williamson rais­es a num­ber of inter­est­ing points
and pro­vokes a great deal of thought, espe­cial­ly with respect to the many weak­er links in the argu­ment for the invasion’s law­ful­ness. As she notes, the Inter­na­tion­al Court of Jus­tice (ICJ) has held on numer­ous occa­sions that Arti­cle 51 applies only to armed attacks by states, and the link between Al Qae­da and the Tal­iban is indeed ten­u­ous, espe­cial­ly under a clas­si­cal inter­pre­ta­tion of the law. Par­tic­u­lar­ly insight­ful is the study of the opinio juris of var­i­ous NATO mem­bers with respect to that organization’s dec­la­ra­tion that an armed attack occurred; the author sug­gests that what appeared to be a unan­i­mous dec­la­ra­tion that Sep­tem­ber 11 was suf­fi­cient to trig­ger the inher­ent right of self-defense was in fact any­thing but. Despite these effec­tive points, Ter­ror­ism, War and Inter­na­tion­al Law is a dis­ap­point­ing and ulti­mate­ly unsuc­cess­ful effort which leaves out more than it includes, treats as fact sev­er­al high­ly con­tentious claims nec­es­sary to sup­port the main the­sis, and often fails to address the post-Afghanistan era’s most press­ing legal ques­tions.

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