By Graham Dumas (J.D. Candidate 2011) Philip Alston famously described the use of drones by the U.S. military and the CIA as potentially leading to a "playstation mentality," in which the human and capital costs of strikes are so decreased…
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.
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.
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.
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.