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Making Amends

Over at Opinio Juris this morning, my good friend and colleague Scott Paul introduced the Making Amends Campaign, which is led by the Campaign for Innocent Victims in Conflict (CIVIC).  Scott and CIVIC are working to develop a general practice…

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Book Review: The Least Worst Place (Karen Greenberg)

Con­tin­u­ing with the theme of armed con­flict, deten­tion, and ter­ror­ism, the lat­est install­ment in our occa­sion­al series of book reviews address­es Karen Greenberg’s The Least Worst Place: Guantanamo’s First 100 DaysThis review may also be found in Issue 42:3 of the Jour­nal of Inter­na­tion­al Law and Pol­i­tics.

By John Wun­der­lin

In the pref­ace to The Least Worst Place: Guantanamo’s First 100 Days, Karen Green­berg briefly sets out the aim of the book: to describe the ear­ly days of the Guan­tanamo Bay deten­tion facil­i­ty, in which few abus­es occurred despite incred­i­bly try­ing cir­cum­stances, and to ask whether this nar­ra­tive sheds any light on how lat­er abus­es came to occur and how such abus­es might be avoid­ed in the future. Per­haps in def­er­ence to the com­plex­i­ty and dif­fi­cul­ty of the sub­ject, Green­berg nev­er tries to for­mu­late the lessons as a set of pol­i­cy pre­scrip­tions. Nev­er­the­less, she suc­ceeds in devel­op­ing a strong under­stand­ing of how cer­tain forces and cir­cum­stances gath­ered to cre­ate a dis­as­ter at Guan­tanamo while oth­er forces worked to keep dis­as­ter at bay.

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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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