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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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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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Thoughts on the Targeted Killings Report

By Ben Heath

To con­tin­ue the dis­cus­sion of Pro­fes­sor Philip Alston’s report on tar­get­ed killings, I can imag­ine no bet­ter dis­cus­sion on the self-defense ratio­nale for drone strikes than that pre­sent­ed by Marko Milanovic at the EJIL blog.  (At Opinio Juris, Ken­neth Ander­son promis­es a response, which will most cer­tain­ly pro­vide for inter­est­ing debate.)

I also ful­ly agree with Milanovic’s cri­tique of Alston’s asser­tion that, out­side of armed con­flict, “the use of drones for tar­get­ed killing is almost nev­er like­ly to be legal.”  This state­ment is unnces­sar­i­ly con­clu­so­ry: there should be some lim­it­ed room for these strikes in the law enforce­ment par­a­digm of human rights, pro­vid­ed that the tar­get pos­es a sig­nif­i­cant dan­ger, that no oppor­tu­ni­ty for cap­ture exists, etc.  One imag­ines that this might be the case in coun­tries where the gov­ern­ment holds only loose con­trol over wide swaths of ter­ri­to­ry.  But, to be sure, drone strikes on the New Jer­sey Turn­pike are almost cer­tain­ly illegal.

I would not pre­sume to step fur­ther into such well-cov­ered ground.  Instead, I will use this space to high­light some oth­er aspects of the report, while rec­og­niz­ing that these are def­i­nite­ly side­notes to the major issues.

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New Issue: Forum on Direct Participation in Hostilities

We are pleased to announce that the Spring 2010 issue of the Jour­nal of Inter­na­tion­al Pol­i­tics is now avail­able online.  The bulk of Issue 42:3 is ded­i­cat­ed to dis­cus­sion of the ICRC Inter­pre­tive Guid­ance on the Notion of Direct Par­tic­i­pa­tion in Hos­til­i­ties, which was released last year.  The Forum fea­tures four respons­es to the work Inter­na­tion­al Com­mit­tee of the Red Cross:

  • Brig. Gen. (Ret.) Ken­neth Watkin, of the Cana­di­an Forces, dis­cuss­es the con­cept of “orga­nized armed groups” in the ICRC document.
  • Prof. Michael N. Schmitt, of Durham Uni­ver­si­ty Law School, ana­lyzes the ICRC’s fram­ing of the con­sti­tu­tive ele­ments of “direct participation.”
  • Air Cdre. Bill Booth­by of the RAF focus­es on the tem­po­ral dimen­sion of direct participation.
  • Col. (Ret.) W. Hays Parks, of the U.S. Depart­ment of Defense Office of Gen­er­al Coun­sel, crit­i­cizes the document’s restraints on the use of force in direct attack.

The Forum also con­tains a detailed response from Nils Melz­er, legal advis­er to the ICRC and author of the Inter­pre­tive Guid­ance doc­u­ment.  Pro­fes­sors Ryan Good­man (NYU School of Law) and Derek Jinks (Uni­ver­si­ty of Texas at Austin; U.S. Naval War Col­lege, 2009-10) present a brief intro­duc­tion.

In addi­tion, Issue 42:3 con­tains two illu­mi­nat­ing dis­cus­sions of the TRIPS regime, the World Trade Organization’s agree­ment on intel­lec­tu­al prop­er­ty rights.  Both exam­ine the bilat­er­al IP treaties fre­quent­ly known as TRIPS-Plus, which gen­er­al­ly pro­vide IP pro­tec­tion above and beyond that guar­an­teed by the orig­i­nal muli­ti­lat­er­al TRIPS agree­ment.  Beat­rice Lind­strom focus­es on TRIPS-Plus agree­ments in Asia and the Pacif­ic, and aruges that they have neg­a­tive exter­nal effects on stake­hold­ers who are not rep­re­sent­ed in nego­ti­a­tions.  Matthew Turk presents a much more san­guine view of TRIPS-Plus.  He argues that, while defects in the bar­gain­ing process argue for a “pro-devel­op­ment” inter­pre­ta­tion of the orig­i­nal TRIPS agree­ment, no such defects exist­ed in TRIPS-Plus nego­ti­a­tions.  There­fore, he con­cludes that the terms of TRIPS-Plus treaties should be inter­pret­ed lit­er­al­ly, to best effec­tu­ate the intent of the parties.

The issue also con­tains our usu­al roundup of book anno­ta­tions, many of which will be post­ed on this blog in the com­ing weeks.  Click the jump for more on Direct Par­tic­i­pa­tion in Hostilities.

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