Georgetown Security Law Commentary

Why Pakistan supports the Haqqani network: Fear for its own security

09/29/11: The Miami Herald reports that while, to American officials, the Haqqani network is a criminal syndicate with al-Qaida and Taliban ties that is frequently responsible for deadly attacks on US troops in Afghanistan.  To Pakistan, the picture is much more complex. Pakistani support for the Haqqanis is tied to Islamabad's fears for its own future security, and Pakistan is unlikely to surrender that support no matter how much pressure the US applies.

Guantanamo tribunal may resume

09/29/11: The LA Times reports that the Guantanamo Bay war crimes tribunal may stir back to life next month after the Pentagon filed capital charges Wednesday against a Saudi prisoner in the 2000 attack on the U.S. destroyer Cole in a Yemeni port.

Scholarship: "Combatants and the Combat Zone"

"Combatants and the Combat Zone" (University of Richmond Law Review, Forthcoming) by Mary Ellen O'Connell (Notre Dame Law School)

Scholarship: "Law, War, and the History of Time"

"Law, War, and the History of Time" by Mary L. Dudziak (University of Southern California Law School)

Scholarship: Journal of International Criminal Justice

07/08/09: The latest issue of the Journal of International Criminal Justice is out. Contents include:

• Jens Meierhenrich & Keiko Ko, How Do States Join the International Criminal Court?: The Implementation of the Rome Statute in Japan
• Symposium: The Arrest Warrant against the President of Sudan: Reasoning and Implications of the ICC Decision
  • Salvatore Zappalà, Foreword
  • Robert Cryer, The Definitions of International Crimes in the Al Bashir Arrest Warrant Decision
  • Claus Kreß, The Crime of Genocide and Contextual Elements: A Comment on the ICC Pre-Trial Chamber's Decision in the Al Bashir Case
  • Harmen G. van der Wilt, The Continuous Quest for Proper Modes of Criminal Responsibility
  • Paola Gaeta, Does President Al Bashir Enjoy Immunity from Arrest?
  • Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir's Immunities
• Cecily Rose, Troubled Indictments at the Special Court for Sierra Leone: The Pleading of Joint Criminal Enterprise and Sex-based Crimes
• Róisín Mulgrew, On the Enforcement of Sentences Imposed by International Courts: Challenges Faced by the Special Court for Sierra Leone

HT to the International Law Reporter.

Scholarship: Human Rights Law Review

06/22/09: The latest issue of the Human Rights Law Review (Vol. 9, no. 2, 2009) is out. Contents include:

• Alastair Mowbray, An Examination of the European Court of Human Rights' Approach to Overruling its Previous Case Law
• Aoife Nolan, Addressing Economic and Social Rights Violations by Non-state Actors through the Role of the State: A Comparison of Regional Approaches to the 'Obligation to Protect'
• Helen Keller & Andreas Fischer, The UN Anti-terror Sanctions Regime under Pressure
• Matthew E. Cross & Sarah Williams, Recent Developments at the ICC
• David Jenkins, Habeas Corpus and Extraterritorial Jurisdiction after Boumediene: Towards a Doctrine of 'Effective Control' in the United States

HT to International Law Reporter.

Scholarship: Recent articles on torture

"Torture, Truth Serum, and Ticking Bombs: Toward a Pragmatic Perspective on Coercive Interrogation" (Loyola University Chicago Law Journal, 2008) Kenneth Lasson (University of Baltimore School of Law) The 'War on Terror' has prompted a great deal of discussion about the use of torture as a means of extracting information from those suspected of having perpetrated past acts of violence or planning future ones. It seems increasingly difficult to adhere to international norms governing a nation's moral and legal obligations to protect its citizens from grave danger while continuing to support individual freedoms. Among the more difficult questions to emerge from those that were far-fetched (if not unthinkable) just a few decades ago is how to handle the so-called ticking-bomb scenario. As terror organizations grow in size and complexity, uncovering terrorist plans by interrogating a group member has become critical, and the need to gather intelligence in order to save lives increasingly urgent.

"Do Norms Reduce Torture?" (Journal of Legal Studies, Vol. 38) by Michael J. Gilligan (New York University, Department of Politics) and Nathaniel H. Nesbitt. This article tests the proposition that norms alter state behavior with respect to the expanding international norm against torture from 1985 through 2003. It finds no evidence that the spreading of the international norm against torture, measured by the percentage of countries in the world that have acceded to the UN Convention Against Torture, has lead to any reduction in torture according to a variety of measures. HT to National Security Advisors.

"The Jaundiced Eye of the Beholder: The Case for an Objective Definition of Torture" (Journal of Transnational Law and Contemporary Problems, Forthcoming) by Michael W. Lewis (Ohio Northern University - Pettit College of Law). After discussing current misconceptions about intelligence gathering and coercion that are common to all sides of the torture debate, this article describes the reality of intelligence collection. It then reviews the wide range of competing definitions of torture; those provided by international courts, those proposed by commentators and those implemented by governments around the world. Some proposed definitions are so broad that practically any form of interrogation would be illegal, others so narrow as to allow for a wide variety of shockingly brutal techniques.  People or governments under pressure from terrorist attacks view the definition of "severe pain and suffering" differently from those outside such a cauldron. The excesses that follow terrorism have generally later been regretted, but such regrets do little to comfort the victims of these excesses. This article proposes a solution. To prevent the definition of "severe pain and suffering" from changing between September 10 and September 12, it recommends tying the definition to pre-existing standards that are difficult to manipulate and internally self-policing.  HT to National Security Advisors.

Scholarship: Weapons and the Law of Armed Conflict

Weapons and the Law of Armed Conflict (Oxford Univ. Press 2009) by William Boothby (Legal Branch, Royal Air Force). This book brings together the law of armed conflict governing the use of weapons into a single volume. It interprets these rules and discusses the factors influencing future developments in weapons law. After relating the historical evolution of weapons law, the book discusses the important customary principles that are the foundation of the subject, and gives a condensed account of the law that exists on the use of weapons. Having stated the law as it is, the book then discusses the way in which this dynamic field of international law develops in the light of various influences.

Scholarship: "Combatants and the Combat Zone", “The Detention of Civilians in Armed Conflict”

"Combatants and the Combat Zone"  (University of Richmond Law Review, forthcoming) by Mary Ellen O'Connell (Notre Dame Law School).  This article discusses President George W. Bush's claim of wartime privileges to kill without warning and detain without trial those suspected of association with terrorist organizations. These claims were made in the face of contrary international law. Under international law, a war or armed conflict is characterized by organized armed groups engaged in intense, armed hostilities. To meet these criteria, such groups are associated with territory. In addition to the concept of armed conflict, the concept of conflict zone is important. Killing combatants or detaining them without trial may be permissible when done in a zone of actual armed hostilities. Outside such a zone, however, authorities must attempt to arrest a suspect and only target to kill those who pose an immediate lethal threat and refuse to surrender. 

"The Detention of Civilians in Armed Conflict" (American Journal of International Law, forthcoming) by Ryan Goodman (Harvard Law; NYU Law). In the armed conflict between the United States and Al Qaeda, the legality of the government’s detention scheme has been mired in confusion. The lack of clarity is especially acute with respect to the substantive criteria for defining who may be detained. A crucial determinant of the lawfulness of the scheme is whether international humanitarian law (IHL) permits the preventive detention of civilians, or particular groups of civilians. Part I maps the contemporary IHL regime, discussing features that pertain to detention of particular individuals in armed conflict. Part II analyzes conceptual errors involving U.S. detention law and practice. And, part III examines the humanitarian and security implications of the types of errors made by proponents and opponents of U.S. detention policy.  HT to National Security Advisors.

Scholarship: An Exchange on Law and Israel's Gaza Campaign

"An Exchange on Law and Israel's Gaza Campaign" (ABA National Security Law Report, Feb. 2009) by David Luban (Georgetown Law) and Amos Guiora (University of Utah).  This exchange on "Operation Cast Lead" - Israel's December 2008-January 2009 campaign in the Gaza Strip-includes essays by Guiora and Luban, followed by Guiora's response to Luban's essay and Luban's response to Guiora's. Luban argues that the Gaza campaign violated both the jus ad bellum and jus in bello proportionality principles. He also argues that the Hamas civil administration were not lawful targets under Israel's own interpretation of the law of armed conflict. Guiora argues that terrorism changes the landscape of armed conflict and requires a reconfiguration of international law. Under this reconfiguration, an entire terrorist organization may properly be targeted.