International Law Exam 3
Detainee Treatment Act
(DTA) of 2005, originally an anti-torture bill proposed by Senator John McCain -wound up excluding the CIA from legislation designed to prevent the use of torture by US forces -Through a peculiar amendment to the bill, stripped the Guantanamo prisoners of their right to file habeas corpus claims
Why is it now called humanitarian law?
-the focus is now on 'human' and on 'humanitarian' rather than on 'war' -Int'l orgs describe it as int'l humanitarian law, military as laws of armed conflict, and others who wish to draw attention to its main subject and object: laws of war
de Martens clause
-written by de Martens, an influential Russian lawyer and diplomate and delgate to the 1899 Hague conferences -"Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of IL as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of public conscience." -helped to influence and support Common Article 3 of the 1949 Geneva Conventions and 1977 Additional Protocols -Applicable to all conflicts -a convention in the miniature -sets out the general protections for all individuals no longer active in armed conflict -fills the 'gap' in IL (CIL)
Article 40
SC can call for provisional measures. For example, calling for withdrawal of troops or suspension of hostilities.
Article 42
authorize the use of force - (1) to avert aggression (e.g. Iraq v Kuwait, 1990) (2) to give authority to Peacekeeping forces to use force (e.g. in Somalia, 1993) (3) assisting to maintain a government (e.g. Afghan Interim Authority, 2000) -gives the SC the authority to take action by air, sea or land forces as may be necessary to maintain or restore international peace and security.
'War' on Terror
"No distinction will be made between the terrorists.. and those that harbor them"
The African Bias
"The ICC, despite being called ICC, is in fact an Int' Caucasian Court for the persecution and humiliation of people of color, especially Africans" Gambian Information Minister Sheriff Bojang
The Judges
"persons of high moral character, impartiality and integrity" who possess the qualifications required in their respective States for appointment to the highest judicial offices -are elected by the Assembly of States PArties on the basis of their established competence in criminal law and procedure and in relevant areas of IL
International Criminal Tribunal for the Former Yugoslavia
(1993) The UN SC established this ad hoc tribunal to hold individuals accountable for the atrocities committed as a part of what was known 'ethnic cleansing' -in 1993, the SC expressed its 'grave alarm' and the situation occuring within the territory of the former Yugoslavia -"decides hereby to establish an int'l tribunal for the sole purpose of prosecuting the persons who were responsible" -This followed from a long-standing series of SC resolutions regarging the commission of war crimes in the former Yugoslavia from 1991-1993 -ICTY has its seat in the Hague and recieves most of its funding from the UN -applies the rules of IHL derived from following sources: 1949 Geneva Convention, 1948 Geneva Convention, Crimes against Humanity as formulated in the Nuremberg Judgements, 1907 Hague Conventions on the Laws and Customs of War on Land -focused on murder, rape, torture, ethnic cleansing and other HR violations -has primacy over national courts both in the Former Yugoslavia and the rest of the world -no person can be tried twice -four countries agreed to provide cells for prison terms
International Criminal Tribunal for Rwanda
(1994) closed in 2015; "prosecute persons responsible for genocide and other serious violations of IHL committed in the territory of Rwanda and neighbouring States, between Jan 1, 1994 and Dec 31, 1994 -similar to the ICTY in that it is the result of UN SC resolutions regarding the wide-scale violence and ethnic cleansing -this occurred in Rwanda from April-June of 1994. Up to one million Tutsis and moderate Hutus in Rwanda were massacred -Int'l outcry over this genocide also prompted serious action on the part of the UN -located in Tanzania: bc of the security risks, lack of appropriate infrastructure, and perceptions of judicial impartiality -like ICTY in that has same structural arrangement, and has a Chief prosecutor who is responsible for investigations, indictments and prosecution -ICTR is the first international tribunal to define rape under IL, to recognize rape as an instrument of genocide, to acknowledge that rape can cause mental as well as physical harm, to recognize rape as a crime against humanity, to accept forced pregnancy as a potential crime, to recognize the role of the media in inciting sexual violence and the first to indict a woman for rape -in its Akayesu decision, also recognized forced pregnancy as a potential crime
Hamdan v. Rumsfeld
(2006) the second Supreme Court decision, the justices ruled 5-3 that the Military Commissions were illegal under US law and the Geneva Conventions -Concluding that Common Article 3 of the Geneva Conventions-- which forbids 'cruel treatment and torture' and 'outrages upon personal dignity, in particular humiliating and degrading treatment'-- was 'applicable' to Hamdan and others facing Military Commissions -Justice Stevens stated that it was Hamdan's right to be tried by a 'regularly constituted court affording all the judicial guarantees which recognized as indispensable by civilized peoples' -Justice Stevens wrote that military commissions violated Uniform Code of Military Justice -the Court rebuked the government's arguments that the AUMF expanded Presidential authority
Just War
-"Suggesting that war is justified only when certain conditions were met: if it is waged as a last resort or in self-defense; if the force used is proportional; and if, whenever possible, civilians are spared from violence" -"we know that for most of history, this concept of 'just war' was rarely observed."
Former Pres. Obama's essential position on the ICC
-"The Court has pursued charges only in cases of the most serious and systemic crimes and it is in America's interests that these most heinous of criminals, like the perpetrators of the genocide in Darfur, are held accountable. Thee actions are a credit to the cause of justice and deserve full American support and cooperation. Yet the Court is still young, many questions remain unanswered bout the ultimate scope of its activities, and it is premature to commit the U.S. to any course of action at this time." -the US has more troops deployed overseas than any other nation and those forces are bearing a disproportionate share of the burden in the protecting Americans and preserving international security. Maximum protection for our servicemen and women should come with that increased exposure. Consult thoroughly with our military commanders and also examine the track record of the Court before reaching a decision on whether the U.S. should become a State Party to the ICC" -The Republican Party platform explicitly rejects the ICC
What forms the contemporary body of the laws of war or internaitonal humanitarian law?
-1949 Geneva Conventions I-IV -1977 Protocols Additional I and II
Self-Defense
-Armed attack: The right to self-defense once and only once missiles were already 'in the air' -Anticipatory self-defense: justifies using force in anticipation of an imminent armed attack. Under this concept, a State is not required to absorb the first hit before it can resort to the use of force in self-defense to repel an imminent attack. -Preemptive self-defense: after 9/11, US referred to as the 'inherent right of individual and collective self defense following armed attacks that were carried out against the US'
U.N. Principles on Force
-Article 2(4) States may not use or threaten use of force except States may use force defensively, when responding to an armed attack (Art 51) or when the UN SC decides it is possible as a response (collective security)
Pres Obama and CIA in 2009
-CIA officers 'will continue to conduct debriefings using a dialogue style of questioning that is fully consistent with the interrogation approaches authorized and listed in the Army Field Manual.' -revoked past presidential directives, orders and regulations that authorized the abusive treatment of detainees -repudiated all Justice Department memos relating to interrogation that were issued between 9/11 and Jan 20, 2009
Additional Protocols I and II
-Codify the rules that protect the civilian population against the effects of hostilities -two-thirds of all States are bound by these Protocols -Less accepted -Confusion about the scope of Additional Protocol II's application -Only parts of Additional I is customary law
Security Council
-Composed of 15 members: 5 permanent members (China, France, Russia, United Kingdom and the US) -UN cannot act if one permanent member of the SC casts a veto: "dictatorship within a democracy" -10 non-permanent members elected for two-year terms by the GA -10 non-permanent seats are distributed on a regional basis as follows: 5 for African and Asian states; one for Eastern European States; two for the Latin American and Caribbean States; and two for Western European and other States
Nuremberg Tribuanal
-Criminalizing resort to war -attempted to outlaw aggressive war: "renounce war as an instrument of national policy", drafted by France and US; August 27th 1928 and signed by 15 nations, by 1933 65 nations signed -only wars of aggression-- not military acts of self-defense or collective punishment of aggressors-- would be covered under the pact -many nations had no objections to signing it -signatories to settle their disputes by peaceful means -contained no sanctions against violations -diplomacy and world opinion would dissuade the use of force -Still a "perpetual" agreement and hope
Critiques of the ECCC
-Domestic: Tribunal is too little too late, digging up history will cause more problems than it solves, it is a waste of limited resources, those responsible are too old to remember, sentences given are too little to make up for the harms done Internationl: political interference has slowed and limited the scope of the trials, Cambodian government won't comply/ won't arrest additional people, it is a waste of limited resources
U.S. Position on the ICC
-Drastically changed during the GW Bush administration -Pres. Clinton was an enthusiastic supporter, frequently spoke in favor the ICC, and appointed an ambassador at large for war crimes to monitor US efforts -US became a fierce dissenter, and Pres. GW Buch 'unsigned' or 'withdrew' US signature to the ICC statute -the concern was the use of the ICC against the US for political prosecutions -Bilateral Immunity Agreements (BIAs) or Article 98 were an important aspect of the Bush approach to the court -the agreements indicate how individuals wanted by the ICC are handled if there is a request to transfer him or her to the Court
Victims PArticipation and Reparation Section (VPRS) and the Victims and Witnesses Unit (VWU)
-Established by the ICC -Obliged to take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses -detained personas are presumed innocent until proven guilty
Benefits of the ECCC
-Fact Finding: the ECCC has created and made accessible enormous resources on the KR regime -Rule of law: the goals of the hybrid tribunal is to reinforce and improve the rule of law in the host country -Victim Support Services: assists in bringing mental health and community development assistance -Victims watch, observe, and listen to the proceedings. Many expressed relief that there have been some steps toward justice -Education of younger generations: an overwhelming number of young Cambodians are unaware of the past. Along with a new national education policy in 2007, the ECCC has done outreach with youth and young adults to teach them about the KR period
Who influenced early 19th century codes of war?
-Henry Dunant (battle of Solefino) Swiss businessman who passed in Italy where a bloody battle had been fought between the French and Italians on the one side, and the Austrians on the other -Guillaume-Henri Dufour: who in 1847 ordered his soldiers to protect the wounded and enemy soldiers
IHL Types
-Humanity -Necessity -Proportionality -Distinction -Protection
International Criminal Court
-Important as to change the pattern of immunity -the idea of a system of international criminal justice re-emerged after the end of the Cold War -Negotiations on the ICC statute were underway at the UN -in response to these atrocities, the UN SC established an ad hoc tribunal for each of these situations -the 'trial' of int'l criminals is best accomplished by int'l court- as opposed to national court -importance of impartiality in the proceedings -on July 1998, the int'l community reached an historic milestone when 120 States adopted the Rome Statute, the legal basis for establishing the permanent ICC -Rome Statue entered into force on in July 2002 after ratification by 60 countries -124 countries are State Parties: 34 are African States, 19 are Asia-Pacific States, 18 are from Eastern Europe, 28 are from Latin American and Caribbean States, and 25 are from Western European and other States -first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community -court of last resort -may exercise jurisdiction over genocide, crimes against humanity and war crimes -State parties and international organizations are obliged to cooperate fully with the court in its investigations and prosecutions (arresting persons wanted, etc) -acting in an official capacity as a Head of State, member of Government or Parliament or as an elected representative or public official in no way exempts a person from prosecution or criminal responsibility
Common Article 3
-In the case of armed conflict not of an international character occurring in the territory of hone of the High Contracting Parties, each Party to the conflict shall be bound to apply -Prohibited at all times: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples
Ad Hoc Tribunals
-Problems: selective justice, tribunal fatigue -Established within the framework of the UN to deal with specific situations and only have a limited mandate and jurisdiction -ICTY and ICTR -International tribunals, established to try the crimes of Genocide and Crimes against Humanity. Faced criticism for being slow and costly -Hybrid tribunals: East Timor, Sierra Leone, Bosnia, and Lebanon (include both national and international judges, charges based on both domestic and international law
The UN Charter
-Prohibition on resort to force -Language of Article 2(4): world 'war' isn't used, instead it is threat or use of force -"All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the UN" -Can go to war in instances of collective or self-defense -Presumes a particular kind of war: organized militaries in overt, declared conflict; between two (or more) territorial states; militaries in uniform and clearly identifiable; states control their own territories
What laws do the attacks in Syria violete?
-Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (Geneva Protocol) -Chemical Weapons Convention -Convention on Cluster Munitions -International Humanitarian Law
1951 Refugee Convention
-Refugee: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable, or owing to such fear, is unwilling to return to it
League of Nations
-Regulating resort to war -Articles 12,13, 15 (conditions of resort to war) requirement that members of the League give disputes to arbitration or legal settlement, art 12: in no case to resort to war until 3 months after the award by arbitrators or decision, art 16 (sanctions) if the conditions were violated
9/2006
-Release of the Int'l Committee of the red Cross (confidential) report on the treatment of those 14 high value detainees transferred to Guantanamo from secret CIA prisons concluded that their treatment 'constituted torture' -Release of four other memos by the Justice Department documenting the legal edifice for torture by the CIA created by the Office of Legal Council and former Pres Bush and his administration
Rasul v. Bush (2004)
-Rule that Guantanamo was 'territory over which the US exercises exclusive jurisdiction and control' -because the prisoners denied that they had 'engaged in or plotted acts of agression against this country' and had "never been afforded access to any tribunal, much less charged with and convicted of wrongdoing" -they had habeas corpus rights; in other words, the right to challenge the basis of their detention before an impartial judge -The Combatant Status Review Tribunals-- were introduced to justify the prisoners' continued detention without charge or trial -empowered to rely upon secret evidence -- including hearsay, and information obtained through torture, coercion and bribery (name them all as unlawful enemy combatants)
Article 24 of the UN Charter
-SC is mandated to 'ensure prompt and effective action' -with respect to the maintenance of international peace and security -in accordance with the Purposes and Principles of the UN -the SC has the power to make decisions that member states are then obligated to implement under the Charter
Scope of ECCC Jurisdiction
-Senior Leaders of the Khmer Rouge -Crimes that took place between April 17th, 1975 and Jan 7, 1979 -Crimes include: Genocide, Crimes against Humanity, Breaches of the Geneva Convention, Torture, Murder, Religious Persecution, and Destruction of Cultural Property during Armed Conflict
1864 Diplomatic Conference (International Committee of the Red Cross)
-Swiss government, 16 States, adopted the Geneva Convention -Standing written rules of universal scope to protect the victims of conflicts -multilateral -obligation to extend care without discrimination to wounded and sick military personnel -respect for and marking of medical personnel, transports and equipment using an emblem
Chemical Weapons and Traditional Weapons
-Syrian government forces used chemicals in an attack in Idlib in March 2015, and in attacks in 2013 -ISIS had used sulfur mustard gas in an attack on areas held by armed opposition groups in Aug 2015 -Chlorine, mustard, and sarin -Using wide-area explosives, barrel bombs, cluster munitions, flammable incendiary weapons
Pres Bush authorization of brutal techniques by the CIA
-The CIA also created its own detention and interrogation facilities- at several locations: in Afghanistan, and even more secretive 'black sites' in Thailand, Poland, Romania and Lithuania, where the highest value captives were interrogated -The consequence of these official actions and statements are now clear: many lower-level troops said they believed that 'the gloves were off' regarding treatment of prisoners -By the end of 2002, at Bagram Air Base in Afghanistan, interrogators began routinely depriving detainees of sleep by means of shacking them to the ceiling
Combatant Immunity
-The most significant consequence of POW status is that lawful combatants may not be punished for their otherwise lawful participation in the hostilities -Althought POWs are entitled to engage in combat, they must comply with the laws of war -Accordingly, a POW may be prosecuted for precapture offenses only if his actions: rise tot he level of a 'war crime' or 'crime against humanity', are unrelated to the state of hostilities
What about punishment for violations of IHL?
-There are violations that are subject to administrative or disciplinary sanctions, as well as prosecution as grave breaches -All individuals are responsible to IHL -rights and duties to act to prevent grave breaches (including those acting under the auspices of the UN) -Grave breaches of IHL elevates violations to the rank of international crimes and designating them as 'war crimes' and entail individual criminal responsibility
What laws governed armed conflicts prior to the advent of contemporary humanitarian law?
-There unwritten rules based on customs that regulated armed conflicts (The Bible and the Koran) -The prohibition on shedding of innocent blood and against slaughter is found in both of these works. -Medieval: Truce of God decreed that all fighting was to cease between Wednesday evenings and Monday mornings and during all great Church feasts. Only in effect within wars among Christians, the Truce of God was not observed in wars against infidels and heretics
Hamdi v. Rumsfeld (2004)
-Yaser Hamdi, an American citizen, was arrested in Afghanistan and transferred to Virginia -He was detained indefinitely without trial or access to an attorney. His father brought suit. -The government argued that the executive branch had to be allowed to detain in wartime. The Fourth Circuit ruled for the government -The Supreme Court reversed: a majority of the Court recognized that the President is authorized to detain persons captured while fighting U.S. forces in Afghanistan and potentially hold such persons for the duration of the conflict to prevent their return to hostilities -enemy combatants have the right to seek review by a neutral decision-maker
Extraordinary Chambers in the Courts of Cambodia
-a hybrid tribunal designed to address the crimes of the Khmer Rouge regime -opened in 2007, following the signing of the agreement (between the UN and the Royal Government of Cambodia) Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea in 2003 -located in Phnom Penh, Cambodia -trials have been conducted in Khmer, French, and English -Court has a hybrid structure, a mix of national and international judges. Both chambers have a majority of Cambodian judges
Peace
-absence of war -absence of conflict -absence of armed force -absence of overwhelming force to overpower
When is IHL applied and to whom?
-applicable in case of declared war -any other armed conflict arising between two or more of Parties to the Conventions -also cover armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination -cases not coveered by the Conventions, the Protocol or other international agreements, or in the case of denunciation of these agreements -civilians and combatants remain under the protection and authority of the principles of IL derived from established custom, from the principles of humanity and from the dictates of public conscience
Geneva Conventions (1st-4th)
-applicable only in wars among states and the war between Al-Qa'ida (a network of individuals and organizations; does not fit easily into the state-centric categorization of IHL) -others argue that the war on terror would be better fought as a police action, with criminal law becoming the applicable referent and not the laws of war
1899 & 1907 Hague Conferences
-build on the these foundations and effectively developed further laws and regulations -the de Martens clause
Combatant
-commanded by a person responsible for his subordinates -having a fixed distinctive sign recognizable at a distance -carrying arms openly -conducting their operations in accordance with the laws and customs of war
Syrian Conflict
-death toll from the conflict ast of Feb 2016 was 470,000 estimated 1 million people were living in besieged areas and denied life-saving assistance and humanitarian aid -more than 117,000 hav ebeen detained or disappeared since 2011, the vast majority by government forces -Torture and ill-treatment are rampant in detention facilitates; thousands have died in detention -non-state armed groups opposing the government also carried out serious abuses including indiscriminate attacks against civilians, using child soldiers, kidnapping, unlawfully blocking humanitarian aid, and torture.
What are governments responsible for?
-enact any legislation necessary to punish anyone committing or ordering the commission of any of the grave breaches -Search for such persons including those resulting from a failure to act when under a duty to do so -grave breaches come under the criminal jurisdiction of all Parties to the Conventions -It is also possible for the offender to be brought before an international regional tribunal, if such a tribunal has been set up, and the ICC
Prisoners of War
-entitled in all circumstances to respect for their persons and their honor prohibits declaring that no quarter will be given -threatening the adversary with no quarter conducting hostilities in such a way that there are no survivors -must at all times be treated humanely and that subject to any privileged treatment on account of rank, sex, state of health, age or professional qualifications -no prisoner may be subjected to physical mutilation or to medical and scientific experiments -prisoners without the recognized status are at all times entitled to the fundamental guarantees
Caseload of ECCC
-four separate cases (Cases 001-004) that include charges of: Genocide against the Cham and ethnic Vietnamese; crimes against humanity including forced labor, evacuations and forced movement of populations, forced marriages and rape; grave breaches of the Geneva Conventions including inhumane treatment, willful killing, torture and unlawful confinement
What has US practice been?
-post 9/11 under former pres Bush -The former U.S. ambassador for war crimes argued, "the war on terror is a new type of war not envisaged when the Geneva Conventions were negotiated and signed" -Others argue that the laws of war did not apply the the specific conflict of Afghanistan or to the larger war on terror
1949 Geneva Conventions I-IV
-regulate 'conventional' war-- that is wars between states -All states are bound (and not simply by customary law, but it has reached universal ratification) by the four Geneva Conventions -These conventions, in times of armed conflict, protect wounded, sick and shipwrecked members of the armed forces, prisoners of war and civilians.
Habeas Corpus
-the 'great writ of liberty' that allows a judge to inquire into the lgality of a prisoner's detention -legal procedure that keeps the government from holding you indefinitely without showing cause -when you challenge your detention by filing a habeas corpus petition, the executive branch must explain to a neutral judge its justification for hold you -prevents the King from simply locking up subjects in secret dungeons and throwing away the key
American Service Members Act (2002)
-the Pres is authorized to acilitate the relase of any US serviceperson who is being detained by or on behalf of the ICC -the law authorizes the use of military force to liberate any American or citizen of a U.S.-allied country being held by the court, which is located in the Hague ("Hague invasion clause") -the law provides for the withdrawal of U.S. military assistance from countries ratifying the ICC treaty -restricts U.S. participation in UN peacekeeping unless the US obtains immunity from prosecution -these provisions can be waived by the president on 'national interest' grounds
Jurisdiction of ICC
-the accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court -the crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court -the UN SC has referred the situation to the Prosecutor, irrespective of the nationality of the accused or the location of the crime -limited to events taking place July 1, 2002 -If a State joins the Court after July 1, 2002, the Court only has jurisdiction after the Statute entered into force for that State -the principle of 'complementarity' provides that certain cases will be inadmissible even tough the Court has jurisdiction -A case will be inadmissible if it has been or is being investigated or prosecuted by a State with jurisdiction
Secretary of State Colin Powell defends the Geneva Conventions (2002)
-the decision to opt out, he argues, "will reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the law of war for out troops." -Pres George Bush= I accept the legal conclusion of the attorney general and the department of justice that I have the authority to suspend Geneva [conventions] as between the US and Afghanistan. I reserve the right to exercise this authority in this or future conflicts
Crimes of Sexual Violence and ICC
-the inclusion of crimes of sexual and gender violence, protection and redress for victims of conflict, and attention to children in war are results of the jurisprudence of the ad hoc tribunals and testimony to the concerted efforts of human rights organizations -Since the ICC's creation in 2002, it has been expected to include crimes of sexual violence in the cases it prosecutes -under the court's founding Rome Statute, sexual slavery, enforced prostitution, forced pregnancy and enforced sterilisation were set out as prosecutable offenses for the first time under IL -in 2014, the Prosecutor restated that commitment, even though 12 years into its operations, the court had yet to convict anyone of rape or other gender-based crimes
Extraordinary rendition
-the transfer, without legal process, of a detainee to the custody of a foreign government for purposes of detenition and interrogation for the purpose of interrogation rather than legal process -The U.S. officials involved did not notify the detainee's families of their whereabouts, or provide the detainees with legal representation -The CIA conspired with dozens of governments to build this program that spanned the globe
What did those memos authorize?
-water-boarding -inducement of suffocation -use of dogs to create intense fear -threatening to kill the detainee or family members -the cold cell or a related inducement of hypothermia
Military Commissions
-were trying individuals who were already deemed unlawful enemy combatants by the executive, in a commission appointed by the executive, outside of traditional and judicial and military law -without any of the protections or guarantees of a court -Four cases related to the right of habeas and the extend of the power of executive detention: Hamdi v. Rumsfeld (2004), Rasul v. Bush (542 U.S. 2004), Hamdan v. Rumsfeld (2006), Boumediene v. Bush (2008) -in each case the court has ruled against the government's arguments of the expansive executive power to designate individuals as 'enemy combatants' to strip away their rights
Kellogg-Briand Pact
1928; banning resort to war; still in force, 60+ countries are party; first outright ban on the use of force
Agent of Persecution
A person or organization -- governments, rebels or other groups -- which force people to flee their homes.
War
Classic understanding= clear line between a state of war and a state of peace. Better to talk about armed conflict, and better to presume that armed conflict takes many forms. Prior to the 20th century, the use of war was not illegal. War was governed (laws of war).
November 13, 2001
George Bush signs a military order giving him the authority to both detain prisoners indefinitely and to establish military commissions to try them. National Security Advisor Condoleezza Rice and Secretary of State Colin Powell learn of the order only when it is reported in the media
Article 41
Impose sanctions - arms embargo (against Rwanda). economic and trade sanctions (Iraq), diamonds embargo (Angola), prohibition on all States to finance terrorists (SC Res 1373 (2001))
International Humanitarian Law
Int'l HR law and humanitarian law impose clear obligations on States and, during war, all parties to non-international conflicts for the treatment and protection of all persons in their custody. Detainees must be treated humanely and protected from violence or life-threatening conditions, including from any form of torture or ill treatment. Medical care and sufficient food are to be provided.
Additional Protocol II
Internal or non-international armed conflicts that is war that occurs with the territory of a sovereign state
The Prosecutor
Is responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the court -for examining them and for conducting investigations and prosecutions before the Court -for determining if there is/ is no reasonable basis to proceed -States Parties or the UN SC may refer situations of crimes within the jursidiction of the Court to the Prosecutor -may also begin an investigation on own initiative: recieves and analyzes information submitted by a variety of reliable sources, and this was controversial, because it marks an independent prosecutor -If the prosecutor concludes there is a reasonable basis to proceed with an investigation, a (3 judges) Pre-Trial Chamber authorizes an investigation
Jean-Pierre Bemba Gombo
March 1, 2016; Trial Chamber III unanimously convicted for his responsibility as commander-in-chief for crimes of murder, pillage, and rape committed by soldiers under his effective authority and control in the Central African Republic -Makes Bemba not only the first person to be convicted by the ICC for crimes committed by troops under his command, but the first person to be convicted of sexual violence
Article 51
Noting in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs agianst a Member of the UN, untill the SC has taken measures necessary to maintain internal peace and security. -Measures taken by members in the exercise of this right of self-defense shall be immediately reported to the SC and shall not in any way affect the authority and responsibility of the SC under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
Article 39
SC must determine if there is a (1) threat to peace; (2) breach of peace; or (3) act aggression
Chapter VII of the Charter
Short hand for all action with respect to threats to the peace, breaches of the peace, and acts of aggression (articles 39-51 of the UN Charter)
S.J. Res. 23 - 2001
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on 9/11 or harbored such organization or persons, in order to prevent any future acts of international terrorism against the US by such nations, organizations or persons.
Proportionality
Use of force in proportion to the desired goals
Necessity
Use of force only as is absolutely needed
Additional Protocol I
Wars of national liberation, decolonization or wars against colonial or racist regimes. Specifically formulated with the states of Israel and South Africa in mind