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Abstract:
It is essential to correctly classify situations in the world as ones of war or peace: human lives depend on the distinction, but so do liberty, property, and the integrity of the natural environment. President Bush's "war on terror" finds war where suspected members of al Qaeda are found. By contrast, war under international law exists where hostilities are on-going. To the extent there is ambiguity, the United States should err on the side of pursuing terrorists within the peacetime criminal law enforcement paradigm, not a wartime one. Not only does the criminal law better protect important human rights and other interests, it avoids elevating terrorists to the status of combatants in a war with the world's only superpower.

War on Terror, Terrorism, International Law, War, human rights, combatants

Abstract:
In 1999, NATO members used force in the Kosovo Crisis without Security Council authorization. In 2003, the United States led a small coalition against Iraq, again, without Security Council authorization. Some commentators have called these "failures" of the Security Council to act. This article argues they are examples of Security Council success. Using force against Serbia and Montenegro in the Kosovo Crisis and against Iraq was inappropriate. The aftermath of force in both cases makes that apparent. The Council's decision not to authorize force in these cases should lead us to conclude that the Council's design remains sound. If we wish to improve the Council, it is not the design that should be changed but the level of Council adherence to the law of the Charter and general international law. Secretary-General Kofi Annan's High-level Panel on Threats, Challenges and Change has endorsed a view largely compatible with the one advocated here. The Panel wants no change in the role of the Security Council as the sole body to authorize the use of force in cases other than self-defense. The Panel does call for stricter adherence by the Council to such general international law principles as proportionality.

Balkans, Yugoslavia, UN, United Nations, war, force

Abstract:
Beginning in 2002, lawyers for the Bush Administration began producing the now infamous legal memoranda on the subject of interrogation. The memoranda advise interrogators that they can torture people without fear of prosecution in connection with the so-called global war on terror. Much has been and will be written about the expedient and erroneous legal analysis of the memos. One issue at risk of being overlooked, however, because the memos emphasize torture, is that the United States must respect limits far short of torture in the conduct of interrogations. The United States may not use any form of coercion against persons detained in an armed conflict, nor may it engage in cruel, inhuman and degrading treatment at any time. The great effort of the memo writers to restrict torture to the most extreme conduct imaginable obscures the fact that the United States has wider obligations. Avoiding torture is not enough. Interrogators must also respect the broader restrictions on coercive, cruel, inhuman, and degrading treatment.

The legal prohibition has, first, moral, but also pragmatic underpinnings. Apparently some in the Bush Administration have become persuaded that torture, coercion, cruelty and abuse can be effective methods of interrogation and that the need for information outweighs the illegality and immorality of using such means. The weight of the evidence is firmly against the conclusion, however, that forceful interrogation is as reliable as non-forceful methods. Using unlawful means has been counter-productive in effectively responding to terrorism. The evidence on information gathering supports international law's absolute prohibition on torture, cruelty, and coercion.

Interrogation, Terrorism, Torture, Coercion, Cruel, Inhuman, and Degrading Treatment, Combatant, Civilian, Unlawful Combatant, Detainee, Guantanamo Bay, Abu Ghraib, Afghanistan, Geneva Conventions, Ticking Time Bomb, Military Necessity, Necessity Defense, Torture Memos, International Law

Abstract:
U.S. Secretary of Defense Donald Rumsfeld dismissed the looting of the Iraqi National Museum in April 2003 by remarking, "stuff happens." In doing so, he gave an early indication that in planning to invade Iraq, the Bush Administration failed to take seriously the legal obligations of an occupying power. Occupying powers have a variety of binding legal obligations, including obligations to stop looting, protect cultural property, and protect persons in detention. Yet, the Administration sent a wholly inadequate force to fulfill those obligations, and, more seriously, the force received no direct and imperative orders to do so. As a result, in addition to the questionable basis for initiating war the war in the first place, the Administration conducted it in a way that amounts to an independent ground for concluding the decision to invade Iraq on March 19, 2003, violated international law.

This article focuses on the Administration's failure to protect Iraqi cultural property as one clear example of the Administration's disregard for its obligations. The article discusses cultural property and the long, continuous development of legal principles, through treaties and rules of customary international law for the protection of cultural property in wartime-developments in which the United States has played a leading role. On the eve of the Iraq invasion, no US leader could have been in doubt about the legal requirements to stop looting and protect cultural property. Yet, we find little evidence of any preparation to do so. The article analyzes the literature on Iraqi war planning to understand why this lapse occurred. It further analyzes the consequences of this failures, including: the possibility that individuals will be held accountable; the high cost to the US associated with the war, and Iraq's right to claim reparations, including in-kind reparations from U.S. holdings of Iraqi cultural property.

Iraq, cultural heritage, cultural property, Hague Convention, art, jus in bello

Abstract:
In September 2003, United Nations Secretary General Kofi Annan launched another round of United Nations reform. By October 2005, commentators concluded the attempt accomplished little. But there were results and possibly more important results than simply adding more seats to the Security Council: the United Nations Charter principles regulating the use of force were saved from destruction. The vast majority of UN members endorsed a return to orthodoxy. They renewed their commitment to banning the use of force except in self-defense to an armed attack or with the authorization of the Security Council. The reform process also highlighted the need for the Council to respect international legal principles when it authorizes force. These results may mitigate damage to the international legal system caused by the 1999 Kosovo intervention and the 2003 Iraq invasion.

United Nations, United Nations Charter, United Nations reform, Security Council, Kosovo, Iraq, international law, use of force, self-defense, humanitarian intervention

Abstract:
Since the March 2003, U.S.-led invasion of Iraq, rumors have persisted of a United States plan to attack Iran. Some U.S. officials are apparently willing to contemplate the use of military force to prevent Iran from developing nuclear weapons. Under international law, however, there is no right without Security Council authorization to use significant military force on the territory of another state to stop nuclear research. Knowing this, alternative arguments are being floated by those sympathetic to the plan to attack Iran. One such argument asserts that the U.S. could attack Iran on the basis of collective self-defense with Iraq or Israel.

This article makes clear that the United States in fact has no right to attack Iran on the basis of collective self-defense either. International law prohibits the use of force except in response to an armed attack that is occurring or with Security Council authorization. Even when one of these two exceptions to the general prohibition exists, any lawful use of force must have a chance of succeeding - of accomplishing the military objective. Moreover, and most importantly in the case of Iran, any use of force must have a chance of succeeding in a way that does not cause disproportionate death, injury, or destruction. Iran's nuclear research sites are buried deep in the ground and scattered throughout the country near major population centers. Bombing these sites will accomplish little beside the deaths of many innocent people.

The article concludes that the great legal and moral imperative to preserve the peace mandates that the United States find means other than military force to respond to Iran's nuclear ambitions. Negotiation has succeeded in the past in persuading states to give up nuclear weapons and nuclear weapon programs. Renewed United States commitment to negotiation, to the peaceful settlement of disputes and to international law in general will give it new authority to demand that Iran and all states respect their own international law obligations, including the obligation not to acquire nuclear weapons.

Iran, nuclear weapons, Nuclear Non-Proliferation Treaty, self-defense, collective self-defense, United Nations, United Nations Charter, United Nations Security Council, necessity and proportionality, international law, Nicaragua Case, Bosnia v. Serbia, Oil Platforms, state responsibility

Abstract:
Following the attacks of 9/11, President George W. Bush declared that the United States was in a "global war on terrorism". His administration claimed the wartime privileges to kill without warning and detain without trial anyone suspected of association with terrorist organizations anywhere in the world. 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.

combatant, combat zone, conflict zone, hostilities, war, armed conflict, non-international armed conflict, terrorism, global war on terrorism

Abstract:
Within hours of the 9/11 attacks in the United States, President George W. Bush declared “a global war on terrorism”. Experts around the world assumed this declaration was a rallying cry, a rhetorical device to galvanize the nation to serious action. By November 2001, however, the evidence began to mount that the President was ordering actions that could only be lawful in a de jure armed conflict: targeting to kill without warning, indefinite detention without trial, and search and seizure on the high seas without consent. It was difficult to criticize these actions on the basis of international law, however, given that international law contained no widely accepted definition of armed conflict. By May 2005, the International Law Association determined that there was a pressing need for a report on the meaning of armed conflict supported by international law. The Use of Force Committee presented its Initial Report on the Meaning of Armed Conflict in International Law at the Rio de Janeiro biennial meeting of the ILA. The Report concludes that all armed conflicts have as minimum two necessary characteristics: 1.) the presence of organized groups 2.) engaged in intense armed fighting. The Report indicates that while the United States has been engaged in an armed conflict in Afghanistan and in Iraq since 9/11, it has not been engaged in a global armed conflict. The Initial Report will be expanded for presentation in final form in 2010 at The Hague biennial meeting.

terrorism, 9/11, armed conflict, war on terrorism, definition of armed conflict

Abstract:
The history of international law is, in large part, about the development of restraints on states' right to resort to force in dealing with external conflicts. Today, states may use force only in self-defense to an armed attack or with Security Council authorization. Even in these cases, states may use force only as a last resort, and then only if doing so will not disproportionately harm civilians, their property, or the natural environment. These rules restricting force are found in treaties (especially the United Nations Charter), customary international law, and the general principles of international law. In other words, the three primary sources of international law yield important rules restricting the use of force. The rules on use of force, like all international law rules, are binding on states for the same reason the law of any jurisdiction binds - because it is accepted as law by the community.

The following remarks on the rules regulating the use of force are divided into three parts. Part I provides a brief history and overview of the current rules on the use of force. Part II applies these rules to assertions that the United States could lawfully attack Iran today. Part III then discusses why these rules are binding as law and answers arguments to the contrary. These remarks will, therefore, touch on the past, present, and future of the law on the use of force to preserve the peace between states.

Abstract:
Within days of his inauguration as president, Barack Obama ordered the CIA to continue President Bush’s policy of attacks by unmanned aerial vehicles (UAVs) or drones in Western Pakistan. By October of 2009, the CIA had launched around 80 drone attacks. These attacks cannot be justified under international law for a number of reasons. First drones launch missiles or drop bombs, the kind of weapons that may only be used lawfully in an armed conflict. Until the spring of 2009, there was no armed conflict on the territory of Pakistan because there was no intense armed fighting between organized armed groups. International law does not recognize the right to kill without warning outside an actual armed conflict. Killing without warning is only tolerated during the hostilities of an armed conflict, and, then, only lawful combatants may lawfully carry out such killing. Members of the CIA are not lawful combatants and their participation in killing persons—even in an armed conflict—is a crime. Members of the United States armed forces could be lawful combatants in Pakistan if Pakistan expressly requested United States assistance in a civil war to end a challenge to Pakistan’s civilian government. No express request of this nature has been made. Even if it were made, drone attacks are the wrong tactic in the context of Western Pakistan. The CIA’s intention in using drones is to target and kill individual leaders of al-Qaeda or Taliban militant groups. Drones have rarely, if ever, killed just the intended target. By October 2009, the ratio has been about 20 leaders killed for 750-1000 unintended victims. Drones are having a counter-productive impact in Pakistan’s attempt to repress militancy and violence. The use of the drone is, therefore, violating the war-fighting principles of distinction, necessity, proportionality and humanity.

drones, CIA, targeted killing, Taliban, Al-Qaeda, Pakistan, war on terror, terrorism, definition of armed conflict, combatant, civilian, distinction, necessity, proportionality, humanity

Abstract:
The article tells three stories of great art and priceless antiquities: one about early Christian mosaics from Cyprus, another about five paintings by the Viennese master, Gustav Klimt, and the third about an ancient statute of a Sumerian king from Iraq. All three stories discuss the international law protecting cultural heritage in time of war and occupation. They all tell of individuals pursuing extraordinary profits from the sale of the objects despite the international law that, properly applied, should have protected them from damage and kept them all in places of public display.

The article also tells how in each case U.S. authorities were either unfamiliar with or resistant to applying the relevant international law. The article advocates greater knowledge of international law in the United States so that Americans and people everywhere can more fully realize the advantages of a strong rule of law in global affairs - not the least of which includes better protection of cultural treasures.

art law, international law, international law in the United States, war, armed conflict, occupation, law of war, looting, smuggling, cultural heritage, cultural property, choice-of-law, sovereign immunity, retroactive application of law