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Abstract: This draft article addresses the absolute and peremptory prohibition of torture and other forms of ill-treatment under treaty-based and customary international law; crimes of torture and duties of states to either initiate prosecution or extradite all persons of any status who are reasonably accused; four general types of criminal responsibility; the right to fair compensation; the definition of torture and related criteria; types of unlawful tactics and serial criminality authorized and abetted by President Bush, Vice President Cheney, and others in the Administration; the need for new U.S. legislation and presidential withdrawal of void putative treaty reservations; and the unavoidable constitutionally-based duty of President Obama to recapture the rule of law and to end seven years of impunity by either initiating prosecution of or extraditing all persons who are reasonably accused of such international criminal activity.
complicity, Convention Against Torture, crime against humanity, cruel, degrading, disappearance, Geneva Conventions, human rights, humanitarian law, impunity, inhumane, interrogation, law of war, nonimmunity, prosecute or extradite, rule of law, secret detention, torture, war crime, waterboarding
Abstract: This article addresses the permissibility of use of force in self-defense in response to non-state actor armed attacks and the permissibility of U.S. use of drones in Pakistan for such purposes. Contrary to some writers, when directed merely against the non-state actors, responsive force is not engaged in against the foreign state as such or as an attack “on” or “against” its territory. Responsive measures of self-defense in a foreign state would not necessarily create a state of war between the responding state and the foreign state or between the responding state and the non-state actors, and whether or not an armed conflict exits to which the laws of war apply would be tested under normal criteria with respect to the existence of an international or non-international armed conflict. It is understandable, therefore, that a self-defense paradigm can be different than a war paradigm and both are different than a mere law enforcement paradigm. Permissibility of use of drones in Pakistan also depends on inquiry into many features of context and appropriate application of principles of reasonable necessity and proportionality.
Afghanistan, armed attack, captures, Caroline incident, drones, life, human right, indiscriminate, law enforcement paradigm, NATO, necessity, non-state actor, Pakistan, proportionality, Security Council, self-defense, self-defense paradigm, targeted killing, war, war paradigm
Abstract: In the author's words: "A common plan to violate customary and treaty-based international law concerning the treatment and interrogation of so-called terrorist and enemy combatant detainees and their supporters captured during the US war in Afghanistan emerged within the Bush Administration in 2002 . . . (the plan) was approved in January 2002 and led to high-level approval and use of unlawful interrogation tactics that year and in 2003 and 2004. A major part of the plan was to deny protections under the customary laws of war and treaties that require humane treatment of all persons who are detained during an armed conflict, regardless of their status and regardless of any claimed necessity to treat human beings inhumanely. The common plan and authorizations have criminal implications, since denials of these protections are violations of the laws of war, which are war crimes." The author goes on to review the laws of war and human rights, and their applicability to events which took place during the 2001 Afghan War. The author then goes on to detail the memoranda created by the Bush administration that purported to justify the denial and abrogation of these rights. Finally, the author examines the interrogation practices and procedures implemented at Abu Ghraib and similar locations, and their significance.
Geneva convention, human rights, laws of war, war crimes, United States Afghanistan, Taliban, international law, treaty, interrogation, Gonzales memo, torture , Abu Ghraib, Dunlavey memo, stress positions, Convention Against Torture & Other Cruel, Inhuman or Degrading Treatment or Punishment
Abstract: This article addresses treaty-based and customary international laws that provide the right to compensation regarding forced disappearance, human rights violations, and violations of the laws of war authorized and abetted by Bush, Cheney, and others from 2001-2008. The Geneva Conventions expressly recognize private rights and contemplate compensation in courts of law. Federal statutes execute the Geneva Conventions and other international laws for civil sanction purposes, and several U.S. cases have recognized personal liability for violations of human rights law and the laws of war. Also identified are various reasons why no federal statute should be interpreted contrary to international law to obviate civil liability and, under the last in time rule, some seemingly limiting statutes regarding substitution of the United States for individual defendants are prior in time to relevant treaties and must not prevail.
ATCA, Bush, Cheney, civil suit, compensation, damages, disappearance, FTCA, human right, Geneva Conventions, last-in-time, nonimmunity, reparation, substitution, torture, TVPA, war crime
Abstract: This essay documents potential short and long-term consequences with respect to Bush Administration violations of the laws of war and human rights law. These can involve placing perpetrators and complicitors in harm’s way; mission failure; aid to the enemy; and deflation of U.S. authority, law, and power. Unlawful responses to terrorism and a lawless executive branch do not serve U.S. national security interests.
aid to enemy, Bush, CIA, civil liability, complicity, Convention Against Torture, criminal liability, extradition, human rights, intelligence, interrogation, law of war, national security, terrorism, torture, war crime, mental harm
Abstract: This essay identifies a history of the Alien Tort Claims Act unknown to the Supreme Court when it decided in Sosa, contrary to early cases and opinions of the Attorneys General and a long line of cases after the landmark Filartiga case, that the ATCA does not provide a cause of action. If the Supreme Court revisits the issue, the history identified should cause the Court to reverse its ruling in Sosa concerning the statute’s creation of a cause of action. The essay also identifies relevant judicial power to identify and clarify customary international law, the standard of sufficient definability, and the role of the ATCA as implementing legislation that incorporates international law by reference and executes any non-self-executing treaty for use in civil suits by alien plaintiffs.
access to courts, ATCA, ATS, cause of action, civil action, customary international law, denial of justice, Filartiga, Founders, history, human right, incorporation by reference, judicial power, jurisdiction, jus cogens, right to a remedy, self-executing, Sosa, treaty, universal, war crime
Abstract: This article reiterates a longstanding principle of American democracy that no one, not even the President, is above the law. The Bush Administration's unlawful conduct regarding detainee treatment, secret detention and renditions and domestic spying are addressed as well as its unacceptable claims to power unchecked by international law or federal statutes. Names and paper trails concerning the serial criminality engaged in are documented as well as the types of treaty-based and customary international laws that were violated. Numerous federal cases are addressed that document judicial power to review commander-in-chief decisions, the fact that all persons within the Executive branch are bound by the laws of war, and the fact that Congress has power to place certain limits on commander-in-chief powers during war. Misinterpretations of the Authorization for Use of Military Force are addressed as well as reasons why certain portions of the 2006 Military Commissions Act either violate the separation of powers or are trumped by treaty-based and customary international laws that prohibit inhumane treatment and require access to courts and rights to a remedy.
access to courts, Authorization for the Use of Military Force, CIA, commander in chief, common Article 3, Convention Against Torture, cruel, degrading, detention, Framers, Geneva Convention, Guantanamo, human right, inner circle, inhuman treatment, interrogation, torture, war crime, waterboarding
Abstract: This essay demonstrates that the Supreme Court’s decision in Boumediene has reaffirmed that Executive power is restrained by law and that judicial review of the propriety of executive detention of persons in time of war or some other national security crisis is an essential part of our constitutional process. Further, the extraterritorial reach of the Constitution places unavoidable limits on Executive power. In fact, in view of the constitutional design, it is a fundamental principle of our constitutional form of government that the Executive is “entirely a creature of the Constitution” and that “[i]t can only act [here or abroad] in accordance with all the limitations imposed by the Constitution.” Understandably, therefore, the Court has often reaffirmed the related principle that “[n]o man in this country is so high that he is above the law” and every known judicial opinion since the creation of the United States has affirmed that the President and all others within the Executive branch are bound by the laws of war.
above the law, AUMF, Balzac, Boumediene, constitution, Downes v. Bidwell, executive, extraterritorial constitution, Guantanamo, habeas, law of war, Medellin, national security, Reid v. Covert, terrorism
Abstract: The article addresses treaty-based obligations of the United States under the United Nations Charter to enforce a binding judgment of the International Court of Justice in Case Concerning Avena (Mexico v. United States) and U.S. Executive execution of the judgment through an executive memorandum - all of which the majority of the Supreme Court disagreed with in Medellin v. Texas (2008). The article also addresses important U.S. Constitutional issues concerning the Article II mandate to the President to faithfully execute the laws, the supremacy of all treaties against the laws of states within the U.S., federal preemption, and state power to comply with decisions of the International Court of Justice. In particular, the article addresses several Supreme Court opinions that were not addressed by the majority in Medellin and which demonstrate that the President has the competence, and responsibility, faithfully to execute treaties despite a statement in the majority opinion to the contrary. The article also documents why the Tenth Amendment is no barrier with respect to the reach of treaty law and documents numerous federal and state court cases on point as well as the many subjects regulated by treaty law that have had primacy over state authority.
Avena, Constitution, delegated, enhancement of power, execute the law, execute treaties, federal preemption, Founders, Framers, I.C.J., Medellin, president, self-executing, supremacy, Tenth Amendment, textualist, treaty, U.N. Charter, Vienna Convention
Abstract: This article addresses several problems posed by Bush Administration responses to al Qaeda and terrorism in view of relevant treaty-based and customary international law, including: the legal status of al Qaeda, self-defense against al Qaeda armed attacks, status of members of al Qaeda captured in Afghanistan and Iraq, combatant status and immunity, prisoner of war status, security detainees, treatment of detainees, and prosecution of detainees. With respect to prosecution, the article also outlines several problems posed by use of military commissions, especially in view of the Supreme Court’s decision in Hamdan and the 2006 Military Commissions Act.
al Qaeda, combatant, cruel, detainee, Geneva Conventions, Guantanamo, Hamdan, human right, inhumane, military commission, Military Commissions Act, non-state actor, prisoner of war, secret detention, self-defense, terrorism, torture, war, war crime
Abstract: This article provides the most thorough exposition to date of actual trends in early expectation and judicial decision that are relevant to whether the people, Congress, the President, and the states are bound by customary international law and whether the law of nations is part of the laws of the United States and, therefore, has a constitutional base. Customary international law has been used directly and indirectly for interpretive purposes in numerous federal and state cases. Importantly, the fact that the people are bound by customary international law and the federal government is one of delegated powers requires recognition that the people could not transfer to Congress of the federal executive an authority to violate the customary law of nations. As the article demonstrates, several Founders and Framers shared that recognition.
Chase, Congress, Constitution, customary international law, define and punish, Duponceau, Founders, Framers, human right, Iredell, international law, Jay, Jefferson, judicial, law of nations, law of war, laws of the United States, Madison, Marshall, President, States, supremacy, treaty, Wilson
Abstract: This article, cited later by the Supreme Court in Hamdi v. Rumsfeld, addresses the propriety of detention without trial under human rights law and the laws of war as well as judicial power and responsibility to review the propriety of detention. Significant trends in judicial decision concerning judicial power to second-guess the commander in chief during war with respect to the status, rights and detention of persons and the seizure of property are documented. Contrary to claims of the Bush Administration, the President does not have unreviewable power to classify persons as enemy or unlawful combatants and to detain such persons without trial. International law allows detention without trial in certain circumstances, but also requires access to courts of law and the right to challenge the propriety of detention.
commander in chief, Constitution, customary international law, detention, Geneva Convention, habeas, Hamdi, human right, ICCPR, international law, judicial power, judicial review, law of war, liberty, necessity, Paquete Habana, pow, president, review of detention, seizure, terrorism, treaty
Abstract: The essay identifies serious defects in present U.S. legislation for prosecution of genocide and changes that are necessary for U.S. compliance with the Genocide Convention. It also notes that there is no U.S. legislation that allows prosecution of crimes against humanity as such and offers an example of needed legislation. New legislation would provide flexibility for the U.S. with respect to its obligation to either prosecute or extradite persons accused of such core crimes.
crimes against humanity, core crimes, extradite, genocide, ICC, incorporation by reference, international crime, legislation, prosecute, treaty
Abstract: This Article discusses the human rights responsibilities of private corporations. Part I addresses how decisions and activities of multinational corporations impact human rights. Part II examines corporate liability under human rights laws by examining trends in judicial decisions in the United States and foreign states and human rights instruments. Part III explores the types of human rights deprivations that multinational corporations might cause. This Article concludes by predicting that there will be increasing scrutiny of corporate deprivations of human rights at the domestic, regional, and international levels.
ATCA, Civil liability, Color of law, Company, Complicity, Corporate liability, Corporation, Human right, ICCPR, In concert with, International law, Private actor, Private duties, Remedy, Tort, Universal Declaration
Abstract: This essay identifies the reality of private rights, duties, and participation in the international legal process. Awareness of various forms of private individual, group, and institutional participation can help to avoid false myth and guide realistic inquiry concerning identification and clarification of private rights, duties, and competencies and forms of private participation in normative formation and sanction processes. Clearly, international law has not been merely the province of the “state.”
Alien Tort Claims Act, authority, corporations ,human right, immunity, international crime, international law, norms, participants, participation, private actor, private duty, process of review, realism, sanctions, self-determination, United Nations Charter
Abstract: This friend of the court brief is like an essay demonstrating why the military commissions at Guantanamo Bay are not lawfully constituted. As demonstrated, the military commissions are not “regularly constituted” or “previously established in accordance with pre-existing laws” and are therefore without jurisdiction under relevant international laws. They are also not constituted within a theater of war or war-related occupied territory and are therefore without lawful jurisdiction. Additionally, they violate several multilateral and bilateral treaties (also important for our nationals abroad) that require equal protection of the law and equality of treatment more generally and are, therefore, without lawful power or authority under supreme laws of the United States.
bilateral treaty, Boumediene, common article 3, Constitution, discrimination, due process, equality, Geneva Convention, Hamdan, human right, ICCPR, jurisdiction, last in time, law of war, military commission, regularly constituted, rights under treaties, separation of powers, treaty, UCMJ
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