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Mindy Cooper

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  • And the only "conspiracy" crimes that have been recognized by international war crimes tribunals (whose jurisdiction often extends beyond war crimes proper to crimes against humanity and crimes against the peace) are conspiracy to commit genocide and common plan to wage aggressive war, which is a crime against the peace and requires for its commission actual participation in a "concrete plan to wage war."
  • The International Military Tribunal at Nuremberg, over the prosecution's objections, pointedly refused to recognize as a violation of the law of war conspiracy to commit war crimes, see, e.g., 22 id., at 469,39 and convicted only Hitler's most senior associates of conspiracy to wage aggressive war, see S. Pomorski, Conspiracy and Criminal Organization, in the Nuremberg Trial and International Law 213, 233-235 (G. Ginsburgs & V. Kudriavtsev eds. 1990).
  • Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which long predated the attacks of September 11, 2001 and the AUMF. That may well be a crime,41 but it is not an offense that "by the law of war may be tried by military commissio[n]." 10 U. S. C. §821.

  • 821. ART. 21. JURISDICTION OF COURTS-MARTIAL NOT EXCLUSIVE
      
    The provisions of this chapter conferring jurisdiction upon courts- martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.

  • But Israel's technological edge does not mean that it enjoys every advantage in its battles with terror groups: While Israel subscribes to traditional restrictions on its battlefield conduct, its Islamist and jihadi adversaries, who eschew international humanitarian law, enjoy an asymmetric advantage born of psychological impunity.
  • The Israeli military faces a serious dilemma because it adheres to a specific moral code. Despite Arab propaganda to the contrary, Israeli military planners respect human life.
  • Comparative prisoner treatment also highlights the discrepancy: The Israeli government provides access to and information about captured terrorists, opening itself to criticism of their treatment,[14] whereas neither Hamas nor Hezbollah even acknowledge whether captured Israelis are alive, let alone allow international monitors access to them.

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  • After pressure from European allies angered by the administration's original stance, he wanted to send a signal to the world that the United States respects the convention and expects its own captured soldiers to be accorded its protections. But critics argue that the president's action makes a mockery of the convention and may or may not protect American soldiers.
  • It also does not limit American ability to interrogate the captives, though it was not known whether that issue influenced the decision.
  • Prisoners of war can be tried only on charges of war crimes, but unlawful combatants -- as the United States is calling the captives even though the term does not officially appear in the convention -- can be tried for acts before the conflict in Afghanistan, like conspiring to attack the World Trade Center.

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  • the Bush administration sought an alternative to killing terror suspects with missiles fired from drone aircraft or seizing them overseas and imprisoning them in secret C.I.A. jails.
  • The program was designed in the frantic weeks after the Sept. 11 attacks when President George W. Bush signed a secret order authorizing the C.I.A. to capture or kill operatives of Al Qaeda around the world.

in list: Tutorial

  • the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
     
     The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
     
     Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
  • armed conflict not of an international character
  • In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

  • Q What about the U.S. special forces? They don't -- they often do not wear uniforms. They often do not carry their weapons outwardly. If they are captured, they wouldn't be prisoners of war?

     

    MR. FLEISCHER: The terms of the Geneva Convention apply to all, and those terms speak for themselves.

  • 2. While all combatants are obliged to comply with the rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war, except as provided in paragraphs 3 and 4.

  •  3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he
     carries his arms openly:
     
     (a) during each military engagement, and
     (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.
     
     Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 (c).
  • 4. A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed

  • On September 11 the Taliban government was recognized by only three countries in the world and had been refused the right to represent Afghanistan in the United Nations. Indeed, Afghanistan itself was treated as an outlaw state, a status confirmed by a Special Rapporteur appointed by the UN Human Rights Commission, who reported annually on the severe human rights abuses and crimes against humanity that were routinely taking place in the country. As well, Afghanistan was the recipient of universal censure, including from Islamic governments, for its insistence on removing any taint of non-Islamic religious devotion by the deliberate destruction of the huge world renowned statues of The Buddha at Budiman just months earlier.
  • Against such a background it was generally credible that Afghanistan would be treated as an enemy state held responsible for the attacks of September 11.
  • President Bush in his September 20 address to a joint session of Congress articulated some non-negotiable demands directed at the Taliban regime that seemed to focus exclusively on al Qaida - seeking custody of Osama bin Laden and the al Qaida leadership, as well as terminating their presence within the country.

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in list: Tutorial

  • Common Article   2 specifies that the Conventions 'apply to all cases of declared   war or of any other armed conflict which may arise between two   or more of the High Contracting Parties, even if the state of   war is not recognized by one of them'. Thus the existence or   non-existence of a declaration of war, or a formal state of   war, is not necessary for the application of the Conventions.   Despite such provisions, the laws of war in general, and the   Geneva Conventions in particular, have often proved difficult   to apply in anti-terrorist military operations.
  • The laws of war are not the only body of law potentially relevant   to the consideration of terrorist actions.
  • In strict legal terms, the law relating to the right to resort   to the use of force (jus ad bellum) and the law governing   the actual use of force in war (jus in bello) are separate.   The latter applies to the conduct of international conflict   irrespective of the issue of the right of the belligerents to   resort to the use of force.

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in list: Tutorial

  •  According to Cassese, ‘an armed conflict which 
     
    takes place between an Occupying Power and rebel or insurgent groups – whether or not they 
     
    are  terrorist  in  character  –  in  an  occupied  territory,  [likewise]  amounts  to  an  international 
     
    armed conflict’
  • since  contemporary  trans-national  terrorist  groups  increasingly  operate 
     
    independently  from  any  State  and  often  do  not  fit  the  definition  of  a  national  liberation 
     
    movement in the sense of AP I, eventual hostilities between them and a State or group of States 
     
    might have more the character of a non-international rather then international armed conflict. 
     
    This covers scenarios in which a State is fighting terrorist groups either in its own territory or in 
     
    a foreign territory, when the host State is not involved in hostilities.

in list: Tutorial

  •  the  AP  II  is  itself  an  unreliable  source  of  humanitarian  protections  in  non-
     
    international armed conflicts, since its application depends on the nature of the non-state armed 
     
    group (responsible command and the ability to implement AP II), on the exercise of a minimum 
     
    control  of  territory  thereby  (exercise  of  de  facto  control  over  a  part  of  a  national  territory, 
     
    sufficient to allow military operations of a sustained and concerted character to be carried out) 
     
    and on intensity of military operations.
     
    24
     
     The underlying difficulty in the context of terrorism is 
     
    that  much  of  the  terrorist  violence  is  perpetrated  by  loosely  organized  groups  or  networks,  or 
     
    individuals  that,  at  best,  share  a  common  ideology,  but  could  hardly  be  characterised  as  a  well 
     
    organized insurgency, qualifying as a ‘party’ to a conflict within the traditional meaning of AP II.

  •  law of armed conflict in this context is not exactly an elegant fit. Most of its 
     
    provisions  were  developed  in  times  when  non-state  violence  was  not  considered  a  matter  of 
     
    international  law
  • When armed violence is used outside the context of an armed conflict in the legal sense or 
     
    when  a  person  suspected  of  terrorist  activities  is  not  detained  in  connection  with  any  armed 
     
    conflict,  international  humanitarian  law  does  not  apply.
     
    14
     
      Instead,  these  acts  should  be 
     
    characterised first and foremost by reference to the national law of States, international treaties 
     
    on  terrorism  and  related  matters,  and  other  relevant  parts  of  international  law  that  apply  in 
     
    peacetime  as  well  as  wartime,  such  as  the  rules  relating  to  genocide, crimes  against  humanity 
     
    and certain rules relating to human rights.
     
    15
     
     Accordingly, they should be addressed by means of 
     
    domestic or international law enforcement.

in list: Tutorial

  • Two categories of armed conflicts are recognized in international humanitarian law as 
     
    legal  categories  triggering  its  formal  application:  international  and  non-international  armed 
     
    conflicts.  The  largest  and  most  developed  part  of  international  humanitarian  law  regulates 
     
    international  armed  conflicts,  which  were  defined  in  Article  2,  common  to  all  four  Geneva 
     
    Conventions  (common  Article  2),  as  armed  conflicts  ‘between  two  or  more  High  Contracting 
     
    Parties’
12 Dec 09

Copyright 1992
New York University Law Review
December 1992
67 N.Y.U.L. Rev. 1185
"Speaking in a Judicial Voice"
by Ruth Bader Ginsburg
LexisNexis® Academic: Document

  • The Madison Lecture series has exposed and developed two main themes: human rights and the administration of justice, particularly in our nation's federal courts. n1 My remarks touch on both themes; I will speak first about collegiality in style, and next, about moderation in the substance of appellate decisionmaking. My views on these matters reflect experiences over a span of three decades. They have been shaped from my years as a law teacher beginning in the 1960s, through the 1970s when I helped to launch the American Civil Liberties Union's Women's Rights Project, and most recently during the nearly thirteen years I have had the good fortune to serve on the United States Court of Appeals for the District of Columbia Circuit. What I hope to convey about courts, I believe, is in line with the founders' - Madison's and Hamilton's - expec [*1186]  tation. As a preface, I will comment on that expectation.
  • I spoke of the founders' "original understanding" a moment ago, and that expression, as I comprehend it, bears clarification in this preface. In his 1987 Foreword to The Evolving Constitution, the second collection of Madison Lectures, Norman Dorsen stressed, as Chief Justice John Marshall did in 1819, that our fundamental instrument of govern-
     [*1187]  ment is an evolving document, "an instrument "intended to endure for ages to come.' " n6 Professor Dorsen quoted Chief Justice Charles Evans Hughes's 1934 rejection of the notion that "the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them." n7 That understanding, as Professor Dorsen commented, has been and should remain common ground. n8
  • In the recent decade and more of bicentennial celebrations, Supreme Court Justice Thurgood Marshall reminded us that while the Constitution's endurance is indeed something to celebrate, the framers had a distinctly limited vision of those who counted among "We the People." n9 Qualified voters when the nation was new bore more than a passing resemblance to the framers: the franchise was confined to property-owning adult white males, people free from dependence on others, and therefore considered trustworthy citizens, not susceptible to influence or control by masters, overlords, or supervisors. n10 In 1787, only five of the thirteen states had abolished slavery, women did not count as part of the franchise-holding, politically active community in any state, and wealth qualifications severely limited voter eligibility even among white males.

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12 Dec 09

Copyright (c) 1997 Hofstra Law Review\nWinter 1997\n26 Hofstra L. Rev. 263
"Constitutional Adjudication in the United States as a Means of Advancing the Equal Stature of Men and Women under the Law"
By Ruth Bader Ginsburg
LexisNexis® Academic: Document

  • As Constitution readers know, the word "equal" or "equality" does not even appear in the body of the U.S. Constitution or in the first ten amendments, ratified in 1791, the amendments composing the Bill of Rights. What explains the absence of any reference to equality in the original U.S. Constitution, despite the prominence of that idea in the contemporaneous (1789) French Declaration of the Rights of Man, which declared (in article 1): "Men are born free and remain free and equal in rights," and (in article 6) "Law must be the same for all, whether it protects or punishes." To compound the question, why did the eighteenth century U.S. Constitution fail to incorporate the 1776 Declaration of Independence, which declared in ringing tones:
  • Not until 1868, after the Civil War ended slavery, did the U.S. Constitution provide, as it has ever since, that no State "shall . . . deny to any person the equal protection of the laws." And women did not become part of the U.S. political community until 1920 when, by constitutional amendment, they gained the right to vote.
  • Thurgood Marshall, leader of the struggle in the courts for an end to odious racial classifications, said prior to his 1991 retirement as a Supreme Court Justice, that he did not celebrate what the Constitution was in the beginning (as originally framed, the Constitution protected the slave trade until 1808 (art. I, sec. 9) and it required the return of persons who had escaped from human bondage, a provision in force until the Civil War (art. IV, sec. 2)). Instead, Thurgood Marshall celebrated how our fundamental instrument of government had evolved over the span of two centuries. The "true miracle," he said, is the Constitution's "life nurtured through two turbulent centuries." n6

    I share that view, but I appreciate, too, that the equal dignity of individuals is part of the U.S. constitutional legacy, shaped by the original framers, in this vital sense. The founding fathers rebelled against the patriarchal power of kings and the idea that political authority may legitimately rest on birth status. Their culture held them back from fully perceiving or acting upon ideals of human equality in rights and opportunities, and of individual freedom to aspire and achieve. But they stated a commitment in the Declaration of Independence to equality and in the Declaration and Bill of Rights to individual liberty. Those commitments had growth potential.

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  • To Ginsburg, the Constitution evolves and should reflect changes in society; that going back to what was meant originally when they wrote, for instance, "We the People," makes little sense.

    "Who were 'We the People' in 1787? You would not be among 'We the People.' African Americans would not be among the people," Ginsburg tells Stahl.
  • Put less provocatively: Brown exemplifies not constitutional jurisprudence, but rather constitutional statesmanship of the highest order. As such, it was an exceptional act, reserved for a question that goes to the core of our national history and identity. It should not be regarded as a template for judicial action in less extraordinary circumstances. 

     Some judges with impeccable liberal credentials endorse this approach. In her Senate confirmation hearing, Ruth Bader Ginsburg told the judiciary committee that "we must always remember that we live in a democracy that can be destroyed if judges take it upon themselves to rule as Platonic guardians." 

  • She went on to criticize the Supreme Court's decision in Roe v. Wade on the grounds that it pre-empted normal, ongoing legislative action. Without a national ruling, she said, "the people would have expressed themselves in an enduring way on this question" through state-by-state laws. She noted that Roe had mobilized the opponents of abortion rights in a way that ordinary legislative processes did not. And in a notable lecture at New York University just months before her nomination to the court, she offered a general thesis that liberal legal activists would do well to ponder. Changes at a measured, deliberate pace, she said, "seem to be right, in the main, for constitutional as well as common-law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable."

in list: We from Georgia

  • approximately 25,000 ethnic Georgians who have been unable to go back to their homes in South Ossetia.
  • , but the actions of Ossetian militias, who systematically looted, torched and in some cases bulldozed most ethnic Georgian villages, were particularly egregious. The Parliamentary Assembly of the Council of Europe (PACE) called those abuses “ethnic cleansing” Human Rights Watch cited ample evidence to label them “crimes against humanity” and “war crimes”.
  • In violation of its 7-8 September agreement with the EU, it has prevented the Organisation for Security and Cooperation in Europe (OSCE) from continuing pre-war activities in South Ossetia, including monitoring and implementation of a rehabilitation and reconstruction program. It justifies its positions by saying “new realities” prevail, because it recognised the August independence declarations of South Ossetia and Abkhazia and concluded bilateral security agreements.

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in list: We from Georgia

  • Moscow’s initial moves into South Ossetia as large-scale violence broke out there on 7-8 August were in part a response to a disastrous miscalculation by a Georgian leadership that was impatient with gradual confidence building and a Russian-dominated negotiations process.
  • But Russia’s disproportionate counter-attack, with movement of large forces into Abkhazia and deep into Georgia, accompanied by the widespread destruction of economic infrastructure, damage to the economy and disruption of communications and movement between different regions of the country, constitutes a dramatic shift in Russian-Western relations. It has undermined regional stability and security; threatened energy corridors that are vital for Europe; made claims with respect to ethnic Russians and other minorities that could be used to destabilise other parts of the former Soviet Union, with Ukraine a potential target; and shown disregard for international law.
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