Search: Symposium on the Functional Approach to the Law of Occupation

28 Jun Rebranding Revisionism

...insofar as the approach sees the courts as agents of the domestic legal system, where “internationalists” see them as advancing the international order, as part of the global community of courts. I take the point, but the problem here is that everyone ultimately conceives themselves to be constitutionalist — in the sense of maintaining positions that are consistent with the Constitution —, even those who see federal courts as an entry point for the incorporation of international law. I don’t think the discursive high ground will be so easily captured....

30 Aug NYT’s Kristof: Obama’s Sudan Policy is a Failure

...The question though is, what exactly is the flaw in the Obama policy? Is it not being tough enough on Sudan? Or is it being too tough? Kristof can’t seem to decide. His complaint seems to be that Obama is unengaged. (This seems to be a common complaint about Obama, and I think it is unfair. I am not an Obama supporter, but he does have a lot on this plate right now). In any event, I think we can all agree that the goal here is to prevent the...

11 Jul Goldsmith and Katyal Propose a “National Security Court”

as organized crime or war crimes, so why not terrorism? The second set of issues relates to the differences in procedural and substantive law between these specialized courts and regular civilian courts. There would again be little or no problems under human rights law to have bench trials instead of jury trials, to limit the hearsay rule or the exclusionary rule, as long as sufficient fair-trial guarantees exist. But when it comes to detention and to my knowledge of international and European case-law, a regime of preventative detention, even if...

08 Mar Samantar Asks for Supreme Court Review Again

so. Status-based immunity. Under international law, status-based immunity covers the current-holder of particular offices, generally limited to the so-called troika of head of state, head of government, and minister of foreign affairs. Conduct-based immunity. Under international law, conduct-based immunity covers officials not entitled to status-based immunity and to all former officials. (2) What?—i.e. what acts are covered by the particular immunity at issue? State immunity. Under international law, state immunity covers public acts (acta jure imperii) but not private acts (acta jure gestionis). Status-based immunity. Under international law, status-based immunity...

08 Jan Profiling International Child Abduction Suspects

...still have his Georgia H.O.P.E. scholarship if the United States doesn't successfully have him returned. There are some dishonest people in the US Office of Children's Issues who should be fired for their egregious abuse of power, efforts to obstruct law enforcement, and . . .. I would love to be interviewed regarding this matter and to provide documentation on the Sweeney-Villa: Abduction in Fiuggi Case. There is no excuse for creating a Fake Hague and for telling law enforcement not to follow the constitutional law of the land. Nor...

22 May A Word on Maqaleh

...who have NEVER been afforded the protections or rights of Enemy Prisoners of War under the law of armed conflict, OR the right to contest their U.S. military-assigned status, who are being treated by the American judiciary as LEGITIMATELY-defined POWs or non-POW detainees with a lawfully-assigned status, despite their never having been able to dispute it in front of a "competent tribunal," as clearly required by international law. Even the belatedly-ongoing habeas hearings in the D.C. District are ignoring the violations of the law represented by the absence of Article...

23 Jan A Response from the Human Rights Community

receive. That can’t plausibly be an outcome we seek. Perhaps most troubling in this line of argument, Mr. Bellinger asserts that the bargain the Geneva Conventions strike may be summarized as follows: “Ignore the laws of war, and you cannot seek the status given to lawful combatants.” Because the Taliban violated the law of war, they are not entitled to the protection of the law of war. This is something like a circular argument. The Taliban no doubt committed war crimes; accordingly they should be prosecuted for these violations under...

11 Mar The Relationship Between the VCCR and Miranda

...consulate simply because I had the presence of mind to hire a lawyer and refuse to make a statement to the police. And if incarcerated, I would want them to make their statutorily required prison visits to me as well! John Corbett Peggy, In this case, it appears that the defendant chose not to hire an attorney. Given that fact, the question then seems to become whether the defendant's failure to demand an attorney can be seen as the functional equivalent of a waiver of his/her right to contact and...