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

08 Jul

of killing the civilian as collateral damage during a lawful attack against a military objective. In that scenario, does the civilian have the right of self-defense? In the criminal law we usually view the right of self-defense as only applicable against unlawful attacks, but in this case the attacking soldier’s original assault is lawful under LOAC as long as the anticipated collateral damage is not disproportionate to the value of the military objective. If the envisioned collateral damage is disproportionate, then the attack is unlawful. So, in that case, the...
08.07.14 | |

19 Mar

...to convince you to use arguments instead of trying to identify the person behind the arguments. Considering this tendency, It really doesn't seem like you have a background in law at all? The 'reasonable person standard' should be applied carefully in areas such as tort and criminal law, but when it comes to politically sensitive issues we should aim at addressing the real problems, the content of the research. You should not assume that every politically or morally sensitive topic is within the area of criminal/tort law, right? By the...
19.03.17 | |

01 Jul

...truism that there are always groups who can be shown to benefited from an occupation by a foreign power. Mr. Lozowick suggests that because the occupations of the Sudetenland, Austria and parts of Czeckoslovakia were carried out with little or no violence, they do not qualify as "Invasions". This conveniently overlooks the fact that plenty of Nazi violence was both threatened and conveniently displayed as being readily available should the subjects of Hitlers attentions not acquiesce to his unwelcome demands. The fact that shots were not fired is immaterial. The...
01.07.10 | |

03 Sep

...(and thus the blockade of Gaza is unlawful). U.N.‘s Palmer Committee Report on the Mavi Marmara incident (and note that the U.N. is not exactly the most sympathetic forum for Israel): “The Panel considers the [Hamas-Israel] conflict should be treated as an international one for the purposes of the law of blockade” (and thus the blockade is lawful). Heller: “I have questioned the legality of the blockade before, leading two readers to claim that the Palmer Committee’s report contradicts my analysis of the situation. In fact, the opposite is true.”...
03.09.11 | |

20 Oct

acts of hostilities may comply with the laws of war, but CIA operatives are not entitled to combatant immunity, or protection from punishment, for their acts of violence under the domestic law of the foreign state in which those acts of violence occur (similar to the Military Commissions Act's "murder in violation of the law of war" offense). Jordan essentially makes a "functional immunity" argument. He is effectively arguing that government agents participating in self-defense operations below the armed conflict threshold have functional immunity as government agents and do not...
20.10.11 | |

05 Aug

Howard Gilbert The Hague Agreements and the Fourth Geneva Convention requires a military force when occupying territory to protect the civilian population not only from soldiers, but also from chaos and lawlessness. Article 64 requires the military to initially enforce existing local law, but it can be replaced with new regulations to protect the security of the occupation army provided that those new laws are publicized before they are applied. Unfortunately, IHL creates a set of impossible requirements. Laws must be enforce to prevent murder, rape, robbery, arson, and the...
05.08.08 | |

21 Jan

...facto enactments which is found in Article I and makes no exception for non-Article III courts. The second key point to be made is that where military commissions and other equivalent tribunals have validly exercised jurisdiction over non-law of war offenses, they have done so on a territorial basis. That is to say, they have been serving as domestic law courts under authority of occupation law in foreign territory, or more controversially, martial law courts in the nation's own territory. The use of commissions as martial law courts is logically...
21.01.11 | |

06 Apr

Diplomatic Gunboat The JAGs pay attention to the legalisms, but they will be satisfied by the upcoming agreement with Iraq as keeping the U.S. forces in a definable status under international law. The domestic issue is too political for the military to get involved (no one wants a precedent of the military threatening to disobey the civilian commander-in-chief over a debatable War Powers dispute). You are right that this subject has no traction with the domestic press, public, or politicians. Congressional failure to act will have no effect, and Congress...
06.04.08 | |

10 Jul

el roam Thanks for the post Kevin. When the legislator , prescribe the words : " might reasonably be doubted on any ground …." It does imply a substantial test, and not prima facie one. The exposure or occupation per se , of an official with material , doesn't disqualify him at once . it does depend also upon the level and quality of the exposure , and above all : The Formation of strong subjectivity , due to such occupation and exposure , so : The mind of the...
10.07.15 | |

19 May

This is very disturbing news. As reported here, “the Iranian parliament, called the Islamic Majlis, passed a law this week setting a dress code for all Iranians, requiring them to wear almost identical “standard Islamic garments.” The law, which must still be approved by Iran’s “Supreme Guide” Ali Khamenehi before being put into effect, also establishes special insignia to be worn by non-Muslims. Iran’s roughly 25,000 Jews would have to sew a yellow strip of cloth on the front of their clothes, while Christians would wear red badges and Zoroastrians...
19.05.06 | |

14 Apr

cannot try the commanding officer who ordered a spy to cross lines, but you can try one who ordered prisoners shot). Violations of international law may include things that are not related to laws of war. For example, on 9/11 a unit of al Qaeda hijacked four jet aircraft. They violated international laws concerning air piracy. Pirates traditionally are tried and hung by military commissions, but they are not regarded as combatants entitled to treatment under "laws of war". Military commissons can try enemy prisoners who come within their jurisdiction...
14.04.07 | |

17 Apr

...missed this if it was dealt with before, but my question is: what do you suggest Hamas does in the same respect? In Goldstone's recantation, he also recognized that Hamas' long litany of war crimes had not received enough attention. Ali How about the IDF leave the Palestinian territories all together and end Israel’s occupation enterprise. This would be the best solution. Making efforts that occupation forces kill and murder the occupied in accordance with international laws, and with good media relations is just masking the ugly face of occupation....
17.04.11 | |