Search: self-defense
01 Apr Justice in Extreme Cases Symposium: The Harms of the Derelict Commander
[Saira Mohamed is Professor of Law at the UC Berkeley School of Law.] Darryl Robinson’s Justice in Extreme Cases: Criminal Law Theory Meets International Criminal Law offers a detailed and convincing argument for a mutually beneficial relationship between international criminal law and criminal law theory: just as criminal law theory can clarify and improve international criminal law, international criminal law can clarify and improve criminal law theory. Based in part on earlier published work, the book offers much to dig into, from a defense of deontic reasoning in international criminal...31 Dec The NDAA: The Good, the Bad, and the Laws of War–Part I
By Marty Lederman and Steve Vladeck* Editorial pages and blogs have been overrun in the past couple of weeks with analyses and speculation about the detainee provisions in the National Defense Authorization Act, which the President has just signed into law. One of the major disputes concerns whether and how the NDAA might alter the status quo. In this post, we’ll try to synthesize the competing views offered by David Cole and Raha Wala, who remain quite critical of the provisions because of the changes they possibly presage, with those...10 Apr If Only the Gitmo Detainees Could Hold a Tea Party (Updated)
...and have the other side drop useful evidence in your lap, as might happen in a criminal case. In the cited article, the exculpatory evidence was acquired by a defense attorney in a previous criminal case that was supposed to be presented to a Military Commission. That was a criminal case, and the government fulfilled its obligation to the defense. The judge may order the government to turn over to the petitioner information that might prove favorable to that side. That might be similar to Brady material, but it would...15 Jun Four Russian Soldiers Convicted of Killing Chechen Civilians
...tribunals, Article 42 of the new Russian Criminal Code does not limit the defense of superior orders to orders that were not “manifestly unlawful” — orders whose illegality a reasonable soldier would have recognized. On the contrary, a soldier is entitled to the defense under Article 42 as long as he did not actually know that the order was unlawful, a much higher standard: 1. There shall not be deemed to be a crime the causing of harm to the interests protected by the criminal law by a person acting...15 Dec Congress Authorizes U.S. Offensive CyberAttacks
Ah, the 2012 National Defense Authorization Act… has any defense spending bill had so much defense-related legal policy embedded in it? In addition to all the very important stuff about military detentions, it turns out the NDAA also authorizes the U.S. military to engage in offensive cyber-attacks (h/t Gary Schmitt). Congress affirms that the Department of Defense has the capability, and upon direction by the President may conduct offensive operations in cyberspace to defend our Nation, allies and interests. The act further clarifies that such actions should be subject to...21 Mar The Broken Windows Theory of Corruption
Kudos to Daniel Chow and Mike Koehler for a wonderful conference last week at Ohio State Law School addressing the FCPA at thirty-five. It’s always a risk to hold a conference that mingles hard-core practitioners with soft and fuzzy academics, but this one seemed to work. The defense and prosecution side of the FCPA bar battled it out with competing panels addressing the merits and demerits of FCPA prosecutions. Charles Duross, the DOJ attorney in charge of FCPA prosecutions, gave a spirited defense of the Obama Administration’s robust enforcement campaign,...06 Sep Judge Sow to Testify for Charles Taylor? (Updated)
Taylor’s trial in May, Judge Sow started to speak and people seated in the public gallery heard a few words before the microphones went off. [snip] In their appeal document dated August 17, 2012, Taylor’s defense council said that there was a need to proffer other evidence in their appeal motion. “The defense intends to call as witness on appeal, former Special Court Justice El Hadji Malik Sow. He is expected to testify on his statement that there were “no deliberations” as is alleged in Ground of Appeal 36 of...02 Mar YJIL Online Symposium: Response to Matthew Waxman
...to substantive IHL norms. My intuition follows the domestic criminal law framework of recognizing some defenses to criminal liability, which may apply to all or some specific offenses, but are kept separately from the definition of these offenses. This separation operates to safeguard the integrity of the law, leaving room for forgiveness in the particular exceptional instance in which an otherwise-condemnable act may be warranted. Of course, from a realist perspective, the ex post necessity defense functions much like an ex ante authorization. I was especially intrigued by Professor Waxman’s...
30 Mar The Iranian School Strike: Excusable? A Violation? A War Crime?
...out. Second, there are indications that artificial intelligence (AI) played a role in the designation of the school as a military objective. If so, what does that tell us about the wisdom of outsourcing life and death decisions to a machine? That issue is at the heart of the Trump administration’s present dispute with Anthropic and its AI chatbot, Claude. It may be argued that machines are less fallible than humans. There is evidence, for example, that humans cause more accidents, per capita, than do self-driving cars. This analogy is,...