Volume 47 Articles

Volume 47, Number 3 (Spring 2012)

Articles

China’s Evidentiary and Procedural Reforms, the Federal Rules of Evidence, and the Harmonization of Civil and Common Law
John J. Capowski
Evaluating Citizen Petition Procedures: Lessons from an Analysis of the NAFTA Environmental Commission
John H. Knox & David L. Markell
South Sudan and the International Legal Framework Governing the Emergence and Delimitation of New States
Jane Vidmar
Insuring Maritime Trade with the Enemy in the Napoleonic Era
Su Jin Kim & James Oldham

Notes

Battling Cartels in the New Era of Chinese Antitrust Enforcement
Andrew W. Eichner
Cyber War Inc.: the Law of War Implications of the Private Sector’s Role in Cyber Conflict
Hannah Lobel

Volume 47, Number 2 (Spring 2012)

Articles

Symposium: The 2009 Air and Missile Warfare Manual: A Critical Analysis

Introduction
Claude Bruderlein
Law of War Manuals and Warfighting: A Perspective
Charles J. Dunlap, Jr.
A Critical Appraisal of the Air and Missile Warfare Manual
Jordan J. Paust
Drones and the Boundaries of the Battlefield
Michael W. Lewis
Determining a Legitimate Target: The Dilemma of the Decision-Maker
Amos N. Guiora
The Law of Operational Targeting: Viewing the LOAC Through an Operational Lens
Geoffrey S. Corn & Lieutenant Colonel Gary P. Corn

Rejoinder

Enemy Status and Military Detention: Neutrality Law and Non-International Armed Conflict, Municipal Neutrality, the U.N. Charter, and Hostile Intent
Karl S. Chang

Notes

Can the 1959 Hague Convention Apply to Non-State Actors?: A Study of Iraq and Libya
Zoë Howe
President-Prime Minister Relations, Party Systems, and Democratic Stability in Semipresidential Regimes: Comparing the French and Russian Models
Kimberly A. McQuire

Volume 47, Number 1 (Fall 2011)

Articles

Enemy Status and Military Detention in the War Against Al-Qaeda
Karl S. Chang
Abstract: This Article presents “enemy” as a concept for defining the legal limits on military detention in the United States’ campaign against al-Qaeda. Existing frameworks have sought to define the government’s military detention authority in terms of “combatant,” a concept drawn from jus in bello—international law governing how enemies fight one another. Although helpful for informing who may be detained under the government’s war powers, “combatant” is not the correct legal concept for defining the limits of that authority. Instead, the correct legal concept is “enemy,” a concept that has been defined in the international law of neutrality—a species of jus ad bellum. Unlike jus in bello, which specifies the relations between opposing belligerents, neutrality law specifies the relations between belligerents and neutrals—those outside the conflict. Neutrality law explains when non-hostile persons, organizations, and states forfeit their neutral immunity and acquire enemy status. Neutrality law’s role in defining who belligerents may treat as enemies in war is important not only as a matter of international law, but also domestic law. Interpreting the war powers conferred by Congress to be informed by the framework of duties and immunities in neutrality law balances, on the one hand, giving the President the full range of authority necessary to wage war successfully and, on the other, ensuring that the President uses the powers Congress grants only for the war that Congress has authorized. Lastly, this Article uses neutrality law’s framework of duties and immunities to describe who may be detained as an enemy in the ongoing war against al-Qaeda.
Untangling Belligerency from Neutrality in the Conflict with Al-Qaeda
Rebecca Ingber
Abstract: The legal architecture for the conflict with al-Qaeda and the Taliban has been the subject of extensive scrutiny through two presidential administrations, a decade of litigation, and multiple acts of Congress. All three branches of the federal government have to date defined the framework as one of armed conflict, and have looked to the laws of war as support for expansive authorities concerning the use of force, including detention. Yet the laws of war do not merely contemplate broad state authority; they also provide critical and non-derogable constraints on that authority. Nevertheless considerable debate rages on with respect to whether and to what extent the international laws of war inform and constrain the U.S. government’s conduct in this conflict.This Article provides a survey of the legal architecture currently governing the conflict with al-Qaeda and the Taliban, and—considering that operating framework—presents a defense of critical law of war constraints on state action. It responds to Karl Chang’s Article, “Enemy Status and Military Detention in the War against al Qaeda,” which proposes a broad legal theory of detention based on the law of neutrality and divorced from core protective law of war constraints. In responding to this and other calls for broad authority, this Article supports the complex though crucial practice of applying jus in bello principles, such as the principle of distinction between belligerents and civilians, to modern armed conflicts such as that with al-Qaeda and the Taliban. To the extent the U.S. government and other states rely on an armed conflict paradigm to support broad authorities, they must likewise constrain themselves in accordance with the international legal regimes governing such conflicts.
The Law of Neutrality Does Not Apply to the Conflict with Al-Qaeda, and It Is a Good Thing, Too: A Response to Chang
Kevin Jon Heller
Abstract: In his Article “Enemy Status and Military Detention in the War Against Al-Qaeda,” Karl Chang addresses one of the most critical problems in contemporary international law: the scope of a state’s detention authority in non-international armed conflict (NIAC). Some have argued that detention in NIAC is governed solely by the rules of international humanitarian law (IHL) applicable in international armed conflict (IAC), particularly the Fourth Geneva Convention’s provisions concerning the detention of civilians. Others claim that because conventional IHL does not regulate detention in NIAC, the scope of detention must be determined solely by reference to national law and international human rights law (IHRL). And still others have taken the position that IHL, national law, and IHRL are all relevant to determining the scope of detention in NIAC.
Chang, by contrast, looks to a completely different source of law: the law of neutrality. He rejects the idea that the scope of detention in NIAC is determined by the distinction between “combatants” and “civilians,” which is essential to all of the approaches mentioned above. Instead, he argues that “the legal limit on military detention is ‘enemy,’ a concept that has been defined in the law of neutrality.” Indeed, in his view, “The framework of duties and immunities in neutrality law gives an overarching international law framework for U.S. military operations against al-Qaeda. . . .”This is a unique thesis. De lege ferenda, the law as it ought to be, the Article makes an intriguing case for the relevance of neutrality law’s distinction between friend and enemy. But de lege lata, the law as it is, the Article is deeply problematic. Properly understood, the law of neutrality either does not apply to whatever NIAC exists between the United States and al-Qaeda or applies in a symmetrical manner that, if states took it seriously, would effectively cripple the United States’ counterterrorism efforts against al-Qaeda.
Reconciling Universal Jurisdiction with Equality Before the Law
Ariel Zemach
Abstract: This Article concerns the relationship between the doctrine of universal jurisdiction and the principle of equality before the law. While inequality before the law always presents a challenge to the legitimacy of a criminal justice system, it has an especially devastating effect on universal jurisdiction’s claim to legitimacy. At the same time, the exercise of universal jurisdiction lends itself to discrimination and arbitrariness far more readily than regular domestic prosecutions.This Article proposes a reform in the international law of universal jurisdiction that would ameliorate, as far as possible, the problem of inequality before the law in the exercise of universal jurisdiction. This reform introduces limitations on the liberty of states to “choose their battles” in the enforcement of international criminal law. The proposed reform assigns a pivotal role to the International Criminal Court (ICC). It sets forth a mechanism by which the ICC would designate particular states to exercise universal jurisdiction over crimes relating to a particular situation. Such designation would be a precondition for a state’s liberty to exercise universal jurisdiction. The legal regime advocated here would thus replace the existing norm of international law that allows any state to exercise universal jurisdiction over core international crimes. This Article demonstrates that the proposed designation mechanism would constitute, in and of itself, a substantial guarantee of equality before the law in the exercise of universal jurisdiction.This Article then proceeds to propose prosecutorial guidelines that, under the proposed reform, a state would be required to apply in its exercise of universal jurisdiction. Finally, it sets forth a mechanism that would allow the ICC Prosecutor to monitor the compatibility of a state’s exercise of universal jurisdiction with the principle of equality before the law. This international oversight mechanism is tailored with a view to minimizing, as far as possible, both sovereignty and economic costs for the state exercising universal jurisdiction.Far from limiting the reach of universal jurisdiction, the proposed reform would enhance the fight against impunity by diffusing current objections to the exercise of universal jurisdiction in absentia, thereby facilitating the assertion of such jurisdiction by states.

The ICC Prosecutor’s Missing Code of Conduct
Milan Markovic
Abstract: The intersection between legal ethics and international criminal law has largely been unexamined. This Article addresses the topic by focusing on certain controversial actions taken by the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC” or “Court”) in connection with the Lubanga and Al-Bashir cases.
Although the ICC has adopted codes of conduct for judges and defense counsel, the OTP has no specific ethics code. This is problematic because the ICC Statute imposes conflicting obligations on the ICC Prosecutor, and, as this Article will show, the Prosecutor has resolved his conflicting obligations in the Lubanga and Al-Bashir cases in ways that have undermined the ICC’s credibility.A code of conduct cannot eliminate prosecutorial discretion. Nor can it ensure that ICC prosecutors always will act ethically. Nevertheless, this Article argues that the approach of relying on Chambers to determine whether the Prosecutor has acted appropriately has delayed proceedings and provides insufficient guidance to the OTP. A preferable approach would be to provide prospective guidance to the OTP in managing its conflicting duties through a code of conduct. This Article also proposes specific rules that may mitigate some of the conflicts that already have arisen in the ICC’s first cases.

Note

Reforming Egypt’s Constitution: Hope for Egyptian Democracy?
James Feuille
Abstract: In this Note, I discuss the recent constitutional reforms passed in Egypt on March 19, 2011, which followed former President Hosni Mubarak’s resignation. I attempt to compare the reforms made in Egypt to constitutional reforms made in Benin, Mali, and other post-dictatorial African nations during the 1990s because of similarity in these countries’ constitutional structures. All of these countries, including Egypt, had dictatorial presidents in one-party parliamentary systems with socialist underpinnings. I recognize that Egypt’s Islamic social foundations will most likely have a dramatic effect on its constitution moving forward and discuss how to minimize those effects. However, I believe that by comparing how democracy has progressed in other post-dictatorial, socialist African nations, we may gain some understanding of how Egypt’s democracy should, and hopefully will, develop in the future.