AIDP Blog

President Bush stated myth as fact when he called 9/11 an “unprecedented attack on our soil” (Nov. 8, 2006). This myth is that the mainland has never been attacked before. The greatest irony is that the term “patriot” is used in enunciating this myth while the myth obliterates the very attacks on American soil that were suffered and which forged the enduring values of our country.
These tribulations on our soil set the stage for the drafting of our Constitution and Bill of Rights. American Patriots faced overwhelming odds in attacks from the 50,000 British troops sent to put down the establishment of a new nation. As well, 30,000 Hessians, Scots Highlanders and other hired mercenaries poured into America by sea and through Canada in 1775-76. When, late in the Revolutionary War, the Americans were being routed from New York, the British burned and the Hessians ransacked dwellings. One British soldier wrote that the Hessians used bayonets to “put all to death that fell into their hands.” In that one battle, more than 1,000 patriots died.
Early on, the Americans lost the historic battle at Bunker Hill and 14,000 British troops and 5000 British sympathizers occupied Boston for 10 months. This was followed by attacks, often successful for the British, along the Eastern Seaboard, including Falmouth, Long Island, Lake Champlain, Newport, Princeton, and Danbury. Cities were burned and occupied by the enemy.
Just before the beginning of the Revolutionary War, John Adams, the future president, intervened on behalf of the young British soldiers arrested for the Boston Massacre. Adams believed that human rights demanded fair treatment of prisoners, a trial, and counsel, even for the enemy. He insisted on serving free as their counsel.
Habeas corpus, a right guaranteed in the Constitution is essentially eliminated in the 2006 Military Commissions Act, which sets up what has been described as a “kangaroo court” for non-citizens at Guantanamo. The newly reintroduced Restoration of Habeas Corpus Bill sponsored by Sens. Patrick Leahy, D-Vt., and chairman of the Senate Judiciary Committee, and Arlen Specter, R-Pa. should be passed. This bill will restore judicial procedure for prisoners caught in indefinite summary detention. [Excerpted from Koenig in Lansing State Journal, 9/23/07.]

Iranian President Ahmadinejad’s recent visit to Columbia University caused quite a bit of controversy. Although his responses to questions about human rights, the absence of homosexuals in the Islamic Republic, and the need to revisit the research behind the holocaust were somewhat amusing and perhaps revealing; the questions he did not answer are particularly noteworthy.

Specifically, how does he reconcile a claim to peacefulness and also want to wipe Israel off the map? Why doesn’t he fully cooperate with the UN with respect to his nuclear facilities? And why does Iran continue to support armed groups as a cornerstone of its foreign policy?

Regarding the latter, while a great deal of attention is given to Iranian involvement in the Iraq conflict, the comprehensiveness of Iran’s support to armed groups worldwide is often overlooked. In a recently posted article, “Veiled Impunity: Iran’s Use of Non-State Armed Groups,” Keith Petty examines the legal underpinnings of Iran’s support of armed groups and the legitimate threat this policy poses (full disclosure, I’ve worked with Keith on counterterrorism issues, he’s a bright legal scholar, an Iraq veteran and previously worked on international criminal law issues at the ICTY so he knows his stuff). Keith’s article focuses primarily on Iran’s backing of Hezbollah in Lebanon, Hamas in the Palestinian Territories, and Mahdi’s Army in Iraq, and the threat these groups pose to their host States. Keith writes:

“Surprisingly, Iran’s use of non-state armed groups as an extension of its foreign policy has not met significant deterrence. Many still believe that aggression can only be committed when a State openly attacks another State with military force, a misperception of jus ad bellum law. This paper suggests a closer analysis of what constitutes unlawful aggression under international law. Specifically, the issue is whether State support of non-state armed groups as a means of threatening the territorial integrity or political independence of another State constitutes unlawful aggression.”

International law supports defining Iran’s support to these groups as unlawful aggression. Mr. Petty states that there may be “an ‘effective control’ or ‘acknowledgement’ basis for imputing [the armed groups’] actions to Iran as required by the Nicaragua and Hostage cases [of the ICJ]. Further support is found in General Assembly Resolution 3314, which classifies the “sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, as an act of unlawful aggression.”

In spite of these standards, Iran’s support likely will not fit classic understandings of unlawful aggression, particularly where that finding would lead to the authorization of the use of force. He goes on to recommend timely deterrence options short of armed force, and proposes a mixed-bag of policy proscriptions.

Keith sums up his multi-faceted approach stating: “It is uncertain whether Iran’s support of non-state armed groups is tantamount to aggression vis-à-vis the host States [of Hezbollah, Hamas, and Mahdi’s Army]. The need to deter Iran’s conduct, however, is clear. While coercive measures have been considered, these are unlikely to be effective. For one, the use of force seems disproportionate to Iran’s more sophisticated, clandestine operations within the target States. As mentioned above, outright armed force has not been Iran’s policy. Rather, an equally sophisticated and multi-faceted approach is required to deter Iran’s foreign policy objectives.”

Such a timely piece is definitely worth the download and is sure to be cited by many. Full text available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1013415

To Prevent and to Punish

AN INTERNATIONAL CONFERENCE
IN COMMEMORATION OF THE 60th ANNIVERSARY OF THE NEGOTIATION OF THE GENOCIDE CONVENTION

Friday, September 28, 2007
8:30 a.m. – 6:00 p.m. * Moot Courtroom (A59)
Case Western Reserve University School of Law
11075 East Boulevard, Cleveland, Ohio 44106

* The symposium will be webcast live and available after for viewing on demand at http://law.case.edu/lectures.

Sixty years ago, on June 11, 1947, Raphael Lemkin, working with the U.N. Secretariat legal staff, completed the first draft of the Genocide Convention, launching the intense negotiations that would conclude in the U.N.’s adoption of the Convention in December 1948. Today, the Genocide Convention has 137 parties, and after years of dormancy, the Convention has become an important legal tool in the international effort to end impunity for the worst crime known to humankind. The past year alone has witnessed important cases based on the Genocide Convention before the International Court of Justice, the ad hoc international criminal tribunals, and the domestic courts of several countries. To commemorate the sixtieth anniversary of the negotiation of the Genocide Convention, the Frederick K. Cox International Law Center at Case Western Reserve University is hosting a major international symposium featuring two-dozen of the world’s leading academic experts, high level government officials, and most distinguished jurists and practitioners in the field.   This symposium is serving as the annual meeting of the International Association of Penal Law (American National Section).  Articles generated by the speakers will be published in a special double issue of the Case Western Reserve Journal of International Law, one of the world’s oldest and most prestigious international law publications.

SCHEDULE
8:00 a.m. – 8:30 a.m.  Registration & Coffee

8:30 a.m. – 8:45 a.m. President’s Welcome
Barbara R. Snyder, President, Case Western Reserve University
Introduction
Prof. Michael Scharf, Cox Center Director, Case Western Reserve University
Presentation of AIDP Book and Article of the Year Award
Prof. Michael Kelly, Creighton University 

8:45 a.m. – 9:30 a.m.  “A History of Genocide”
Introduction: Prof. Kenneth Ledford, Case Western Reserve University School of Law
Juan E. Méndez, former U.N. Special Adviser on the Prevention of Genocide; President, International Center for Transitional Justice

9:30 a.m. – 9:45 a.m.  Coffee Break

9:45 a.m. – 11:00 a.m.  “The Origins of the Genocide Convention: From Nuremberg to Lake Success”
Chair: Don Ferencz, Director of the Planethood Foundation
Ben Ferencz, former Nuremberg Prosecutor
Prof. Henry King, former Nuremberg Prosecutor
Prof. William Schabas, National University of Ireland, Irish Centre for Human Rights, author of Genocide: The Crime of Crimes

11:00 a.m. – 11:15 a.m.  Coffee Break

11:15 a.m. – 12:15 p.m.  “Prevention: A Cross-Fire Exchange on Use of Force to stop Genocide”
Chair: Prof. Melissa Waters, Vanderbilt University School of Law (Visiting)
Roy Gutman, Pulitzer Prize winning journalist and Foreign Editor, McClatchy Newspapers
Prof. Michael Newton, Vanderbilt University School of Law
Prof. David Scheffer, Northwestern University School of Law, former U.S. Ambassador at Large for War Crimes Issues
Prof. Paul Williams, American University Washington College of Law

12:15 p.m. – 12:30 p.m.  Pick up Complimentary Lunch12:30 p.m. – 1:30 p.m. Luncheon Speaker
Introduction: Dean Gary Simson, Case Western Reserve University School of Law
Speaker: Robert Petit, Co-Prosecutor of the Extraordinary Chambers in the Courts of Cambodia

1:30 p.m. -1:45 p.m.  Coffee Break

1:45 p.m. – 3:00 p.m.  “Prosecuting Genocide”
Chair: Prof. William Burke-White, University of Pennsylvania School of Law
Eric Blinderman, former Deputy Director of the U.S. Embassy Regime Crimes Liaison Office in Baghdad
Prof. David Crane, former Prosecutor of the Special Court for Sierra Leone
Christine Chung, appointed by the International Criminal Court to prosecute its first case
Hon. Ra’ad Juhi, former Chief Investigative Judge, Iraqi High Tribunal
Robert Petit, Co-Prosecutor of the Extraordinary Chambers in the Courts of Cambodia

3:00 p.m. – 3:15 p.m.  Coffee Break

3:15 p.m. – 4:30 p.m.  “Defending Individuals Accused of Genocide”
Chair: Mark Ellis, Executive Director of the International Bar Association
Stuart Alford, Queen’s Counsel
Nicholas Stewart, Defense Counsel for Momcilo Krajišnik
Prof. Elies van Sliedregt, Vrije University, Amsterdam
Mischa Wladimiroff, Defense Counsel for Slobodan Milosevic

4:30 p.m. – 4:45 p.m.  Coffee Break

4:45 p.m. – 5:55 p.m.  “Judging Genocide: A Roundtable Discussion of the International Court of Justice and Genocide”
Chair: Prof. Christopher Joyner, Georgetown University
Prof. Mark Drumbl, Washington and Lee University College of Law
Asst. Dean Michael Peil, Washington University School of Law
Prof. John Quigley, Ohio State University School of Law, Counsel in the Bosnia Genocide Case before the ICJ
Prof. Leila Sadat, Washington University School of Law

5:55 p.m. Closing Remarks
Prof. Michael Scharf

6:00 p.m. – 6:30 p.m.  Reception in the RotundaSymposium Registration – The symposium is free and open to the public, with complimentary lunch for all registered participants. To register, FAX name & full contact information to (216) 368-1430. Include symposium name/date of event on the fax or call (216) 368-6619. Registration deadline: September 14, 2007. Space is limited.

CLE Registration - 7.25 hours CLE credit available to lawyers who attend
(Supreme Court of Ohio does not grant credit for a lunch speaker; that session isn’t counted in the total)
To obtain CLE credit hours, send a check for $200.00, payable to Case Western Reserve University, to “War Crimes Symposium,” Case Western Reserve University School of Law, 11075 East Blvd., Cleveland, OH 44106. Registration deadline: September 14, 2007. Space is limited.

Publication - The symposium will be published in Case Western Reserve Journal of International Law Vol. 40.  Visit the journal website for information about single issue purchase and subscriptions.

Accommodations - For your reference, the nearest hotels are: Glidden House Inn (216) 231-8900 and Intercontinental Suites Hotel & Conference Center (216) 707-4300. There is no official hotel for the symposium, however, visitor information and other area hotel listings can be found at www.cleveland.com/visit/

View comments to this article cross-posted on The Volokh Conspiracy Blog.

Comments page one

Comments page two

On the eve of the six-year anniversary of Sept. 11 and in the fourth year of the war in Iraq, what have we learned about fighting terrorism? Are we wisely spending our tax dollars? Is there “rhyme or reason” with respect to America’s counter-terrorism policy? Is there a policy?

Unfortunately, one of the results of early presidential primaries is that the candidates – many of them with legislative responsibilities – will be spending their time campaigning rather than legislating and overseeing administration policies.

Furthermore, the early primaries mean an enormously long time before the general election, which promises us vapid 20-second sound bites rather than genuine debate and discourse.

However, since the bad guys are out there, we must prepare a tough, substantive check list of questions to ask the presidential candidates in the limited time we have with them.
In answering the broad questions above, we must demand specific answers. The devil is always in the details. We are well beyond President Bush’s rightly maligned phrases: “We are winning the war on terrorism,” “Bring ‘em on” and “Mission Accomplished.” So where are we?

The answer is suggested by something I recently witnessed while standing in an airport security line. A 3-year-old boy traveling with his mother was subjected to the “blower.” The blower – an unpleasant experience for an adult – detects material required for making explosives. What does subjecting a 3-year-old to the blower unattended by a parent (his mother went through the blower previously) tell me?

It tells me that we have yet to begin risk assessment and analysis, identifying legitimate threats has not been begun and sophisticated cost-benefit analysis of counter-terrorism is apparently in its infancy. How dangerous is this? Very.

As long as 3-year-old boys are made to go through blowers at airport security lines, we clearly are not focusing our limited resources on genuine threats. Rather than develop sophisticated prototyping models, we only hear “you have been selected for a random search.”

Effective counter-terrorism can be based neither on 20-second sound bites nor subjecting young children to the blower. Minimizing the terrorist threat requires the following: dramatically improving our intelligence gathering and analysis ability (requires foreign language skills), understanding terrorist motivations and goals, developing terrorist prototypes (not ethnic-based profiling, which is both unconstitutional and ineffective) and developing sophisticated risk-assessment models facilitating cost-benefit analysis of counter-terrorism measures.

Until we develop these four measures, we will continue to subject children to blowers at the nation’s airports. Were Osama bin Laden to witness what I observed, he surely would have a good laugh. We need to wipe that smile off his face and get serious – and smart – with respect to counter-terrorism.

We have little, if any, time to waste; the dangers and threats of six years ago have been replaced by far more sophisticated terrorism. Be it cyber-terrorism or bio-terrorism, the terrorist imagination literally knows no bounds.

The determination and motivation to sacrifice for a cause drives terrorists the world over. Their motivation is matched only by their seriousness and sophistication. Measure their sophistication with ours and worry lines need to appear on our collective faces.

While politicians offer vapid generalities, the bad guys are planning the next attacks. It is not “if” but “when.” The time to address the four measures was yesterday; we can’t wait until tomorrow. Let us resolve to address them, honestly and intelligently, today. We can’t afford the inanity of subjecting 3-year-old boys to blowers at the nation’s airports.

Published in the Salt Lake Tribune, “Six years later: What have we learned?”
http://www.sltrib.com/opinion/ci_6838464

Cross posted from the National Security Advisors Blog.