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Volumn , Issue 153, 1996, Pages 1-92

Continuum crimes: Military jurisdiction over foreign nationals who commit international crimes

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EID: 0030337163     PISSN: 00264040     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article
Times cited : (10)

References (555)
  • 1
    • 84923720554 scopus 로고    scopus 로고
    • New King James
    • Ecclesiastes 8:11 (New King James).
    • Ecclesiastes , vol.8 , pp. 11
  • 2
    • 0041439984 scopus 로고
    • Nuremberg, Germany, Id.
    • 2 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 150 (Nuremberg, Germany, 1947) [hereinafter IMT] (quoting Justice Jackson's opening remarks at the Nuremberg Trials). Justice Jackson went on to note that, "[w]hile it is quite proper to employ the fiction of responsibility of a state or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such legalism become the basis of personal immunity. The [London] Charter recognizes that one who has committed criminal acts may not take refuge in superior order nor in the doctrine that his crimes were acts of states." Id.
    • (1947) Trial of the Major War Criminals before the International Military Tribunal , vol.2 , pp. 150
  • 3
    • 85039490943 scopus 로고
    • Somalia battle killed 12 Americans, wounded 78
    • Oct. 5
    • Keith B. Richburg, Somalia Battle Killed 12 Americans, Wounded 78, WASH. POST, Oct. 5, 1993, at A1. President Clinton made the first post-Vietnam awards of the Congressional Medal of Honor to the widows of two soldiers involved in this action. Amy Devroy, Medals of Honor Given to 2 Killed In Somalia, WASH. POST, May 23, 1994, at A6. Master Sergeant Gary Gordon and Sergeant First Class Randall Shughart gave their lives in the streets of Mogadishu from a sense of duty and loyalty to their comrades. For a stunning account of the battle and its effect on United States policy in Somalia, see Rick Atkinson, The Raid That Went Wrong: How an Elite U.S. Force Failed in Somalia, WASH. POST, Jan. 30, 1994, at A1; Rick Atkinson, Night of a Thousand Casualties: Battle Triggered U.S. Decision to Withdraw from Somalia, WASH. POST, Jan. 31, 1994, at A1.
    • (1993) Wash. Post
    • Richburg, K.B.1
  • 4
    • 26344471586 scopus 로고
    • Medals of honor given to 2 killed in Somalia
    • May 23
    • Keith B. Richburg, Somalia Battle Killed 12 Americans, Wounded 78, WASH. POST, Oct. 5, 1993, at A1. President Clinton made the first post-Vietnam awards of the Congressional Medal of Honor to the widows of two soldiers involved in this action. Amy Devroy, Medals of Honor Given to 2 Killed In Somalia, WASH. POST, May 23, 1994, at A6. Master Sergeant Gary Gordon and Sergeant First Class Randall Shughart gave their lives in the streets of Mogadishu from a sense of duty and loyalty to their comrades. For a stunning account of the battle and its effect on United States policy in Somalia, see Rick Atkinson, The Raid That Went Wrong: How an Elite U.S. Force Failed in Somalia, WASH. POST, Jan. 30, 1994, at A1; Rick Atkinson, Night of a Thousand Casualties: Battle Triggered U.S. Decision to Withdraw from Somalia, WASH. POST, Jan. 31, 1994, at A1.
    • (1994) Wash. Post
    • Devroy, A.1
  • 5
    • 0042942982 scopus 로고
    • The raid that went wrong: How an elite U.S. Force failed in Somalia
    • Jan. 30
    • Keith B. Richburg, Somalia Battle Killed 12 Americans, Wounded 78, WASH. POST, Oct. 5, 1993, at A1. President Clinton made the first post-Vietnam awards of the Congressional Medal of Honor to the widows of two soldiers involved in this action. Amy Devroy, Medals of Honor Given to 2 Killed In Somalia, WASH. POST, May 23, 1994, at A6. Master Sergeant Gary Gordon and Sergeant First Class Randall Shughart gave their lives in the streets of Mogadishu from a sense of duty and loyalty to their comrades. For a stunning account of the battle and its effect on United States policy in Somalia, see Rick Atkinson, The Raid That Went Wrong: How an Elite U.S. Force Failed in Somalia, WASH. POST, Jan. 30, 1994, at A1; Rick Atkinson, Night of a Thousand Casualties: Battle Triggered U.S. Decision to Withdraw from Somalia, WASH. POST, Jan. 31, 1994, at A1.
    • (1994) Wash. Post
    • Atkinson, R.1
  • 6
    • 0042942982 scopus 로고
    • Night of a thousand casualties: Battle triggered U.S. Decision to withdraw from Somalia
    • Jan. 31
    • Keith B. Richburg, Somalia Battle Killed 12 Americans, Wounded 78, WASH. POST, Oct. 5, 1993, at A1. President Clinton made the first post-Vietnam awards of the Congressional Medal of Honor to the widows of two soldiers involved in this action. Amy Devroy, Medals of Honor Given to 2 Killed In Somalia, WASH. POST, May 23, 1994, at A6. Master Sergeant Gary Gordon and Sergeant First Class Randall Shughart gave their lives in the streets of Mogadishu from a sense of duty and loyalty to their comrades. For a stunning account of the battle and its effect on United States policy in Somalia, see Rick Atkinson, The Raid That Went Wrong: How an Elite U.S. Force Failed in Somalia, WASH. POST, Jan. 30, 1994, at A1; Rick Atkinson, Night of a Thousand Casualties: Battle Triggered U.S. Decision to Withdraw from Somalia, WASH. POST, Jan. 31, 1994, at A1.
    • (1994) Wash. Post
    • Atkinson, R.1
  • 7
    • 84923720317 scopus 로고    scopus 로고
    • note
    • The term "laws of war" denotes a branch of public international law, and comprises a body of rules and principles observed by civilized nations for the regulation of matters inherent in, or incidental to, the conduct of a public war." Black's Law Dictionary, 1583 (6th ed. 1990). As used in this article, laws of war refer to that body of international law and custom that apply in the context of international armed conflicts. Army doctrine consistently refers to the "law of war" as applying "to cases of international armed conflict and to the forcible occupation of enemy territory." DEP'T OF ARMY, FIELD MANUAL 27-10, THE LAW OF LAND WARFARE, para. 9 (18 July 1956) (C1, 15 July 1976) [hereinafter FM 27-10]. The core body of the international law of war includes the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature Aug. 12, 1949, 75 U.N.T.S. 31, 6 U.S.T. 3114 (replacing previous Geneva Wounded and Sick Conventions of 22 August 1864, 6 July 1906, and 27 July 1929 by virtue of Article 59) [hereinafter Convention on Sick and Wounded]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, opened for signature Aug. 12, 1949, 75 U.N.T.S. 85, 6 U.S.T. 3217 (replacing Hague Convention No. X of 18 October 1907, 36 Stat. 2371) [hereinafter Convention on Sick and Wounded at Sea]; Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature Aug. 12, 1949, 75 U.N.T.S. 287, 6 U.S.T. 3316 (replacing the Geneva Convention Relative to the Protection of Prisoners of War of 27 July 1929, 47 Stat. 2021) [hereinafter Convention on Prisoners of War]; Geneva Convention Relative to the Protection of Civilians in Time of War, opened for signature Aug. 12, 1949, 75 U.N.T.S. 287, 6 U.S.T. 3516 [hereinafter Civilians Convention]. To a lesser extent, the supplemental protocols have evolved into customary international law. See Protocol I Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims Of International Armed Conflicts, opened for signature at Berne, 12 Dec. 1977, U.N. Doc. A/32/144 Annex I, reprinted in 16 I.L.M. 1391 (1977) [hereinafter Protocol I]; Protocol II Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of the Victims of Non-International Armed Conflicts, opened for signature at Berne, 12 Dec. 1977, U.N. Doc. A/32/144 Annex II, reprinted in 26 I.L.M. 561 (1987) [hereinafter Protocol II], reprinted in DEP'T OF ARMY, PAMPHLET 27-1-1, PROTOCOLS TO THE GENEVA CONVENTIONS OF 1949 (1979) [hereinafter DA PAM 27-1-1 PROTOCOLS].
  • 8
    • 84923721554 scopus 로고    scopus 로고
    • Ethnic conflict: The perils of military intervention
    • Spring 1995 [hereinafter Ethnic Conflict]
    • William A. Stoft & Gary L. Guertner, Ethnic Conflict: The Perils of Military Intervention, PARAMETERS 30, 37 (Spring 1995) [hereinafter Ethnic Conflict].
    • Parameters , vol.30 , pp. 37
    • Stoft, W.A.1    Guertner, G.L.2
  • 9
    • 84923720316 scopus 로고    scopus 로고
    • note
    • See DEP'T OF DEFENSE, DIRECTIVE 5100.77, DOD LAW OF WAR PROGRAM, para. E(1)(a)(10 July 1979) [hereinafter DOD. Dir. 5100.77] (requiring that United States Armed Forces "shall comply with the law of war in the conduct of military operations and related activities in armed conflict, however such conflicts are characterized") (emphasis added). See also Joint Chiefs of Staff Memorandum, MJCS 0124-88, subject: Implementation of DOD Law of War Program (4 Aug. 1988) (stating that legal advisors will review all operations plans as well as rules of engagement to ensure compliance with the Department of Defense Law of War Program); DEP'T OF ARMY, REG. 27-1, JUDGE ADVOCATE LEGAL SERVICE, para. 2-1g (3 Feb. 1995) (requiring The Judge Advocate General to review operations plans and rules of engagement for compliance with obligations under international law).
  • 10
    • 44649088645 scopus 로고
    • Extraterritoriality of human rights treaties
    • The laws of war apply to all cases of declared war or any other conflict which may arise between the United States and other nations, even if one of the parties does not recognize the state of war. The customary law of war also applies to all cases of occupation of foreign territory by the exercise of armed force. FM 27-10, supra note 4, para. 8 (implementing and explaining the provisions of Article 2, common to the 1949 Geneva Conventions which restrict the application of the codified laws of war to international armed conflicts). See also Theodor Meron, Extraterritoriality of Human Rights Treaties, 89 AM. J. INT'L L. 78 (1995) (stating that the Geneva Conventions were not "strictly speaking" applicable to United States operations inside Haiti) [hereinafter Extraterritoriality of Human Rights Treaties]; Larry Rohter, Legal Vacuum in Haiti is Testing U.S. Policy, N.Y. TIMES, Nov. 4, 1994, at A34. One operational distinction among many others is the extent to which United States forces undertake to disarm the civilian populace. During a war, of course, United States forces defeat their enemy on the battlefield, and then take the enemy weapons away if they refuse to lay them down voluntarily. During other operations, United States forces have repeatedly implemented programs to disarm the civilian population without using illegal force or upsetting the often delicate political balance of the operation. See generally Major General S.L. Arnold & Major David Stahl, A Power Projection Army in Operations Other Than War, PARAMETERS 4, 17 (Winter 1993-94) [hereinafter Power Projection Army] (describing the difficulties of disarming the Somali population during Operation Restore Hope and noting that "[a]ny future mission of this type must take into account the extraordinarily complex and difficult process of disarming the civilians of the country if that is part of the mission"); F.M. Lorenz, Weapons Confiscation Policy During the First Phase of Operation Restore Hope, in SMALL WARS AND COUNTERINSURGENCIES, 409, 421 (Winter 1994) (describing the early weapons policy in Somalia); Susan L. Turley, Note, Keeping the Peace: Do the Laws of War Apply?, 73 TEX. L. REV. 139 (1994) (arguing that United Nations peacekeeping operations are not currently covered by the laws of war and that "[peacekeeping forces are left to wander in a legal twilight zone, where they have no clear guidance on exactly what type of mission they are involved in, let alone what the law and the rules of engagement permit. Unless the international community is willing to forego such values as military certainty, adherence to humanitarian norms, and the prevention of future wars, peacekeeping law must be clarified."); But cf. 1971 Zagreb Resolution on the Institute of International Law on Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which United Nations Forces May Be Engaged, 54 ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL 465-70 (1972), reprinted in 66 AM. J. INT'L L. 465-68 (1972); DOCUMENTS ON THE LAWS OF WAR 371-375 (Adam Roberts & Richard Guelff eds., 1982) (noting that although the United Nations is not a party to any international agreements on the laws of war, the humanitarian law of war applies to all UN operations "as of right").
    • (1995) Am. J. Int'l L. , vol.89 , pp. 78
    • Meron, T.1
  • 11
    • 26344480109 scopus 로고
    • Legal vacuum in Haiti is testing U.S. Policy
    • Nov. 4
    • The laws of war apply to all cases of declared war or any other conflict which may arise between the United States and other nations, even if one of the parties does not recognize the state of war. The customary law of war also applies to all cases of occupation of foreign territory by the exercise of armed force. FM 27-10, supra note 4, para. 8 (implementing and explaining the provisions of Article 2, common to the 1949 Geneva Conventions which restrict the application of the codified laws of war to international armed conflicts). See also Theodor Meron, Extraterritoriality of Human Rights Treaties, 89 AM. J. INT'L L. 78 (1995) (stating that the Geneva Conventions were not "strictly speaking" applicable to United States operations inside Haiti) [hereinafter Extraterritoriality of Human Rights Treaties]; Larry Rohter, Legal Vacuum in Haiti is Testing U.S. Policy, N.Y. TIMES, Nov. 4, 1994, at A34. One operational distinction among many others is the extent to which United States forces undertake to disarm the civilian populace. During a war, of course, United States forces defeat their enemy on the battlefield, and then take the enemy weapons away if they refuse to lay them down voluntarily. During other operations, United States forces have repeatedly implemented programs to disarm the civilian population without using illegal force or upsetting the often delicate political balance of the operation. See generally Major General S.L. Arnold & Major David Stahl, A Power Projection Army in Operations Other Than War, PARAMETERS 4, 17 (Winter 1993-94) [hereinafter Power Projection Army] (describing the difficulties of disarming the Somali population during Operation Restore Hope and noting that "[a]ny future mission of this type must take into account the extraordinarily complex and difficult process of disarming the civilians of the country if that is part of the mission"); F.M. Lorenz, Weapons Confiscation Policy During the First Phase of Operation Restore Hope, in SMALL WARS AND COUNTERINSURGENCIES, 409, 421 (Winter 1994) (describing the early weapons policy in Somalia); Susan L. Turley, Note, Keeping the Peace: Do the Laws of War Apply?, 73 TEX. L. REV. 139 (1994) (arguing that United Nations peacekeeping operations are not currently covered by the laws of war and that "[peacekeeping forces are left to wander in a legal twilight zone, where they have no clear guidance on exactly what type of mission they are involved in, let alone what the law and the rules of engagement permit. Unless the international community is willing to forego such values as military certainty, adherence to humanitarian norms, and the prevention of future wars, peacekeeping law must be clarified."); But cf. 1971 Zagreb Resolution on the Institute of International Law on Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which United Nations Forces May Be Engaged, 54 ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL 465-70 (1972), reprinted in 66 AM. J. INT'L L. 465-68 (1972); DOCUMENTS ON THE LAWS OF WAR 371-375 (Adam Roberts & Richard Guelff eds., 1982) (noting that although the United Nations is not a party to any international agreements on the laws of war, the humanitarian law of war applies to all UN operations "as of right").
    • (1994) N.Y. Times
    • Rohter, L.1
  • 12
    • 0040135124 scopus 로고
    • A power projection army in operations other than war
    • Winter
    • The laws of war apply to all cases of declared war or any other conflict which may arise between the United States and other nations, even if one of the parties does not recognize the state of war. The customary law of war also applies to all cases of occupation of foreign territory by the exercise of armed force. FM 27-10, supra note 4, para. 8 (implementing and explaining the provisions of Article 2, common to the 1949 Geneva Conventions which restrict the application of the codified laws of war to international armed conflicts). See also Theodor Meron, Extraterritoriality of Human Rights Treaties, 89 AM. J. INT'L L. 78 (1995) (stating that the Geneva Conventions were not "strictly speaking" applicable to United States operations inside Haiti) [hereinafter Extraterritoriality of Human Rights Treaties]; Larry Rohter, Legal Vacuum in Haiti is Testing U.S. Policy, N.Y. TIMES, Nov. 4, 1994, at A34. One operational distinction among many others is the extent to which United States forces undertake to disarm the civilian populace. During a war, of course, United States forces defeat their enemy on the battlefield, and then take the enemy weapons away if they refuse to lay them down voluntarily. During other operations, United States forces have repeatedly implemented programs to disarm the civilian population without using illegal force or upsetting the often delicate political balance of the operation. See generally Major General S.L. Arnold & Major David Stahl, A Power Projection Army in Operations Other Than War, PARAMETERS 4, 17 (Winter 1993-94) [hereinafter Power Projection Army] (describing the difficulties of disarming the Somali population during Operation Restore Hope and noting that "[a]ny future mission of this type must take into account the extraordinarily complex and difficult process of disarming the civilians of the country if that is part of the mission"); F.M. Lorenz, Weapons Confiscation Policy During the First Phase of Operation Restore Hope, in SMALL WARS AND COUNTERINSURGENCIES, 409, 421 (Winter 1994) (describing the early weapons policy in Somalia); Susan L. Turley, Note, Keeping the Peace: Do the Laws of War Apply?, 73 TEX. L. REV. 139 (1994) (arguing that United Nations peacekeeping operations are not currently covered by the laws of war and that "[peacekeeping forces are left to wander in a legal twilight zone, where they have no clear guidance on exactly what type of mission they are involved in, let alone what the law and the rules of engagement permit. Unless the international community is willing to forego such values as military certainty, adherence to humanitarian norms, and the prevention of future wars, peacekeeping law must be clarified."); But cf. 1971 Zagreb Resolution on the Institute of International Law on Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which United Nations Forces May Be Engaged, 54 ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL 465-70 (1972), reprinted in 66 AM. J. INT'L L. 465-68 (1972); DOCUMENTS ON THE LAWS OF WAR 371-375 (Adam Roberts & Richard Guelff eds., 1982) (noting that although the United Nations is not a party to any international agreements on the laws of war, the humanitarian law of war applies to all UN operations "as of right").
    • (1993) Parameters , vol.4 , pp. 17
    • Arnold, S.L.1    Stahl, D.2
  • 13
    • 0042442239 scopus 로고
    • Weapons confiscation policy during the first phase of operation restore hope
    • Winter
    • The laws of war apply to all cases of declared war or any other conflict which may arise between the United States and other nations, even if one of the parties does not recognize the state of war. The customary law of war also applies to all cases of occupation of foreign territory by the exercise of armed force. FM 27-10, supra note 4, para. 8 (implementing and explaining the provisions of Article 2, common to the 1949 Geneva Conventions which restrict the application of the codified laws of war to international armed conflicts). See also Theodor Meron, Extraterritoriality of Human Rights Treaties, 89 AM. J. INT'L L. 78 (1995) (stating that the Geneva Conventions were not "strictly speaking" applicable to United States operations inside Haiti) [hereinafter Extraterritoriality of Human Rights Treaties]; Larry Rohter, Legal Vacuum in Haiti is Testing U.S. Policy, N.Y. TIMES, Nov. 4, 1994, at A34. One operational distinction among many others is the extent to which United States forces undertake to disarm the civilian populace. During a war, of course, United States forces defeat their enemy on the battlefield, and then take the enemy weapons away if they refuse to lay them down voluntarily. During other operations, United States forces have repeatedly implemented programs to disarm the civilian population without using illegal force or upsetting the often delicate political balance of the operation. See generally Major General S.L. Arnold & Major David Stahl, A Power Projection Army in Operations Other Than War, PARAMETERS 4, 17 (Winter 1993-94) [hereinafter Power Projection Army] (describing the difficulties of disarming the Somali population during Operation Restore Hope and noting that "[a]ny future mission of this type must take into account the extraordinarily complex and difficult process of disarming the civilians of the country if that is part of the mission"); F.M. Lorenz, Weapons Confiscation Policy During the First Phase of Operation Restore Hope, in SMALL WARS AND COUNTERINSURGENCIES, 409, 421 (Winter 1994) (describing the early weapons policy in Somalia); Susan L. Turley, Note, Keeping the Peace: Do the Laws of War Apply?, 73 TEX. L. REV. 139 (1994) (arguing that United Nations peacekeeping operations are not currently covered by the laws of war and that "[peacekeeping forces are left to wander in a legal twilight zone, where they have no clear guidance on exactly what type of mission they are involved in, let alone what the law and the rules of engagement permit. Unless the international community is willing to forego such values as military certainty, adherence to humanitarian norms, and the prevention of future wars, peacekeeping law must be clarified."); But cf. 1971 Zagreb Resolution on the Institute of International Law on Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which United Nations Forces May Be Engaged, 54 ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL 465-70 (1972), reprinted in 66 AM. J. INT'L L. 465-68 (1972); DOCUMENTS ON THE LAWS OF WAR 371-375 (Adam Roberts & Richard Guelff eds., 1982) (noting that although the United Nations is not a party to any international agreements on the laws of war, the humanitarian law of war applies to all UN operations "as of right").
    • (1994) Small Wars and Counterinsurgencies , vol.409 , pp. 421
    • Lorenz, F.M.1
  • 14
    • 84937305071 scopus 로고
    • Keeping the peace: Do the laws of war apply?
    • Note
    • The laws of war apply to all cases of declared war or any other conflict which may arise between the United States and other nations, even if one of the parties does not recognize the state of war. The customary law of war also applies to all cases of occupation of foreign territory by the exercise of armed force. FM 27-10, supra note 4, para. 8 (implementing and explaining the provisions of Article 2, common to the 1949 Geneva Conventions which restrict the application of the codified laws of war to international armed conflicts). See also Theodor Meron, Extraterritoriality of Human Rights Treaties, 89 AM. J. INT'L L. 78 (1995) (stating that the Geneva Conventions were not "strictly speaking" applicable to United States operations inside Haiti) [hereinafter Extraterritoriality of Human Rights Treaties]; Larry Rohter, Legal Vacuum in Haiti is Testing U.S. Policy, N.Y. TIMES, Nov. 4, 1994, at A34. One operational distinction among many others is the extent to which United States forces undertake to disarm the civilian populace. During a war, of course, United States forces defeat their enemy on the battlefield, and then take the enemy weapons away if they refuse to lay them down voluntarily. During other operations, United States forces have repeatedly implemented programs to disarm the civilian population without using illegal force or upsetting the often delicate political balance of the operation. See generally Major General S.L. Arnold & Major David Stahl, A Power Projection Army in Operations Other Than War, PARAMETERS 4, 17 (Winter 1993-94) [hereinafter Power Projection Army] (describing the difficulties of disarming the Somali population during Operation Restore Hope and noting that "[a]ny future mission of this type must take into account the extraordinarily complex and difficult process of disarming the civilians of the country if that is part of the mission"); F.M. Lorenz, Weapons Confiscation Policy During the First Phase of Operation Restore Hope, in SMALL WARS AND COUNTERINSURGENCIES, 409, 421 (Winter 1994) (describing the early weapons policy in Somalia); Susan L. Turley, Note, Keeping the Peace: Do the Laws of War Apply?, 73 TEX. L. REV. 139 (1994) (arguing that United Nations peacekeeping operations are not currently covered by the laws of war and that "[peacekeeping forces are left to wander in a legal twilight zone, where they have no clear guidance on exactly what type of mission they are involved in, let alone what the law and the rules of engagement permit. Unless the international community is willing to forego such values as military certainty, adherence to humanitarian norms, and the prevention of future wars, peacekeeping law must be clarified."); But cf. 1971 Zagreb Resolution on the Institute of International Law on Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which United Nations Forces May Be Engaged, 54 ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL 465-70 (1972), reprinted in 66 AM. J. INT'L L. 465-68 (1972); DOCUMENTS ON THE LAWS OF WAR 371-375 (Adam Roberts & Richard Guelff eds., 1982) (noting that although the United Nations is not a party to any international agreements on the laws of war, the humanitarian law of war applies to all UN operations "as of right").
    • (1994) Tex. L. Rev. , vol.73 , pp. 139
    • Turley, S.L.1
  • 15
    • 0042942979 scopus 로고
    • Zagreb resolution on the Institute of International Law on conditions of application of humanitarian rules of armed conflict to hostilities in which United Nations forces may be engaged
    • But cf. 1971 reprinted in 66 AM. J. INT'L L. 465-68 (1972)
    • The laws of war apply to all cases of declared war or any other conflict which may arise between the United States and other nations, even if one of the parties does not recognize the state of war. The customary law of war also applies to all cases of occupation of foreign territory by the exercise of armed force. FM 27-10, supra note 4, para. 8 (implementing and explaining the provisions of Article 2, common to the 1949 Geneva Conventions which restrict the application of the codified laws of war to international armed conflicts). See also Theodor Meron, Extraterritoriality of Human Rights Treaties, 89 AM. J. INT'L L. 78 (1995) (stating that the Geneva Conventions were not "strictly speaking" applicable to United States operations inside Haiti) [hereinafter Extraterritoriality of Human Rights Treaties]; Larry Rohter, Legal Vacuum in Haiti is Testing U.S. Policy, N.Y. TIMES, Nov. 4, 1994, at A34. One operational distinction among many others is the extent to which United States forces undertake to disarm the civilian populace. During a war, of course, United States forces defeat their enemy on the battlefield, and then take the enemy weapons away if they refuse to lay them down voluntarily. During other operations, United States forces have repeatedly implemented programs to disarm the civilian population without using illegal force or upsetting the often delicate political balance of the operation. See generally Major General S.L. Arnold & Major David Stahl, A Power Projection Army in Operations Other Than War, PARAMETERS 4, 17 (Winter 1993-94) [hereinafter Power Projection Army] (describing the difficulties of disarming the Somali population during Operation Restore Hope and noting that "[a]ny future mission of this type must take into account the extraordinarily complex and difficult process of disarming the civilians of the country if that is part of the mission"); F.M. Lorenz, Weapons Confiscation Policy During the First Phase of Operation Restore Hope, in SMALL WARS AND COUNTERINSURGENCIES, 409, 421 (Winter 1994) (describing the early weapons policy in Somalia); Susan L. Turley, Note, Keeping the Peace: Do the Laws of War Apply?, 73 TEX. L. REV. 139 (1994) (arguing that United Nations peacekeeping operations are not currently covered by the laws of war and that "[peacekeeping forces are left to wander in a legal twilight zone, where they have no clear guidance on exactly what type of mission they are involved in, let alone what the law and the rules of engagement permit. Unless the international community is willing to forego such values as military certainty, adherence to humanitarian norms, and the prevention of future wars, peacekeeping law must be clarified."); But cf. 1971 Zagreb Resolution on the Institute of International Law on Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which United Nations Forces May Be Engaged, 54 ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL 465-70 (1972), reprinted in 66 AM. J. INT'L L. 465-68 (1972); DOCUMENTS ON THE LAWS OF WAR 371-375 (Adam Roberts & Richard Guelff eds., 1982) (noting that although the United Nations is not a party to any international agreements on the laws of war, the humanitarian law of war applies to all UN operations "as of right").
    • (1972) Annuaire de l'Institut de Droit International , vol.54 , pp. 465-470
  • 16
    • 0004270993 scopus 로고
    • The laws of war apply to all cases of declared war or any other conflict which may arise between the United States and other nations, even if one of the parties does not recognize the state of war. The customary law of war also applies to all cases of occupation of foreign territory by the exercise of armed force. FM 27-10, supra note 4, para. 8 (implementing and explaining the provisions of Article 2, common to the 1949 Geneva Conventions which restrict the application of the codified laws of war to international armed conflicts). See also Theodor Meron, Extraterritoriality of Human Rights Treaties, 89 AM. J. INT'L L. 78 (1995) (stating that the Geneva Conventions were not "strictly speaking" applicable to United States operations inside Haiti) [hereinafter Extraterritoriality of Human Rights Treaties]; Larry Rohter, Legal Vacuum in Haiti is Testing U.S. Policy, N.Y. TIMES, Nov. 4, 1994, at A34. One operational distinction among many others is the extent to which United States forces undertake to disarm the civilian populace. During a war, of course, United States forces defeat their enemy on the battlefield, and then take the enemy weapons away if they refuse to lay them down voluntarily. During other operations, United States forces have repeatedly implemented programs to disarm the civilian population without using illegal force or upsetting the often delicate political balance of the operation. See generally Major General S.L. Arnold & Major David Stahl, A Power Projection Army in Operations Other Than War, PARAMETERS 4, 17 (Winter 1993-94) [hereinafter Power Projection Army] (describing the difficulties of disarming the Somali population during Operation Restore Hope and noting that "[a]ny future mission of this type must take into account the extraordinarily complex and difficult process of disarming the civilians of the country if that is part of the mission"); F.M. Lorenz, Weapons Confiscation Policy During the First Phase of Operation Restore Hope, in SMALL WARS AND COUNTERINSURGENCIES, 409, 421 (Winter 1994) (describing the early weapons policy in Somalia); Susan L. Turley, Note, Keeping the Peace: Do the Laws of War Apply?, 73 TEX. L. REV. 139 (1994) (arguing that United Nations peacekeeping operations are not currently covered by the laws of war and that "[peacekeeping forces are left to wander in a legal twilight zone, where they have no clear guidance on exactly what type of mission they are involved in, let alone what the law and the rules of engagement permit. Unless the international community is willing to forego such values as military certainty, adherence to humanitarian norms, and the prevention of future wars, peacekeeping law must be clarified."); But cf. 1971 Zagreb Resolution on the Institute of International Law on Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which United Nations Forces May Be Engaged, 54 ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL 465-70 (1972), reprinted in 66 AM. J. INT'L L. 465-68 (1972); DOCUMENTS ON THE LAWS OF WAR 371-375 (Adam Roberts & Richard Guelff eds., 1982) (noting that although the United Nations is not a party to any international agreements on the laws of war, the humanitarian law of war applies to all UN operations "as of right").
    • (1982) Documents on the Laws of War , pp. 371-375
    • Roberts, A.1    Guelff, R.2
  • 17
    • 0042942983 scopus 로고
    • Rules of engagement: The peacekeeper's friend or foe?
    • Oct.
    • See, e.g., Major Paul D. Adams, Rules of Engagement: The Peacekeeper's Friend or Foe?, MARINE CORPS GAZETTE, Oct. 1993, at 21 (opining that the rules restricting United States forces are ignored and utilized by their opponents to "stack against" American military efforts); John Lancaster, Mission Incomplete, Rangers Pack Up; Missteps, Heavy Casualties Marked Futile Hunt in Mogadishu, WASH. POST, Oct. 21, 1993, at A1 ("We played by our rules and he doesn't play by our rules . . . . He surrounds himself with women and children and stays in the most crowded part of the city."); David Wood, U.S. Heads into New War Era-Chronic Violence, CLEV. PLAIN DEALER, Apr. 3, 1994, at A4 (asserting that the prohibitions of the Geneva Conventions "counted for little in Somalia"). International humanitarian law is defined as the branch of international law dealing with the protection of victims of armed conflict. Jovica Patrnogic, Human Rights and International Humanitarian Law 1, in UNITED NATIONS CENTRE FOR HUMAN RIGHTS, BULLETIN OF HUMAN RIGHTS 91/1 (1992). Human rights law and international humanitarian law are distinct fields that converge in places to share a common goal of protecting human beings from suffering. Id. at 5. Although the two disciplines overlap in purpose to some degree, they each have a different history, focus, and implementing mechanism. Id. at 7.
    • (1993) Marine Corps Gazette , pp. 21
    • Adams, P.D.1
  • 18
    • 0010203651 scopus 로고
    • Mission incomplete, rangers pack up; missteps, heavy casualties marked futile hunt in Mogadishu
    • Oct. 21
    • See, e.g., Major Paul D. Adams, Rules of Engagement: The Peacekeeper's Friend or Foe?, MARINE CORPS GAZETTE, Oct. 1993, at 21 (opining that the rules restricting United States forces are ignored and utilized by their opponents to "stack against" American military efforts); John Lancaster, Mission Incomplete, Rangers Pack Up; Missteps, Heavy Casualties Marked Futile Hunt in Mogadishu, WASH. POST, Oct. 21, 1993, at A1 ("We played by our rules and he doesn't play by our rules . . . . He surrounds himself with women and children and stays in the most crowded part of the city."); David Wood, U.S. Heads into New War Era-Chronic Violence, CLEV. PLAIN DEALER, Apr. 3, 1994, at A4 (asserting that the prohibitions of the Geneva Conventions "counted for little in Somalia"). International humanitarian law is defined as the branch of international law dealing with the protection of victims of armed conflict. Jovica Patrnogic, Human Rights and International Humanitarian Law 1, in UNITED NATIONS CENTRE FOR HUMAN RIGHTS, BULLETIN OF HUMAN RIGHTS 91/1 (1992). Human rights law and international humanitarian law are distinct fields that converge in places to share a common goal of protecting human beings from suffering. Id. at 5. Although the two disciplines overlap in purpose to some degree, they each have a different history, focus, and implementing mechanism. Id. at 7.
    • (1993) Wash. Post
    • Lancaster, J.1
  • 19
    • 26344455723 scopus 로고
    • U.S. Heads into new war era-chronic violence
    • Apr. 3
    • See, e.g., Major Paul D. Adams, Rules of Engagement: The Peacekeeper's Friend or Foe?, MARINE CORPS GAZETTE, Oct. 1993, at 21 (opining that the rules restricting United States forces are ignored and utilized by their opponents to "stack against" American military efforts); John Lancaster, Mission Incomplete, Rangers Pack Up; Missteps, Heavy Casualties Marked Futile Hunt in Mogadishu, WASH. POST, Oct. 21, 1993, at A1 ("We played by our rules and he doesn't play by our rules . . . . He surrounds himself with women and children and stays in the most crowded part of the city."); David Wood, U.S. Heads into New War Era-Chronic Violence, CLEV. PLAIN DEALER, Apr. 3, 1994, at A4 (asserting that the prohibitions of the Geneva Conventions "counted for little in Somalia"). International humanitarian law is defined as the branch of international law dealing with the protection of victims of armed conflict. Jovica Patrnogic, Human Rights and International Humanitarian Law 1, in UNITED NATIONS CENTRE FOR HUMAN RIGHTS, BULLETIN OF HUMAN RIGHTS 91/1 (1992). Human rights law and international humanitarian law are distinct fields that converge in places to share a common goal of protecting human beings from suffering. Id. at 5. Although the two disciplines overlap in purpose to some degree, they each have a different history, focus, and implementing mechanism. Id. at 7.
    • (1994) Clev. Plain Dealer
    • Wood, D.1
  • 20
    • 4243373863 scopus 로고
    • Human rights and international humanitarian law 1
    • See, e.g., Major Paul D. Adams, Rules of Engagement: The Peacekeeper's Friend or Foe?, MARINE CORPS GAZETTE, Oct. 1993, at 21 (opining that the rules restricting United States forces are ignored and utilized by their opponents to "stack against" American military efforts); John Lancaster, Mission Incomplete, Rangers Pack Up; Missteps, Heavy Casualties Marked Futile Hunt in Mogadishu, WASH. POST, Oct. 21, 1993, at A1 ("We played by our rules and he doesn't play by our rules . . . . He surrounds himself with women and children and stays in the most crowded part of the city."); David Wood, U.S. Heads into New War Era-Chronic Violence, CLEV. PLAIN DEALER, Apr. 3, 1994, at A4 (asserting that the prohibitions of the Geneva Conventions "counted for little in Somalia"). International humanitarian law is defined as the branch of international law dealing with the protection of victims of armed conflict. Jovica Patrnogic, Human Rights and International Humanitarian Law 1, in UNITED NATIONS CENTRE FOR HUMAN RIGHTS, BULLETIN OF HUMAN RIGHTS 91/1 (1992). Human rights law and international humanitarian law are distinct fields that converge in places to share a common goal of protecting human beings from suffering. Id. at 5. Although the two disciplines overlap in purpose to some degree, they each have a different history, focus, and implementing mechanism. Id. at 7.
    • (1992) United Nations Centre for Human Rights, Bulletin of Human Rights , Issue.1 , pp. 91
    • Patrnogic, J.1
  • 21
    • 0010157101 scopus 로고
    • Law and anarchy in Somalia
    • Winter
    • See generally F.M. Lorenz, Law and Anarchy in Somalia, PARAMETERS 27 (Winter 1993-94) (describing the conditions faced by United States forces deployed to Somalia). For a description of the conditions in Panama prior to the United States invasion in December 1989, see John E. Parkerson, United States Compliance with Humanitarian Law Respecting Civilians During Operation Just Cause, 133 MIL. L. REV. 31 (1991). The United States cited four grounds for the invasion of Panama. The United Nations General Assembly criticized the invasion as "a flagrant violation of international law and the independence, sovereignty, and territorial integrity of states." G.A. Res. 44/240, U.N. GAOR, 44th Sess., Agenda Item 34, at 1, U.N. DOC. A/RES/44/240(1989).
    • (1993) Parameters , vol.27
    • Lorenz, F.M.1
  • 22
    • 84930566496 scopus 로고
    • United States compliance with humanitarian law respecting civilians during operation just cause
    • G.A. Res. 44/240, U.N. GAOR, 44th Sess., Agenda Item 34, at 1, U.N. DOC. A/RES/44/240(1989)
    • See generally F.M. Lorenz, Law and Anarchy in Somalia, PARAMETERS 27 (Winter 1993-94) (describing the conditions faced by United States forces deployed to Somalia). For a description of the conditions in Panama prior to the United States invasion in December 1989, see John E. Parkerson, United States Compliance with Humanitarian Law Respecting Civilians During Operation Just Cause, 133 MIL. L. REV. 31 (1991). The United States cited four grounds for the invasion of Panama. The United Nations General Assembly criticized the invasion as "a flagrant violation of international law and the independence, sovereignty, and territorial integrity of states." G.A. Res. 44/240, U.N. GAOR, 44th Sess., Agenda Item 34, at 1, U.N. DOC. A/RES/44/240(1989).
    • (1991) Mil. L. Rev. , vol.133 , pp. 31
    • Parkerson, J.E.1
  • 23
    • 84923720315 scopus 로고    scopus 로고
    • 10 U.S.C. §§ 818, 821 (1995)
    • 10 U.S.C. §§ 818, 821 (1995).
  • 24
    • 0041941336 scopus 로고
    • Policy considerations on interstate cooperation in criminal matters
    • n.8
    • See, e.g., Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature Dec. 11, 1948, 78 U.N.T.S. 277 (1948) [hereinafter Genocide Convention]. One scholar counted 315 international instruments which cover twenty-two categories of offenses. The categories of offenses, which derive from multilateral or regional sources, and which often derive from multiple international agreements are: aggression, war crimes, crimes against humanity, unlawful use of weapons, genocide, apartheid, slavery and slave related activities, torture, unlawful human experimentation, piracy, aircraft hijacking, threat and use of force against diplomats and other protected persons, taking of civilian hostages, international drug trafficking, international traffic in obscene materials, destruction or theft of nuclear materials, unlawful use of the mails, interference with submarine cables, falsification and counterfeiting, and bribery of foreign public officials. M. Cherif Bassiouni, Policy Considerations on Interstate Cooperation in Criminal Matters, 4 PACE Y.B. OF INT'L L. 123, 125 n.8 (1992) [hereinafter Interstate Cooperation in Criminal Matters]. See also M. CHERIF BASSIOUNI, INTERNATIONAL CRIMES: DIGEST INDEX OF INTERNATIONAL INSTRUMENTS, 1815-1986 (2 vols. 1986) (The three post-1985 treaties are the Montreal Protocol for the Suppression of Unlawful Acts of Violence at Airports Servicing Civil Aviation, adopted by the International Civil Aviation Association, Feb. 24, 1988, reprinted in 27 I.L.M. 627 (1988); Convention and Protocol From the International Conference on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Mar. 10, 1988, I.M.O. Doc. SVA/CON/15, reprinted in 27 I.L.M. 668 (1988); United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Dec. 19, 1988, U.N. DOC. E/CONF. 82/13, reprinted in 28 I.L.M. 293 (1989)). See infra notes 178-191 and accompanying text for a description of the international crimes defined by the Convention on the Safety of United Nations and Associated Personnel.
    • (1992) Pace Y.B. of Int'l L. , vol.4 , pp. 123
    • Bassiouni, M.C.1
  • 25
    • 84892332730 scopus 로고
    • 2 vols. Feb. 24, 1988, reprinted in 27 I.L.M. 627 (1988)
    • See, e.g., Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature Dec. 11, 1948, 78 U.N.T.S. 277 (1948) [hereinafter Genocide Convention]. One scholar counted 315 international instruments which cover twenty-two categories of offenses. The categories of offenses, which derive from multilateral or regional sources, and which often derive from multiple international agreements are: aggression, war crimes, crimes against humanity, unlawful use of weapons, genocide, apartheid, slavery and slave related activities, torture, unlawful human experimentation, piracy, aircraft hijacking, threat and use of force against diplomats and other protected persons, taking of civilian hostages, international drug trafficking, international traffic in obscene materials, destruction or theft of nuclear materials, unlawful use of the mails, interference with submarine cables, falsification and counterfeiting, and bribery of foreign public officials. M. Cherif Bassiouni, Policy Considerations on Interstate Cooperation in Criminal Matters, 4 PACE Y.B. OF INT'L L. 123, 125 n.8 (1992) [hereinafter Interstate Cooperation in Criminal Matters]. See also M. CHERIF BASSIOUNI, INTERNATIONAL CRIMES: DIGEST INDEX OF INTERNATIONAL INSTRUMENTS, 1815-1986 (2 vols. 1986) (The three post-1985 treaties are the Montreal Protocol for the Suppression of Unlawful Acts of Violence at Airports Servicing Civil Aviation, adopted by the International Civil Aviation Association, Feb. 24, 1988, reprinted in 27 I.L.M. 627 (1988); Convention and Protocol From the International Conference on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Mar. 10, 1988, I.M.O. Doc. SVA/CON/15, reprinted in 27 I.L.M. 668 (1988); United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Dec. 19, 1988, U.N. DOC. E/CONF. 82/13, reprinted in 28 I.L.M. 293 (1989)). See infra notes 178-191 and accompanying text for a description of the international crimes defined by the Convention on the Safety of United Nations and Associated Personnel.
    • (1986) International Crimes: Digest Index of International Instruments , pp. 1815-1986
    • Bassiouni, M.C.1
  • 26
    • 84923720306 scopus 로고
    • The clearest instances of customary international crimes are piracy and war crimes. The Charter of the International Military Tribunal of August 8, 1945 annexed to the Agreement on the Prosecution and Punishment of Major War Criminals of the European Axis, 59 Stat. 1544, 3 Bevans 1238, 82 U.N.T.S. 279, entered into force August 8, 1945 [hereinafter London Charter), recognized that the substantive crime termed "crimes against humanity" proscribed by Article 6(c) arose from "general principles of law recognized by civilized nations." See also RESTATEMENT (THIRD) FOREIGN RELATIONS LAW OF THE UNITED STATES § 101(2)(1986) [hereinafter RESTATEMENT] ("Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation."); Roger S. Clark, Crimes Against Humanity, THE NUREMBERG TRIAL AND INTERNATIONAL LAW 177, 190-94 (George Ginsburgs & Vladimir N. Kudriavstsev eds., 1990).
    • (1986) Restatement (Third) Foreign Relations Law of the United States § , vol.101 , Issue.2
  • 27
    • 9744248424 scopus 로고
    • Crimes against humanity
    • George Ginsburgs & Vladimir N. Kudriavstsev eds.
    • The clearest instances of customary international crimes are piracy and war crimes. The Charter of the International Military Tribunal of August 8, 1945 annexed to the Agreement on the Prosecution and Punishment of Major War Criminals of the European Axis, 59 Stat. 1544, 3 Bevans 1238, 82 U.N.T.S. 279, entered into force August 8, 1945 [hereinafter London Charter), recognized that the substantive crime termed "crimes against humanity" proscribed by Article 6(c) arose from "general principles of law recognized by civilized nations." See also RESTATEMENT (THIRD) FOREIGN RELATIONS LAW OF THE UNITED STATES § 101(2)(1986) [hereinafter RESTATEMENT] ("Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation."); Roger S. Clark, Crimes Against Humanity, THE NUREMBERG TRIAL AND INTERNATIONAL LAW 177, 190-94 (George Ginsburgs & Vladimir N. Kudriavstsev eds., 1990).
    • (1990) The Nuremberg Trial and International Law , vol.177 , pp. 190-194
    • Clark, R.S.1
  • 28
    • 84937313696 scopus 로고
    • The twenty-fifth anniversary of My Lai: A time to inculcate the lessons
    • Jeffrey F. Addicott & William A. Hudson, The Twenty-Fifth Anniversary of My Lai: A Time to Inculcate the Lessons, 139 MIL. L. REV. 153, 177 (1993) [hereinafter My Lai Lessons] (describing aspects of ancient Hebrew Law which prohibited torturing persons, mistreating women and children, or harming surrendering foes). This is an important teaching point for lawyers charged with teaching the laws of war to soldiers and officers. The laws of war are not the product of lawyers trying to "stay busy." The rules regulating armed conflict evolved from the practices which commanders throughout history developed and refined. See generally William G. Eckhardt, Command Criminal Responsibility: A Plea for a Workable Standard, 97 MIL. L. REV. 1, 3 (1982) [hereinafter Command Responsibility] (noting the author's perception that soldiers developed the laws of war as the cornerstone of military professionalism, and lamenting that: Prior to World War II, legal standards for commanders were the practical articulation of the accepted practice of military professionals. This customary international law expressed soldiers' standards which were born on the battlefield and not standards imposed upon them by dilettantes of a different discipline. Undoubtedly, the practicality of these rules led to their general acceptance which in turn was responsible for their codification. Such practical rules were understood and enforced. . . . Modern law of war is driven by an idealistic internationally minded community. The soldier sees his iron law of war sweetened, lawyerized, politicized, third world-ized, and made much less practical.
    • (1993) Mil. L. Rev. , vol.139 , pp. 153
    • Addicott, J.F.1    Hudson, W.A.2
  • 29
    • 84923743371 scopus 로고
    • Command criminal responsibility: A plea for a workable standard
    • Jeffrey F. Addicott & William A. Hudson, The Twenty-Fifth Anniversary of My Lai: A Time to Inculcate the Lessons, 139 MIL. L. REV. 153, 177 (1993) [hereinafter My Lai Lessons] (describing aspects of ancient Hebrew Law which prohibited torturing persons, mistreating women and children, or harming surrendering foes). This is an important teaching point for lawyers charged with teaching the laws of war to soldiers and officers. The laws of war are not the product of lawyers trying to "stay busy." The rules regulating armed conflict evolved from the practices which commanders throughout history developed and refined. See generally William G. Eckhardt, Command Criminal Responsibility: A Plea for a Workable Standard, 97 MIL. L. REV. 1, 3 (1982) [hereinafter Command Responsibility] (noting the author's perception that soldiers developed the laws of war as the cornerstone of military professionalism, and lamenting that: Prior to World War II, legal standards for commanders were the practical articulation of the accepted practice of military professionals. This customary international law expressed soldiers' standards which were born on the battlefield and not standards imposed upon them by dilettantes of a different discipline. Undoubtedly, the practicality of these rules led to their general acceptance which in turn was responsible for their codification. Such practical rules were understood and enforced. . . . Modern law of war is driven by an idealistic internationally minded community. The soldier sees his iron law of war sweetened, lawyerized, politicized, third world-ized, and made much less practical.
    • (1982) Mil. L. Rev. , vol.97 , pp. 1
    • Eckhardt, W.G.1
  • 30
    • 77952045341 scopus 로고    scopus 로고
    • supra note 12, § 404 cmt. a.
    • RESTATEMENT, supra note 12, § 404 cmt. a.
    • Restatement
  • 31
    • 84923720304 scopus 로고    scopus 로고
    • note
    • Id. For a fascinating case illustrating the practical application of this principle, see Demjanjuk v. Petrovsky. 776 F.2d 571, 579-83 (6th Cir. 1985), cert. denied, 475 U.S. 1016 (1986), vacated on other grounds, 10 F.3d 338 (6th Cir. 1993). When United States courts exercise criminal jurisdiction on the basis of universal jurisdiction, they act for all nations and the nationality of the offender or victim, as well as the location of the offense, are irrelevant. Id. at 583. See also United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991) (upholding jurisdiction over a Lebanese citizen who hijacked a Jordanian airliner in Tunisia).
  • 32
    • 0013190251 scopus 로고
    • 14 June hereinafter FM 100-5
    • DEP'T OF ARMY, FIELD MANUAL 100-5, OPERATIONS (14 June 1993) [hereinafter FM 100-5]; DEP'T OF ARMY, FIELD MANUAL 100-23, PEACE OPERATIONS (14 Dec. 1994) [hereinafter FM 100-23].
    • (1993) Field Manual 100-5, Operations
  • 33
    • 0040854456 scopus 로고
    • 14 Dec. hereinafter FM 100-23
    • DEP'T OF ARMY, FIELD MANUAL 100-5, OPERATIONS (14 June 1993) [hereinafter FM 100-5]; DEP'T OF ARMY, FIELD MANUAL 100-23, PEACE OPERATIONS (14 Dec. 1994) [hereinafter FM 100-23].
    • (1994) Field Manual 100-23, Peace Operations
  • 34
    • 84923720302 scopus 로고    scopus 로고
    • note
    • FM 100-5, supra note 16, at 2-4. The ultimate purpose of war is to destroy the enemy's forces and will to fight. The ultimate objectives of operations other than war might be more difficult to define, yet doctrine states that "they too must be clear from the beginning." Id. Field Manual 100-5 restates the critical importance of defining and pursuing the overall operational objective during operations other than war: The linkage between objectives of war at all levels of war is crucial; each operation must contribute to the ultimate strategic aim. The attainment of intermediate objectives must directly, quickly, and economically contribute to the operation. Using the analytical framework of mission, enemy, troops, terrain, and time available (METT-T),commanders designate physical objectives such as an enemy force, decisive or dominating terrain, a juncture of lines of communication (LOCs), or other vital areas essential to accomplishing the mission. These become the basis for all subordinate plans. Actions that do not contribute to achieving the objective must be avoided." Id.
  • 35
    • 84923747978 scopus 로고
    • A commanding presence: Colin Powell reassures Jittery Americans- and psyched out the Iraqis
    • Spring/Summer
    • Tom Post et al., A Commanding Presence: Colin Powell Reassures Jittery Americans- and Psyched out the Iraqis, NEWSWEEK SPECIAL ISSUE, Spring/Summer 1991, at 83.
    • (1991) Newsweek , Issue.SPEC. ISSUE , pp. 83
    • Post, T.1
  • 36
    • 0010025851 scopus 로고
    • Peace operations: A capstone doctrine
    • May-June
    • Brigadier General Morris J. Boyd, Peace Operations: A Capstone Doctrine, MIL. L. REV. 20 (May-June 1995).
    • (1995) Mil. L. Rev. , vol.20
    • Boyd, M.J.1
  • 37
    • 0042442179 scopus 로고
    • 31 June
    • DEP'T OF ARMY, FIELD MANUAL 100-7, DECISIVE FORCE: THE ARMY IN THEATER OPERATIONS 8-1 (31 June 1993). The manual reminds commanders that operations other than war build on an in-place diplomatic structure which requires special sensitivity and coordination with nonmilitary organizations. As a result, operational-level command and unity of command "may be clouded." Id. at 8-5.
    • (1993) Field Manual 100-7, Decisive Force: The Army in Theater Operations , pp. 8-11
  • 38
    • 84923720301 scopus 로고    scopus 로고
    • FM 100-23, supra note 16, at iv.
    • FM 100-23, supra note 16, at iv.
  • 39
    • 84923720300 scopus 로고    scopus 로고
    • S.C. Res. 940, U.N. SCOR, 49th Sess., 3413th mtg., U.N. Doc. S/RES/940 (1994) [hereinafter Res. 940]
    • S.C. Res. 940, U.N. SCOR, 49th Sess., 3413th mtg., U.N. Doc. S/RES/940 (1994) [hereinafter Res. 940].
  • 40
    • 84923720299 scopus 로고    scopus 로고
    • Id. ¶ 4
    • Id. ¶ 4.
  • 41
    • 84923726813 scopus 로고
    • Signs of "mission creep¶ could raise stakes: Another Somalia feared
    • Sept. 22
    • See Judy Keen & Paul Hoverstein, Signs of "Mission Creep¶ Could Raise Stakes: Another Somalia Feared, USA TODAY, Sept. 22, 1994, at A3; T.J. Milling, Haitian Police Savagely Club Demonstrators; Man Beaten to Death at Port; Disgusted G.I.s Forced to Watch, HOUSTON CHRON., Sept. 21, 1994, at A1; Julian Beltrame, U.S. Troops Watch as Haitians Beaten; At Least One Killed, N.Y. TIMES, Sept. 21, 1994, at A1; Mark Matthews, U.S. Forces Failure to Intervene in Haitian-on-Haitian Violence Raises Questions, BALTIMORE SUN, Sept. 21, 1994, at A1.
    • (1994) USA Today
    • Keen, J.1    Hoverstein, P.2
  • 42
    • 26344447124 scopus 로고
    • Haitian police savagely club demonstrators; man beaten to death at port; disgusted G.I.S forced to watch
    • Sept. 21
    • See Judy Keen & Paul Hoverstein, Signs of "Mission Creep¶ Could Raise Stakes: Another Somalia Feared, USA TODAY, Sept. 22, 1994, at A3; T.J. Milling, Haitian Police Savagely Club Demonstrators; Man Beaten to Death at Port; Disgusted G.I.s Forced to Watch, HOUSTON CHRON., Sept. 21, 1994, at A1; Julian Beltrame, U.S. Troops Watch as Haitians Beaten; At Least One Killed, N.Y. TIMES, Sept. 21, 1994, at A1; Mark Matthews, U.S. Forces Failure to Intervene in Haitian-on-Haitian Violence Raises Questions, BALTIMORE SUN, Sept. 21, 1994, at A1.
    • (1994) Houston Chron.
    • Milling, T.J.1
  • 43
    • 26344480818 scopus 로고
    • U.S. Troops watch as Haitians beaten; at least one killed
    • Sept. 21
    • See Judy Keen & Paul Hoverstein, Signs of "Mission Creep¶ Could Raise Stakes: Another Somalia Feared, USA TODAY, Sept. 22, 1994, at A3; T.J. Milling, Haitian Police Savagely Club Demonstrators; Man Beaten to Death at Port; Disgusted G.I.s Forced to Watch, HOUSTON CHRON., Sept. 21, 1994, at A1; Julian Beltrame, U.S. Troops Watch as Haitians Beaten; At Least One Killed, N.Y. TIMES, Sept. 21, 1994, at A1; Mark Matthews, U.S. Forces Failure to Intervene in Haitian-on-Haitian Violence Raises Questions, BALTIMORE SUN, Sept. 21, 1994, at A1.
    • (1994) N.Y. Times
    • Beltrame, J.1
  • 44
    • 9744287026 scopus 로고
    • U.S. Forces failure to intervene in Haitian-on-Haitian violence raises questions
    • Sept. 21
    • See Judy Keen & Paul Hoverstein, Signs of "Mission Creep¶ Could Raise Stakes: Another Somalia Feared, USA TODAY, Sept. 22, 1994, at A3; T.J. Milling, Haitian Police Savagely Club Demonstrators; Man Beaten to Death at Port; Disgusted G.I.s Forced to Watch, HOUSTON CHRON., Sept. 21, 1994, at A1; Julian Beltrame, U.S. Troops Watch as Haitians Beaten; At Least One Killed, N.Y. TIMES, Sept. 21, 1994, at A1; Mark Matthews, U.S. Forces Failure to Intervene in Haitian-on-Haitian Violence Raises Questions, BALTIMORE SUN, Sept. 21, 1994, at A1.
    • (1994) Baltimore Sun
    • Matthews, M.1
  • 45
    • 84923720298 scopus 로고    scopus 로고
    • note
    • See infra notes 396-98 and accompanying text for a discussion of the rules of engagement considerations inherent to enforcing standards of international law.
  • 46
    • 84923720297 scopus 로고    scopus 로고
    • note
    • Operation Uphold Democracy Rules of Engagement Card (21 Sept. 1994) (pocket cards issued to soldiers on the ground) (copy on file with the author).
  • 47
    • 4243283105 scopus 로고
    • Clinton looses the leash: U.S. Forces can protect Haitians
    • Sept. 22
    • Greg McDonald, Clinton Looses the Leash: U.S. Forces Can Protect Haitians, HOUSTON CHRON., Sept. 22, 1994, at A1; Douglas Farah, U.S. Warns Haitian Leaders on Abuses; GI Patrols Stepped Up to Stop Civilian Beatings, WASH. POST, Sept. 22, 1994, at A1; T.J. Milling, U.S. Troops Cleared for Deadly Force, HOUSTON CHRON., Sept. 23, 1994, at A1; Geordie Greig & James Adams, Sleeping with the Enemy, SUN. TIMES, Sept. 25, 1994.
    • (1994) Houston Chron.
    • McDonald, G.1
  • 48
    • 85039505369 scopus 로고
    • U.S. Warns Haitian leaders on abuses; GI patrols stepped up to stop civilian beatings
    • Sept. 22
    • Greg McDonald, Clinton Looses the Leash: U.S. Forces Can Protect Haitians, HOUSTON CHRON., Sept. 22, 1994, at A1; Douglas Farah, U.S. Warns Haitian Leaders on Abuses; GI Patrols Stepped Up to Stop Civilian Beatings, WASH. POST, Sept. 22, 1994, at A1; T.J. Milling, U.S. Troops Cleared for Deadly Force, HOUSTON CHRON., Sept. 23, 1994, at A1; Geordie Greig & James Adams, Sleeping with the Enemy, SUN. TIMES, Sept. 25, 1994.
    • (1994) Wash. Post
    • Farah, D.1
  • 49
    • 26344475374 scopus 로고
    • U.S. Troops cleared for deadly force
    • Sept. 23
    • Greg McDonald, Clinton Looses the Leash: U.S. Forces Can Protect Haitians, HOUSTON CHRON., Sept. 22, 1994, at A1; Douglas Farah, U.S. Warns Haitian Leaders on Abuses; GI Patrols Stepped Up to Stop Civilian Beatings, WASH. POST, Sept. 22, 1994, at A1; T.J. Milling, U.S. Troops Cleared for Deadly Force, HOUSTON CHRON., Sept. 23, 1994, at A1; Geordie Greig & James Adams, Sleeping with the Enemy, SUN. TIMES, Sept. 25, 1994.
    • (1994) Houston Chron.
    • Milling, T.J.1
  • 50
    • 0041439907 scopus 로고
    • Sleeping with the enemy
    • Sept. 25
    • Greg McDonald, Clinton Looses the Leash: U.S. Forces Can Protect Haitians, HOUSTON CHRON., Sept. 22, 1994, at A1; Douglas Farah, U.S. Warns Haitian Leaders on Abuses; GI Patrols Stepped Up to Stop Civilian Beatings, WASH. POST, Sept. 22, 1994, at A1; T.J. Milling, U.S. Troops Cleared for Deadly Force, HOUSTON CHRON., Sept. 23, 1994, at A1; Geordie Greig & James Adams, Sleeping with the Enemy, SUN. TIMES, Sept. 25, 1994.
    • (1994) Sun. Times
    • Greig, G.1    Adams, J.2
  • 51
    • 0042442180 scopus 로고
    • Human rights
    • JOHN N. MOORE ET AL.
    • See Richard B. Lillich, Human Rights, in JOHN N. MOORE ET AL., NATIONAL SECURITY LAW 671, 720 (1990).
    • (1990) National Security Law , vol.671 , pp. 720
    • Lillich, R.B.1
  • 52
    • 84923720296 scopus 로고    scopus 로고
    • American Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909)
    • American Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909).
  • 53
    • 0041941313 scopus 로고
    • American officer's mission for Haitian rights backfires
    • May 12
    • Francis X. Clines, American Officer's Mission for Haitian Rights Backfires, N.Y. TIMES, May 12, 1995, at A1; Charley Reese, Americans, Don't Tolerate Injustice Done to Fine U.S. Serviceman, ORLANDO SENTINEL, Jan 5, 1995, at 12.
    • (1995) N.Y. Times
    • Clines, F.X.1
  • 54
    • 0041941311 scopus 로고
    • Americans, don't tolerate injustice done to fine U.S. Serviceman
    • Jan 5
    • Francis X. Clines, American Officer's Mission for Haitian Rights Backfires, N.Y. TIMES, May 12, 1995, at A1; Charley Reese, Americans, Don't Tolerate Injustice Done to Fine U.S. Serviceman, ORLANDO SENTINEL, Jan 5, 1995, at 12.
    • (1995) Orlando Sentinel , pp. 12
    • Reese, C.1
  • 55
    • 84923720295 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 56
    • 84923720294 scopus 로고    scopus 로고
    • Res. 940, supra note 22, ¶ 4
    • Res. 940, supra note 22, ¶ 4.
  • 57
    • 0041439887 scopus 로고    scopus 로고
    • The nuremberg principles, command responsibility, and the defense of Captain Rockwood
    • Id. Id.
    • Id. See also Edward J. O'Brien, The Nuremberg Principles, Command Responsibility, and the Defense of Captain Rockwood, 151 MIL. L. REV. 145 (1996). Other charges included a second charge of absence without leave, disrespect to a superior commissioned officer, and conduct unbecoming an officer and a gentleman. Except for the conduct unbecoming charge, the other charges arose from Captain Rockwood's conduct on 1 October 1994. Id.
    • (1996) Mil. L. Rev. , vol.151 , pp. 145
    • O'Brien, E.J.1
  • 58
    • 0041941310 scopus 로고
    • The media and capt. Rockwood
    • Dec. 3
    • Bob Gorman, The Media and Capt. Rockwood, WATERTOWN DAILY TIMES, Dec. 3, 1995, at F6-F7 (reporting the facts of the case, describing the widespread media attention given to the case, and relating that as he left for the penitentiary Captain Rockwood left a note reading "[n]ow you cowards can court-martial my dead body.").
    • (1995) Watertown Daily Times
    • Gorman, B.1
  • 60
    • 84923720293 scopus 로고    scopus 로고
    • Gorman, supra note 34, at F7
    • Gorman, supra note 34, at F7.
  • 62
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    • Law without borders: The constitutionality of an International Criminal Court
    • n.234
    • U.S. CONST, art. I, § 8, cl. 10. The origins of the clause are relatively obscure. The only recorded mention of this clause during the Constitutional Convention debates was an expressed concern that the new federal government be able to enforce international law obligations and a dispute over whether the clause's language made a claim to unilaterally define international law. Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 COLUM. J. TRASNAT'L L. 73, 148 n.234 (1995).
    • (1995) Colum. J. Trasnat'l L. , vol.33 , pp. 73
    • Marquardt, P.D.1
  • 63
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    • Universal international law
    • supra note 12, §§ 402-04, 421-23
    • RESTATEMENT, supra note 12, §§ 402-04, 421-23. For an analysis of the process by which states acquire universal jurisdiction over some criminal offenses see Jonathan I. Charney, Universal International Law, 87 AM. J. INT'L L. 529 (1993).
    • (1993) Am. J. Int'l L. , vol.87 , pp. 529
    • Charney, J.I.1
  • 64
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    • International criminalization of internal atrocities
    • Theodor Meron, International Criminalization of Internal Atrocities, 89 AM. J. INT'L L. 554, 563 (1995). Hersch Lauterpacht explained that universal jurisdiction simply allows each state to use its domestic law as a tool for enforcing the law of nations. He wrote, "War criminals are punished, fundamentally, for breaches of international law. They become criminals according to the municipal law of the belligerent only if their action . . . is contrary to international law." Hersch Lauterpacht, The Law of Nations and the Punishment of War Crimes, 21 BRIT. Y.B. INT'L L. 58, 64 (1944).
    • (1995) Am. J. Int'l L. , vol.89 , pp. 554
    • Meron, T.1
  • 65
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    • The law of nations and the punishment of war crimes
    • Theodor Meron, International Criminalization of Internal Atrocities, 89 AM. J. INT'L L. 554, 563 (1995). Hersch Lauterpacht explained that universal jurisdiction simply allows each state to use its domestic law as a tool for
    • (1944) Brit. Y.B. Int'l L. , vol.21 , pp. 58
    • Lauterpacht, H.1
  • 66
    • 84923720292 scopus 로고    scopus 로고
    • note
    • See infra notes 42-91 and accompanying text for a discussion of applicable Uniform Code of Military Justice (UCMJ) provisions and the limitations of the current statutory language. Congress recently created federal court jurisdiction over grave breaches with the War Crimes Act of 1996. See 18 U.S.C. § 2401 (1996), reprinted in 35 I.L.M. 1540 (1996).
  • 67
    • 84923720291 scopus 로고    scopus 로고
    • note
    • See infra notes 92-143 and accompanying text for a discussion of the evolving nature of United States military deployments and the doctrinal changes necessitated by modern international developments.
  • 68
    • 84926275226 scopus 로고
    • On the inadequate reach of humanitarian and human rights law and the need for a new instrument
    • hereinafter Inadequate Reach of Humanitarian Law
    • See infra notes 145-297 and accompanying text for a discussion of the developing international legal prohibitions applicable in previously sovereign internal matters. For a discussion of the norms applicable to internal conflicts see generally Meron, supra note 40; Theodor Meron, On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument, 77 AM. J. INT'L L. 589 (1983) [hereinafter Inadequate Reach of Humanitarian Law); Asbjorn Eide et al., Combating Lawlessness in Eide et al. through Minimum Humanitarian Standards, 89 AM. J. INT'L L. 215 (1995); James A.R. Nafziger, The Security of Human Rights, A Third Phase in the Global System, 20 CAL. W. INT'L L.J. 173 (1990).
    • (1983) Am. J. Int'l L. , vol.77 , pp. 589
    • Meron, T.1
  • 69
    • 84937287426 scopus 로고
    • Combating lawlessness in Eide et al. Through minimum humanitarian standards
    • See infra notes 145-297 and accompanying text for a discussion of the developing international legal prohibitions applicable in previously sovereign internal matters. For a discussion of the norms applicable to internal conflicts see generally Meron, supra note 40; Theodor Meron, On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument, 77 AM. J. INT'L L. 589 (1983) [hereinafter Inadequate Reach of Humanitarian Law); Asbjorn Eide et al., Combating Lawlessness in Eide et al. through Minimum Humanitarian Standards, 89 AM. J. INT'L L. 215 (1995); James A.R. Nafziger, The Security of Human Rights, A Third Phase in the Global System, 20 CAL. W. INT'L L.J. 173 (1990).
    • (1995) Am. J. Int'l L. , vol.89 , pp. 215
    • Eide, A.1
  • 70
    • 84923736362 scopus 로고
    • The security of human rights, a third phase in the Global System
    • See infra notes 145-297 and accompanying text for a discussion of the developing international legal prohibitions applicable in previously sovereign internal matters. For a discussion of the norms applicable to internal conflicts see generally Meron, supra note 40; Theodor Meron, On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument, 77 AM. J. INT'L L. 589 (1983) [hereinafter Inadequate Reach of Humanitarian Law); Asbjorn Eide et al., Combating Lawlessness in Eide et al. through Minimum Humanitarian Standards, 89 AM. J. INT'L L. 215 (1995); James A.R. Nafziger, The Security of Human Rights, A Third Phase in the Global System, 20 CAL. W. INT'L L.J. 173 (1990).
    • (1990) Cal. W. Int'l L.J. , vol.20 , pp. 173
    • Nafziger, J.A.R.1
  • 71
    • 84923720290 scopus 로고    scopus 로고
    • 62d Congress, 2d Sess.
    • 10 U.S.C. §§ 818, 821 (1995). On 5 May 1950, Congress revised the Articles of War by enacting the Uniform Code Of Military Justice, Pub. L. No. 81-506, 1950 U.S.C.C.A.N. (64 Stat.) 2222 (codified as amended at 10 U.S.C. §§ 801-946 (1995)). The Second Continental Congress passed the original Code of 1775 on 30 June 1775. The Code of 1775 was based largely on the British Code of 1774. On 20 September 1776, Congress enlarged and modified the existing Code. Congress amended the Code of 1776 in 1786, and the amended Code continued in force after the ratification of the United States Constitution by virtue of amendments "so far as the same are applicable to the Constitution of the United States." Id. The revised Code of 1806 contained 101 articles, with an additional article relating to the punishment of spies. Congress revised the Articles of War several times over the years, and subsequently superseded the Articles of War by passing the UCMJ. See generally Hearings Before the Committee on Military Affairs, House of Representatives, 62d Congress, 2d Sess., H.R. 23628 Being a Project for the Revision of the Articles of War. The President implements the UCMJ through a series of executive orders which together compose the Manual for Courts-Martial; See MANUAL FOR COURTS MARTIAL, UNITED STATES (1995 ed.) [hereinafter MCM] (composed of Exec. Order No. 12,473, 49 Fed. Reg. 17152 (Apr. 13, 1984), as amended by Exec. Order No. 12,484, 49 Fed. Reg. 28825 (July 13, 1984) (Change 1); Exec. Order No. 12,550, 51 Fed. Reg. 6497 (Feb. 19, 1986) (Change 2); Exec. Order No. 12,586, 52 Fed. Reg. 7103 (Mar. 3, 1987) (Change 3); Exec. Order No. 12,708, 55 Fed. Reg. 11353 (Mar. 23, 1990) (Change 4); Exec. Order No. 12,767, 56 Fed. Reg. 30284 (June 27, 1991) (Change 5); Exec. Order No. 12,888, 58 Fed. Reg. 69153 (Dec. 23, 1993) (Change 6); Exec. Order No. 12,936, 59 Fed. Reg. 59075 (Nov. 10, 1994) (Change 7); Exec. Order No. 12,960, 60 Fed. Reg. 26647 (May 12, 1995) (Change 8)).
    • Hearings before the Committee on Military Affairs, House of Representatives
  • 72
    • 0039422956 scopus 로고    scopus 로고
    • hereinafter MCM (composed of Exec. Order No. 12,473, 49 Fed. Reg. 17152 (Apr. 13, 1984), as amended by Exec. Order No. 12,484, 49 Fed. Reg. 28825 (July 13, 1984) (Change 1); Exec. Order No. 12,550, 51 Fed. Reg. 6497 (Feb. 19, 1986) (Change 2); Exec. Order No. 12,586, 52 Fed. Reg. 7103 (Mar. 3, 1987) (Change 3); Exec. Order No. 12,708, 55 Fed. Reg. 11353 (Mar. 23, 1990) (Change 4); Exec. Order No. 12,767, 56 Fed. Reg. 30284 (June 27, 1991) (Change 5); Exec. Order No. 12,888, 58 Fed. Reg. 69153 (Dec. 23, 1993) (Change 6); Exec. Order No. 12,936, 59 Fed. Reg. 59075 (Nov. 10, 1994) (Change 7); Exec. Order No. 12,960, 60 Fed. Reg. 26647 (May 12, 1995) (Change 8))
    • 10 U.S.C. §§ 818, 821 (1995). On 5 May 1950, Congress revised the Articles of War by enacting the Uniform Code Of Military Justice, Pub. L. No. 81-506, 1950 U.S.C.C.A.N. (64 Stat.) 2222 (codified as amended at 10 U.S.C. §§ 801-946 (1995)). The Second Continental Congress passed the original Code of 1775 on 30 June 1775. The Code of 1775 was based largely on the British Code of 1774. On 20 September 1776, Congress enlarged and modified the existing Code. Congress amended the Code of 1776 in 1786, and the amended Code continued in force after the ratification of the United States Constitution by virtue of amendments "so far as the same are applicable to the Constitution of the United States." Id. The revised Code of 1806 contained 101 articles, with an additional article relating to the punishment of spies. Congress revised the Articles of War several times over the years, and subsequently superseded the Articles of War by passing the UCMJ. See generally Hearings Before the Committee on Military Affairs, House of Representatives, 62d Congress, 2d Sess., H.R. 23628 Being a Project for the Revision of the Articles of War. The President implements the UCMJ through a series of executive orders which together compose the Manual for Courts-Martial; See MANUAL FOR COURTS MARTIAL, UNITED STATES (1995 ed.) [hereinafter MCM] (composed of Exec. Order No. 12,473, 49 Fed. Reg. 17152 (Apr. 13, 1984), as amended by Exec. Order No. 12,484, 49 Fed. Reg. 28825 (July 13, 1984) (Change 1); Exec. Order No. 12,550, 51 Fed. Reg. 6497 (Feb. 19, 1986) (Change 2); Exec. Order No. 12,586, 52 Fed. Reg. 7103 (Mar. 3, 1987) (Change 3); Exec. Order No. 12,708, 55 Fed. Reg. 11353 (Mar. 23, 1990) (Change 4); Exec. Order No. 12,767, 56 Fed. Reg. 30284 (June 27, 1991) (Change 5); Exec. Order No. 12,888, 58 Fed. Reg. 69153 (Dec. 23, 1993) (Change 6); Exec. Order No. 12,936, 59 Fed. Reg. 59075 (Nov. 10, 1994) (Change 7); Exec. Order No. 12,960, 60 Fed. Reg. 26647 (May 12, 1995) (Change 8)).
    • Manual for Courts Martial, United States (1995 Ed.)
  • 73
    • 84923720289 scopus 로고    scopus 로고
    • note
    • FM 27-10, supra note 4, paras. 7-14. General courts-martial may try any person who by the law of war would be within the jurisdiction of a military tribunal. MCM, supra note 44, R.C.M. 201(f)(1)(B)(i). The Manual defines this class of persons as those who violate the law of war, or the law of the occupied territory whenever United States forces have superseded the authority of local officials as an exercise of military government. Id. The International Committee of the Red Cross "underline[d] the fact that, according to International Humanitarian Law as it stands today, the notion of war crimes is limited to situations of international armed conflict" Unpublished Comments, quoted in Meron, supra note 40, at 559. The concept of exercising jurisdiction over such a broad class of persons is unique to the UCMJ. The UCMJ applies worldwide (MCM, supra note 44, R.C.M. 201(a)(2)) and extends punitive power over any act proscribed by the Code without additional subject matter limitations. Solorio v. United States, 483 U.S. 435 (1987). However, the UCMJ generally applies only to a strictly defined group of United States citizens. 10 U.S.C. § 802 (1995). Some military scholars may feel uncomfortable in modifying the UCMJ to allow jurisdiction over foreign nationals who would not otherwise be subject to its provisions. The key to overcoming those objections is to remember that prosecuting continuum crimes would help the commander accomplish the mission, which is precisely the purpose for having a separate system of military justice. See Chappel v. Wallace, 462 U.S. 296 (1983); Parker v. Levy, 417 U.S. 733 (1974); S. Rep. No. 53, 98th Cong., 1st Sess. 2,3 (1983).
  • 74
    • 84923720288 scopus 로고    scopus 로고
    • Meron, supra note 40, at 565 n.64
    • Meron, supra note 40, at 565 n.64.
  • 75
    • 84923715728 scopus 로고    scopus 로고
    • art. LXIV, reprinted in COL. WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS, 919-28 (2d. ed. 1920). e.g., British Articles of War of 1765, art. II, § XX, reprinted in WINTHROP, supra, at 931
    • See Articles of James II, art. LXIV, reprinted in COL. WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS, 919-28 (2d. ed. 1920). Subsequent military codes restated the legality of using military commissions to punish violations of the laws and customs of war. See, e.g., British Articles of War of 1765, art. II, § XX, reprinted in WINTHROP, supra, at 931.
    • Articles of James II
  • 76
    • 0042442115 scopus 로고
    • 64th Cong., 1st Sess., reprinted in S. REP. 230, 64th Cong., 1st Sess.
    • In 1916, Congress held extensive hearings on revising the existing Articles of War. The revised articles added article 2 which defined the class of persons who would be subject to the jurisdiction of military courts-martial. The Judge Advocate General of the Army repeatedly reminded Congress that military commissions had jurisdiction under international law which would not change as a result of amending the American Articles of War. Hearings on S.3191, Subcommittee on Military Affairs of the Senate, 64th Cong., 1st Sess., reprinted in S. REP. 230, 64th Cong., 1st Sess. (1916).
    • (1916) Hearings on S.3191, Subcommittee on Military Affairs of the Senate
  • 77
    • 84923720287 scopus 로고    scopus 로고
    • See infra notes 85-87 and accompanying text
    • See infra notes 85-87 and accompanying text.
  • 78
    • 0042942907 scopus 로고
    • In re Yamashita, 327 U.S. 1, 66 64th Cong., 1st Sess., reprinted in S. REP. 230, supra note 48, at 40, 64th Cong., 1st Sess. S. REP. No. 229, 63rd Cong. 2d Sess., at 53
    • In re Yamashita, 327 U.S. 1, 66 (1946) (quoting Hearings on S.3191, Subcommittee on Military Affairs of the Senate, 64th Cong., 1st Sess., reprinted in S. REP. 230, supra note 48, at 40, 64th Cong., 1st Sess). In earlier testimony before Congress, General Crowder explained: The next article, No. 15, is entirely new, and the reasons for its insertion are these: In our War with Mexico two war courts were brought into existence by the orders of Gen. Scott, viz. the military commission and the council of war. By the military commission, Gen. Scott tried cases cognizable in time of peace by civil courts, and by the council of war he tried offenses against the laws of war. The council of war did not survive the Mexican War period, and in our subsequent wars, its jurisdiction has been taken over by the military commission, which during the Civil War period tried more than 2,000 cases. While the military commission has not been formally authorized by statute, its jurisdiction as a war court has been upheld by the Supreme Court of the United States. It is an institution of the greatest importance in a period of war and should be preserved. In the new code, the jurisdiction of courts-martial has been somewhat amplified by the introduction of the phrase "Persons subject to military law.' There will be more instances in the future than in the past when the jurisdiction of courts-martial will overlap that of the war courts, and the question would arise whether Congress having vested jurisdiction by the statute the common law of war jurisdiction was not ousted. I wish to make it perfectly plain by the new article that in such cases the jurisdiction of the war court is concurrent. S. REP. No. 229, 63rd Cong. 2d Sess., at 53 (emphasis added) (General Crowder testified in exactly the same language to the House of Representatives Committee on Military Affairs on May 14, 1912, id., at 28-29).
    • (1946) Hearings on S.3191, Subcommittee on Military Affairs of the Senate
  • 79
    • 0039780551 scopus 로고
    • Forums for punishing offenses against the law of nations
    • n.34
    • Robinson O. Everett & Scott Silliman, Forums for Punishing Offenses Against the Law of Nations, 29 WAKE FOREST L. REV. 509, 515 n.34 (1994).
    • (1994) Wake Forest L. Rev. , vol.29 , pp. 509
    • Everett, R.O.1    Silliman, S.2
  • 80
    • 84923726194 scopus 로고    scopus 로고
    • 327 U.S. at 64
    • 10 U.S.C. § 821 (1995). Article of War 15 originally read as follows: The provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by the laws of war may be lawfully triable by such military commissions, provost courts, or other military tribunals. An Act Making Appropriations for the Support of the Army for the Year ending June Thirtieth, Nineteen Hundred and Seventeen, and for other purposes, Pub. L. No. 242, 39 Stat. 653, art. 15 (1916). In the 1920 amendments to the Articles of War, Congress inserted the words "by statute" before the words "by the law of war" and omitted the word "lawfully". Yamashita, 327 U.S. at 64.
    • Yamashita
  • 81
    • 84923726194 scopus 로고    scopus 로고
    • 327 U.S. at 66 n.31
    • Yamashita, 327 U.S. at 66 n.31.
    • Yamashita
  • 82
    • 84923720286 scopus 로고    scopus 로고
    • Interview with Lieutenant Colonel (Ret.) H. Wayne Elliott (Jan. 6, 1996)
    • Interview with Lieutenant Colonel (Ret.) H. Wayne Elliott (Jan. 6, 1996).
  • 83
    • 0041439818 scopus 로고
    • The military commission
    • WINTHROP, supra note 47, at 832-33. The experience in Mexico is the first and only time the term "councils of war" appeared in American history. The war councils tried offenders who committed guerrilla warfare, violated the laws of war as guerrillas, or enticed American soldiers to desert. The War Courts employed procedures "not materially differing" from the military commissions conducted at the same time. Id. General Order 20, Army Headquarters at Tampico, Mexico, Feb. 19, 1847, reprinted in Military Orders-Mexican War, NARG (entry 134) (as amended by General Orders 190 and 287) provided the following: Assassination, murder, poisoning, rape, or the attempt to commit either, malicious stabbing or maiming, malicious assault or battery, robbery, theft, the wanton desecration of churches, cemeteries, and the destruction, except by order of a superior officer, of public or private property, whether committed by Mexicans or other civilians in Mexico against individuals of the U.S. military forces, or by such individuals against such individuals, or against Mexicans or civilians; as well as the purchase by Mexicans or civilians in Mexico, from soldiers, of horses, arms, ammunition, equipments or clothing" should be brought to trial before "military commissions. See also A. Wigfall Green, The Military Commission, 42 AM. J. INT'L L. 832, 833 (1948).
    • (1948) Am. J. Int'l L. , vol.42 , pp. 832
    • Green, A.W.1
  • 84
    • 84923720285 scopus 로고    scopus 로고
    • note
    • Statement of The Judge Advocate General of the Army, General Enoch H. Crowder, S. REP. NO. 130, 64th Cong., 1st Sess., 40 (1916).
  • 85
    • 84930557306 scopus 로고
    • The United States-Dakota war trials: A study in military injustice
    • n.317
    • Carol Chomsky, The United States-Dakota War Trials: A Study in Military Injustice, 43 STAN. L. REV. 13, 63 n.317 (1990).
    • (1990) Stan. L. Rev. , vol.43 , pp. 13
    • Chomsky, C.1
  • 86
    • 84923720284 scopus 로고    scopus 로고
    • Id. at 63 n.318
    • Id. at 63 n.318.
  • 87
    • 84923720283 scopus 로고    scopus 로고
    • Id. at 65 n.325
    • Id. at 65 n.325.
  • 88
    • 84923720282 scopus 로고    scopus 로고
    • Id. at 65 n.326
    • Id. at 65 n.326.
  • 89
    • 84923720281 scopus 로고    scopus 로고
    • note
    • Jurisdiction of the Federal Judiciary, 5 Op. Att'y Gen. 55 (1848). During the war with Mexico, Captain Foster, of the Georgia battalion of infantry allegedly murdered a Lieutenant Goff of the Pennsylvania volunteers. General Scott convened a military commission organized and constituted on the charge of homicide. Captain Foster escaped several days into the trial. The Attorney General concluded that the United States had no common law of crimes. Even today, the United States criminal code has no automatic extraterritorial application unless Congress explicitly regulates conduct overseas.
  • 90
    • 84923727505 scopus 로고
    • After My Lai-the case for war crime jurisdiction over civilians in federal district courts
    • Id. at 58. This is the first legal basis for limiting the authority of military tribunals to occupation after armed conflict. The importance of this early opinion lies in the termination of the authority of the temporary military government at the time the military government ended. The opinion concluded that the rules and articles for the government of the Army no longer conveyed jurisdiction once the Army had been disbanded and been mustered out of the service. For the purposes of modifying the UCMJ to have more utility during operations other than war, this early opinion is enlightening because the Attorney General recognized that "Congress can easily provide against a recurrence of the difficulties of the present case." Id. Congress has never provided a jurisdictional basis in United States military courts for punishing violations of the laws of war committed by ex-service members. See Jordan J. Paust, After My Lai-The Case for War Crime Jurisdiction Over Civilians in Federal District Courts, 50 TEX. L. REV. 6 (1971). The attorney general restated the same limitation in subsequent opinions. See, e.g., Jurisdiction of Naval Courts-Martial over Persons Discharged from the Service, 31 Op. Att'y Gen. 521 (1919) (opining that a person discharged from the Naval Service before proceedings are initiated against him cannot thereafter be brought to trial for those violations); Army Officer-Jurisdiction-Civil Courts-Military Courts, 24 Op. Att'y Gen. 570 (1903). The Supreme Court later held that military jurisdiction ends when a service member is discharged, but noted that Congress could create such jurisdiction. United States ex rel. Toth v. Quarles, 350 U.S. 11, 21 (1955) (holding by a six to three margin that the military cannot constitutionally convene a court-martial against an ex-service member suspected of murder and conspiracy to commit murder committed in Korea during the period of military service).
    • (1971) Tex. L. Rev. , vol.50 , pp. 6
    • Paust, J.J.1
  • 91
    • 84923720280 scopus 로고    scopus 로고
    • note
    • Leitensdorfer v. Webb, 61 U.S. (20 How.) 176, 177-78 (1857). Accord Mechanics' & Traders' Bank v. Union Bank, 89 U.S. (22 Wall.) 276, 295-97 (1874); The Grapeshot, 76 U.S. (9 Wall.) 129, 132-33 (1869); Cross v. Harrison, 57 U.S. (16 How.) 164, 189-90.
  • 92
    • 84923731239 scopus 로고    scopus 로고
    • reprinted in WINTHROP, supra note 47, at 1006
    • See WINTHROP, supra note 47, at 833-34. Congress provided that murder, manslaughter, robbery, larceny, and other specified crimes when committed by military persons in time of war or rebellion should be punished by court-martial or military commission. The Act of March 30, 1863, § 30, 12 Stat. 731, 736 (1863) (emphasis added). The Confederate States also recognized the legality of military commissions. See An Act to Organize Military Courts to Attend the Army of the Confederate States in the Field and to Define the Powers of Said Courts, reprinted in WINTHROP, supra note 47, at 1006 (providing that military courts of the Confederate States of America had jurisdiction over "all offences now cognizable by courts-martial . . . and the customs of war").
    • An Act to Organize Military Courts to Attend the Army of the Confederate States in the Field and to Define the Powers of Said Courts
  • 93
    • 84923720279 scopus 로고    scopus 로고
    • note
    • General Order No. 100, Instructions for the Government of the Armies of the United States in the Field, Apr. 24, 1863, 13, reprinted in THE LAWS OF ARMED CONFLICT 3 (Dietrich Schindler & Jiri Toman eds., 1988).
  • 94
    • 84923720278 scopus 로고    scopus 로고
    • Winthrop, supra note 47, at 834
    • Winthrop, supra note 47, at 834.
  • 95
    • 84923720277 scopus 로고    scopus 로고
    • note
    • See, e.g., Coleman v. Tennessee, 97 U.S. 509.(1878). Despite the jurisdictional sufficiency of military commissions, many proceedings were disapproved due to procedural irregularities. See, e.g., Opinion of Judge Advocate General Joseph Holt to President Abraham Lincoln (Sept. 26, 1862), in Letters Sent-JAG, NARG 153 (Entry 1) (sentence disapproved because judge advocate not sworn); Opinion of Judge Advocate General Joseph Holt to Maj. Gen. Benjamin Butler (Nov. 4, 1862), id. (sentence disapproved because records forwarded to Judge Advocate General were merely copies of original records); Opinion of Judge Advocate General Joseph Holt to Maj. Gen. Benjamin Butler (Dec. 16, 1862), id. (sentence disapproved because record did not show sufficient procedural protections for the accused); Gen. Order No. 255, Aug. 1, 1863, id. (death sentence disapproved because record did not show that the order convening the commission was read to the prisoner, and the prisoner did not have opportunity to challenge members, and members not sworn).
  • 96
    • 84923720276 scopus 로고    scopus 로고
    • note
    • WINTHROP. supra note 47, at 834 (describing the Reconstruction Act of March 2, 1867, which established military commissions in the occupied lands of the South); The Reconstruction Acts, 12 Op. Att'y Gen. 141 (1867) (discussing the interpretation of sections of the Reconstruction Act).
  • 97
    • 77957279802 scopus 로고
    • Trial of Henry Wirtz
    • Leon Friedman ed.
    • In 1865, a military commission convicted Captain Henry Wirtz, who was the commandant of the prisoner of war camp at Andersonville, Georgia. Captain Wirtz commanded one of the most notorious prisoner of war camps operated by either side during the Civil War. The commission sentenced him to die for murder and conspiring to maltreat federal prisoners of war while he served as the commandant of the prison at Andersonville, Georgia. See Trial of Henry Wirtz, 1 THE LAW OF WAR: A DOCUMENTARY HISTORY 783-98 (Leon Friedman ed., 1971); Lewis L. Laska & James M. Smith, Hell and the Devil: Andersonville and the Trial of Captain Henry M. Wirtz, CSA, 1865, 68 MIL. L. REV. 77 (1975).
    • (1971) The Law of War: A Documentary History , vol.1 , pp. 783-798
  • 98
    • 0041439813 scopus 로고
    • Hell and the devil: Andersonville and the trial of Captain Henry M. Wirtz, CSA, 1865
    • In 1865, a military commission convicted Captain Henry Wirtz, who was the commandant of the prisoner of war camp at Andersonville, Georgia. Captain Wirtz commanded one of the most notorious prisoner of war camps operated by either side during the Civil War. The commission sentenced him to die for murder and conspiring to maltreat federal prisoners of war while he served as the commandant of the prison at Andersonville, Georgia. See Trial of Henry Wirtz, 1 THE LAW OF WAR: A DOCUMENTARY HISTORY 783-98 (Leon Friedman ed., 1971); Lewis L. Laska & James M. Smith, Hell and the Devil: Andersonville and the Trial of Captain Henry M. Wirtz, CSA, 1865, 68 MIL. L. REV. 77 (1975).
    • (1975) Mil. L. Rev. , vol.68 , pp. 77
    • Laska, L.L.1    Smith, J.M.2
  • 99
    • 84923720275 scopus 로고    scopus 로고
    • note
    • Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). On 21 October 1864, Lamdin P. Milligan faced trial by a military commission convened in Indianapolis, Indiana by order of Brevet Major-General Hovey, the commander of the military district of Indiana. The charges were preferred by a major of the Judge Advocate General's Corps, and consisted of numerous specifications grouped under the charges "Conspiracy against the Government of the United States," "Affording aid and comfort to rebels against the authority of the United States," "Inciting insurrection," "Disloyal practices," and "Violation of the Laws of War." The military commission convicted him of all offenses and sentenced him to suffer death by hanging on Friday, 19 May 1865. Id.
  • 100
    • 0041941245 scopus 로고
    • Id. at 121.
    • Id. at 121. The authorities were greatly afraid of an organization known as the Sons of Liberty. The Judge Advocate General released a report which described the Sons of Liberty as an organized, powerful group of conspirators who had been hired by Confederate officials to destroy the North. The Judge Advocate General demonized the group by saying that "Judea produced but one Judas Iscariot, but there has arisen together in our land an entire brood of such traitors . . . all struggling with the same reckless malignancy for the dismemberment of our Union." JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM 782 (1988). In the case of one of Milligan's co-conspirators, the "Supreme Grand Commander of the Sons of Liberty," the Supreme Court held that neither the Constitution nor federal statutes granted a right to certiorari for review of military commissions. Ex parte Vallandigham, 28 F. Cas. 874 (C.C.S.D. Ohio 1863) (No. 16,816), cert. denied, 68 U.S. (1 Wall.) 243 (1863). But see 12 Op. Att'y Gen. 332 (1867) (opining that a prisoner arrested with a view towards trial by military commission for violating his parole could have sought a writ of habeas corpus from the Supreme Court if the district court had not released him prior to trial). Unlike his compatriot, Milligan sought review of the denial of the writ of habeas corpus by the commission, and the Supreme Court restated the limitations of otherwise valid military commission jurisdiction It will be borne in mind that this is not a question of the power to proclaim martial law, when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on states in rebellion to cripple their resources and quell the insurrection ... artial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectively closes the courts and deposes the civil administration. Ex Parte Milligan, 71 U.S. at 127. The Justices unanimously recognized the legality of military commissions, but three Justices dissented on the grounds that the lead opinion seemed to imply limits to congressional authority to impose martial law. The Chief Justice wrote, "Where peace exists, the law of peace must prevail. What we do maintain is, that when the nation is involved in war . . . it is within the power of Congress to determine in what states or districts such great and imminent public danger exists as justifies the authorization of military tribunals . . . ." Id. at 140.
    • (1988) Battle Cry of Freedom , vol.782
    • McPherson, J.M.1
  • 101
    • 0042942897 scopus 로고    scopus 로고
    • 71 U.S. at 127 Id. at 140
    • Id. at 121. The authorities were greatly afraid of an organization known as the Sons of Liberty. The Judge Advocate General released a report which described the Sons of Liberty as an organized, powerful group of conspirators who had been hired by Confederate officials to destroy the North. The Judge Advocate General demonized the group by saying that "Judea produced but one Judas Iscariot, but there has arisen together in our land an entire brood of such traitors . . . all struggling with the same reckless malignancy for the dismemberment of our Union." JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM 782 (1988). In the case of one of Milligan's co-conspirators, the "Supreme Grand Commander of the Sons of Liberty," the Supreme Court held that neither the Constitution nor federal statutes granted a right to certiorari for review of military commissions. Ex parte Vallandigham, 28 F. Cas. 874 (C.C.S.D. Ohio 1863) (No. 16,816), cert. denied, 68 U.S. (1 Wall.) 243 (1863). But see 12 Op. Att'y Gen. 332 (1867) (opining that a prisoner arrested with a view towards trial by military commission for violating his parole could have sought a writ of habeas corpus from the Supreme Court if the district court had not released him prior to trial). Unlike his compatriot, Milligan sought review of the denial of the writ of habeas corpus by the commission, and the Supreme Court restated the limitations of otherwise valid military commission jurisdiction It will be borne in mind that this is not a question of the power to proclaim martial law, when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on states in rebellion to cripple their resources and quell the insurrection ... artial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectively closes the courts and deposes the civil administration. Ex Parte Milligan, 71 U.S. at 127. The Justices unanimously recognized the legality of military commissions, but three Justices dissented on the grounds that the lead opinion seemed to imply limits to congressional authority to impose martial law. The Chief Justice wrote, "Where peace exists, the law of peace must prevail. What we do maintain is, that when the nation is involved in war . . . it is within the power of Congress to determine in what states or districts such great and imminent public danger exists as justifies the authorization of military tribunals . . . ." Id. at 140.
    • Ex Parte Milligan
  • 102
    • 84923720274 scopus 로고    scopus 로고
    • note
    • Military Commissions, 11 Op. Att'y Gen. 297 (1865) (1865 U.S. AG LEXIS *36).
  • 103
    • 4243167180 scopus 로고
    • Chomsky, supra note 57, at 67. On 14 April 1865, John Wilkes Booth murdered President Abraham Lincoln. In a coordinated assault, another conspirator named Lewis Powell had stabbed and seriously wounded the Secretary of State, William Seward. Another conspirator was too afraid to shoot the Vice President, Andrew Johnson. After mortally wounding the President, Booth leaped to the stage, broke his leg, and escaped into the alley behind Ford's theater. On 26 April 1865, Union cavalry trapped John Wilkes Booth in a Virginia tobacco barn. Another accomplice, David Herrold surrendered, but Booth resisted. The troopers set fire to the barn in an effort to force Booth to surrender. A trooper shot Booth in the back of the head in the barn, and he died whispering, "Tell my mother I died for my country . . . I did what I thought was best." GEOFFREY C. WARD ET AL., THE CIVIL WAR 383-393 (1990).
    • (1990) The Civil War , pp. 383-393
    • Ward, G.C.1
  • 104
    • 84923720273 scopus 로고    scopus 로고
    • note
    • Military Commissions, 11 Op. Att'y Gen. 297 (1865) (1865 U.S. AG LEXIS *30).
  • 105
    • 84923720272 scopus 로고    scopus 로고
    • Green, supra note 55, at 833
    • Green, supra note 55, at 833.
  • 106
    • 0041439812 scopus 로고
    • Id. at 848.
    • Id. at 848. See also JAMES W. GARNER, II INTERNATIONAL LAW AND THE WORLD WAR 478-82 (1946) (describing the fact that offenses against the law of war may be tried by military commission even though committed before the actual declaration of martial law or the formal declaration of war).
    • (1946) II International Law and the World War , pp. 478-482
    • Garner, J.W.1
  • 107
    • 84923720271 scopus 로고    scopus 로고
    • note
    • Johnson v. Eisentrager, 339 U.S. 763, 786 (1950) (quoting Duncan v. Kahanamoku, 327 U.S. 304 (1945), and denying habeas corpus to Germans convicted in China by an American military commission for war crimes committed after the German surrender and prior to the Japanese surrender). Accord Devlin's Case, 12 Op. Att'y Gen. 128 (1867) (opining that a military commission sitting in Washington had no jurisdiction to try a citizen of the United States, not in the military service, for an ordinary crime committed in New York). This holding should not be confused with other cases which limit the jurisdiction of military tribunals over American civilians. As the text points out, applying the proper authority under the law of war is the key to clearly understanding the delineations of military jurisdiction. Accordingly, the holding in Reid v. Covert, 354 U.S. 1 (1957), is not surprising. 10 U.S.C. § 802 extends courts-martial jurisdiction to "persons accompanying the force." UCMJ, art. 2(a)(11)(1995). In Reid v. Covert, the Court ruled that military jurisdiction could not be constitutionally applied to military dependents in time of peace. 354 U.S. at 35. See also Kinsella v. Singleton, 361 U.S. 234 (1960); McElroy v. Guagliardio, 361 U.S. 281 (1960). The Supreme Court has never squarely faced the issue whether a commander would presently have jurisdiction over American civilians who violate the law of war in the vicinity of United States forces. A literal reading of Articles 18 and 21 of the Uniform Code of Military Justice would appear to give the commander the option of punishing those offenses in the forum of his choice, provided that the trial protected the American's constitutional rights as required by Reid v. Covert and Toth v. Quarles.
  • 108
    • 84923720270 scopus 로고    scopus 로고
    • note
    • Madsen v. Kinsella, 343 U.S. 341 (1952). See also United States v. Schultz, 4 C.M.R. 104, 114 (C.M.A. 1952) (holding that the law of war gives an occupying force both the power and duty to enforce law in occupied territory, and consequently affirming the conviction of an American citizen for negligent homicide committed in occupied Japan); Rose v. McNamara, 375 F.2d 924 (D.C. Cir. 1966), cert. denied 389 U.S. 856 (1967) (upholding a tax evasion conviction by a military court in occupied Okinawa); 2 L. OPPENHEIM, INTERNATIONAL LAW 336-49 (H. Lauterpacht ed. 8th ed., 1969) (discussing the rights and duties of an occupying force).
  • 109
    • 84923720269 scopus 로고    scopus 로고
    • Duncan v. Kahanamoku, 327 U.S. 304, 312 (1945)
    • Duncan v. Kahanamoku, 327 U.S. 304, 312 (1945).
  • 110
    • 84923720268 scopus 로고    scopus 로고
    • note
    • In re Yamashita, 327 U.S. 1 (1946). See also FM 27-10, supra note 4, para. 74 (stating that soldiers lose their right to treatment as prisoners of war when they remove their uniforms to fight in civilian clothes).
  • 111
    • 84923726194 scopus 로고    scopus 로고
    • 327 U.S. at 48
    • Yamashita, 327 U.S. at 48. Seven of the eight soldiers were born in Germany while one was a United States citizen. All eight lived in the United States, and returned to Germany between 1933 and 1941. Id. at 20. After the declaration of war between Germany and the United States, the Germans trained them in the use of explosives and other sabotage techniques. Four soldiers landed at Amagansett Beach, New York on 13 June 1942, and the other four landed at Ponte Vedra Beach, Florida four days later. The four in New York buried their uniforms, fuses, incendiary devices, and timing mechanisms, and went to New York City in civilian clothes. The four in Florida did likewise, but went to Jacksonville, Florida. The Federal Bureau of Investigation eventually captured all eight either in New York or Chicago.
    • Yamashita
  • 112
    • 84923726194 scopus 로고    scopus 로고
    • 327 U.S. at 66
    • Yamashita, 327 U.S. at 66.
    • Yamashita
  • 113
    • 84923720267 scopus 로고    scopus 로고
    • Military Commissions, 11 Op. Att'y Gen. 297 (1865) (1865 U.S. AG LEXIS *2)
    • Military Commissions, 11 Op. Att'y Gen. 297 (1865) (1865 U.S. AG LEXIS *2).
  • 114
    • 84923720266 scopus 로고    scopus 로고
    • note
    • 10 U.S.C. § 818 (1995). Implementing this statutory authority, Rule for Courts-Martial 1003(b)(12) provides that, "[i]n cases tried under the law of war, a general court-martial may adjudge any punishment not prohibited by the law of war." See MCM, supra note 44, R.C.M. 1003(b)(12); Civilians Convention, supra note 4, art. 68 (providing some limits to the discretion of military tribunals to adjudge punishments under the law of war). Rule for Court Martial 201 recognizes the dual jurisdictional grounds over violations of the law of war as well as offenses in violation of civil statutes when an occupying force declares martial law. See also Civilians Convention. supra note 4, arts. 4, 64, 66 (outlining the basis for declaring martial law and enforcing civil laws as an occupying power).
  • 115
    • 84923720265 scopus 로고    scopus 로고
    • note
    • Article 2 of the Articles of War defined the class of "persons subject to military law." 39 Stat. 787, art. 2 (1916). In its 1916 form, Article 2 included some persons who, by the law of war, were prior to 1916 triable under the common law of war at military commissions. The 1916 version of Article 2 conveyed court-martial jurisdiction over "all retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States." Id.
  • 116
    • 84923720264 scopus 로고    scopus 로고
    • See supra note 38 and accompanying text
    • See supra note 38 and accompanying text.
  • 117
    • 84923720263 scopus 로고    scopus 로고
    • Green, supra note 55, at 832
    • Green, supra note 55, at 832.
  • 118
    • 84923720262 scopus 로고    scopus 로고
    • Id. at 833
    • Id. at 833.
  • 119
    • 84923720261 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 120
    • 0042942889 scopus 로고
    • 81st Cong., 1st Sess. 1228-1229
    • By analogy, Article 2(a)(10) of the UCMJ allows jurisdiction over persons serving with or accompanying the force in the field "in time of war," 10 U.S.C. § 802 (1995). Rule for Court-Martial 103(19) defines "Time of War" as a period declared by Congress or supported by the factual determination by the President that the existence of hostilities warrants a finding that a time of war exists for purposes of the manual. MCM, supra note 44, R.C.M. 103(19). "Time of War" affects six punitive articles of the UCMJ. See 10 U.S.C. §§ 901, 905, 906 (which define offenses that can occur only in time of war) and 10 U.S.C. §§ 885, 890, 913 (which are capital offenses in time of war). The legislative history of the UCMJ indicates that Congress considered "Time of War" to mean "a formal state of war." Hearings on H.R. 2498 Before a Subcomm. of the House of Comm. on Armed Services, 81st Cong., 1st Sess. 1228-1229 (1949). The United States Court of Military Appeals (recently redesignated as the Court of Appeals for the Armed Forces) examined the following circumstances among other to determine whether a time of war exists: the nature of the conflict, i.e., "armed hostilities against an organized enemy." United States v. Shell, 23 C.M.R. 110, 114 (C.M.A. 1957); the movement to and numbers of United States forces in the area; the casualties involved and the sacrifices required; the number of active duty personnel; legislation by Congress recognizing or providing for the hostilities; the amount of expenditures in the war effort. See United States v. Bancroft, 11 C.M.R. 5 (C.M.A. 1957); United States v. Anderson, 38 C.M.R. 386 (C.M.A. 1968); Carnahan, The Law of War in the United States Court of Military Appeals, 22 A.F. L. Rev. 120 (1980-1981). The Fiscal Year 1996 Department of Defense Authorization Act requires the Secretary of Defense and the Attorney General to appoint an advisory panel to review and make recommendations on jurisdiction over civilians accompanying the force. The panel must review historical experiences and current practices concerning the employment, training, discipline, and functions of civilians accompanying armed forces in the field. The panel must make recommendations regarding court-martial jurisdiction over civilians accompanying armed forces in the field during time of armed conflict not involving a declared war by Congress, to include revisions to existing Article III courts, or the establishment of Article I courts to exercise jurisdiction over such persons. National Defense Authorization Act For Fiscal Year 1996, Pub. L. No. 104-106, § 1151, 110 Stat. 186 (Feb. 10, 1996).
    • (1949) Hearings on H.R. 2498 before a Subcomm. of the House of Comm. on Armed Services
  • 121
    • 84923746887 scopus 로고
    • The law of war in the United States court of military appeals
    • By analogy, Article 2(a)(10) of the UCMJ allows jurisdiction over persons serving with or accompanying the force in the field "in time of war," 10 U.S.C. § 802 (1995). Rule for Court-Martial 103(19) defines "Time of War" as a period declared by Congress or supported by the factual determination by the President that the existence of hostilities warrants a finding that a time of war exists for purposes of the manual. MCM, supra note 44, R.C.M. 103(19). "Time of War" affects six punitive articles of the UCMJ. See 10 U.S.C. §§ 901, 905, 906 (which define offenses that can occur only in time of war) and 10 U.S.C. §§ 885, 890, 913 (which are capital offenses in time of war). The legislative history of the UCMJ indicates that Congress considered "Time of War" to mean "a formal state of war." Hearings on H.R. 2498 Before a Subcomm. of the House of Comm. on Armed Services, 81st Cong., 1st Sess. 1228-1229 (1949). The United States Court of Military Appeals (recently redesignated as the Court of Appeals for the Armed Forces) examined the following circumstances among other to determine whether a time of war exists: the nature of the conflict, i.e., "armed hostilities against an organized enemy." United States v. Shell, 23 C.M.R. 110, 114 (C.M.A. 1957); the movement to and numbers of United States forces in the area; the casualties involved and the sacrifices required; the number of active duty personnel; legislation by Congress recognizing or providing for the hostilities; the amount of expenditures in the war effort. See United States v. Bancroft, 11 C.M.R. 5 (C.M.A. 1957); United States v. Anderson, 38 C.M.R. 386 (C.M.A. 1968); Carnahan, The Law of War in the United States Court of Military Appeals, 22 A.F. L. Rev. 120 (1980-1981). The Fiscal Year 1996 Department of Defense Authorization Act requires the Secretary of Defense and the Attorney General to appoint an advisory panel to review and make recommendations on jurisdiction over civilians accompanying the force. The panel must review historical experiences and current practices concerning the employment, training, discipline, and functions of civilians accompanying armed forces in the field. The panel must make recommendations regarding court-martial jurisdiction over civilians accompanying armed forces in the field during time of armed conflict not involving a declared war by Congress, to include revisions to existing Article III courts, or the establishment of Article I courts to exercise jurisdiction over such persons. National Defense Authorization Act For Fiscal Year 1996, Pub. L. No. 104-106, § 1151, 110 Stat. 186 (Feb. 10, 1996).
    • (1980) A.F. L. Rev. , vol.22 , pp. 120
    • Carnahan1
  • 122
    • 84937289302 scopus 로고
    • Toward post-heroic warfare
    • May-June Id.
    • Edward N. Luttwak, Toward Post-Heroic Warfare, 74 FOREIGN AFF. 109, 110 (May-June 1995). Now that the Cold War no longer suppresses "hot wars," the entire culture of disciplined restraint in the use of force is in dissolution. Except for Iraq's wars, the consequences have chiefly been manifest within the territories that had been Soviet, as well as Yugoslav. The protracted warfare, catastrophic destruction, and profuse atrocities of eastern Moldavia, the three Caucasus republics, parts of Central Asia, and lately Chechnya, Croatia, and Bosnia have angered many Americans. Aggression and willful escalation remain unpunished. The victors on the battlefield remain in possession of their gains, while the defeated are abandoned to their own devices. It was not so during the Cold War when most antagonists had a superpower patron with its own reasons to control them, victors had their guns whittled down by superpower compacts, and the defeated were often assisted by whichever superpower was not aligned with the victor. Id.
    • (1995) Foreign Aff. , vol.74 , pp. 109
    • Luttwak, E.N.1
  • 123
    • 84923720260 scopus 로고    scopus 로고
    • Id. at 111
    • Id. at 111.
  • 124
    • 0042442053 scopus 로고
    • World order in the post cold-war era: The relevance and role of the United Nations after fifty years
    • n.16
    • This is the estimated worldwide total number of persons killed in the 125 wars since 1945. Abraham J. Gassama, World Order in the Post Cold-War Era: The Relevance and Role of the United Nations After Fifty Years, 20 BROOK. J. INT'L L. 255, 260 n.16 (1994).
    • (1994) Brook. J. Int'l L. , vol.20 , pp. 255
    • Gassama, A.J.1
  • 125
    • 0004061760 scopus 로고
    • 6th ed.
    • Under the provisions for the peaceful settlement of disputes outlined in Chapter VI, the Security Council can "call upon" parties to pursue peaceful solutions or "recommend" such terms of settlement as it may consider appropriate. U.N. Charter, arts. 33-38. See generally GERHARD VON GLAHN, LAW AMONG NATIONS: AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW 594-635 (6th ed. 1992). In contrast, Chapter VII gives the Security Council very broad latitude to respond to "threats to the peace, breaches of the peace, and acts of aggression." U.N. CHARTER, art. 39. The framers of the Charter "conferred upon the Security Council, in the provisions of Chapter VII, a very broad competence to make such determinations and to decide upon the steps necessary to bring about international peace and security." Myres S. McDougal & W. Michael Reisman, Rhodesia and the United Nations: The Lawfulness of International Concern, 62 AM. J. INT'L. L. 1, 6 (1968). The Security Council does not have any power to compel states under Chapter VI. The framers rejected a clause which would have allowed the Security Council to impose a solution on parties where a failure to reach a settlement could be interpreted as a threat to the peace. LELAND M. GOODRICH ET AL., CHARTER OF THE UNITED NATIONS 257-59 (1969). The framers also rejected a provision which would have explicitly linked Chapter VI actions with Chapter VII enforcement actions. Id. at 258.
    • (1992) Law among Nations: An Introduction to Public International Law , pp. 594-635
    • Von Glahn, G.1
  • 126
    • 0041439751 scopus 로고
    • Rhodesia and the United Nations: The lawfulness of International Concern
    • Under the provisions for the peaceful settlement of disputes outlined in Chapter VI, the Security Council can "call upon" parties to pursue peaceful solutions or "recommend" such terms of settlement as it may consider appropriate. U.N. Charter, arts. 33-38. See generally GERHARD VON GLAHN, LAW AMONG NATIONS: AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW 594-635 (6th ed. 1992). In contrast, Chapter VII gives the Security Council very broad latitude to respond to "threats to the peace, breaches of the peace, and acts of aggression." U.N. CHARTER, art. 39. The framers of the Charter "conferred upon the Security Council, in the provisions of Chapter VII, a very broad competence to make such determinations and to decide upon the steps necessary to bring about international peace and security." Myres S. McDougal & W. Michael Reisman, Rhodesia and the United Nations: The Lawfulness of International Concern, 62 AM. J. INT'L. L. 1, 6 (1968). The Security Council does not have any power to compel states under Chapter VI. The framers rejected a clause which would have allowed the Security Council to impose a solution on parties where a failure to reach a settlement could be interpreted as a threat to the peace. LELAND M. GOODRICH ET AL., CHARTER OF THE UNITED NATIONS 257-59 (1969). The framers also rejected a provision which would have explicitly linked Chapter VI actions with Chapter VII enforcement actions. Id. at 258.
    • (1968) Am. J. Int'l. L. , vol.62 , pp. 1
    • McDougal, M.S.1    Reisman, W.M.2
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    • Id. at 258
    • Under the provisions for the peaceful settlement of disputes outlined in Chapter VI, the Security Council can "call upon" parties to pursue peaceful solutions or "recommend" such terms of settlement as it may consider appropriate. U.N. Charter, arts. 33-38. See generally GERHARD VON GLAHN, LAW AMONG NATIONS: AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW 594-635 (6th ed. 1992). In contrast, Chapter VII gives the Security Council very broad latitude to respond to "threats to the peace, breaches of the peace, and acts of aggression." U.N. CHARTER, art. 39. The framers of the Charter "conferred upon the Security Council, in the provisions of Chapter VII, a very broad competence to make such determinations and to decide upon the steps necessary to bring about international peace and security." Myres S. McDougal & W. Michael Reisman, Rhodesia and the United Nations: The Lawfulness of International Concern, 62 AM. J. INT'L. L. 1, 6 (1968). The Security Council does not have any power to compel states under Chapter VI. The framers rejected a clause which would have allowed the Security Council to impose a solution on parties where a failure to reach a settlement could be interpreted as a threat to the peace. LELAND M. GOODRICH ET AL., CHARTER OF THE UNITED NATIONS 257-59 (1969). The framers also rejected a provision which would have explicitly linked Chapter VI actions with Chapter VII enforcement actions. Id. at 258.
    • (1969) Charter of the United Nations , pp. 257-259
    • Goodrich, L.M.1
  • 128
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    • note
    • The United Nations Secretary General estimated in an oft-quoted figure that over 100 conflicts left some 20 million dead. An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping: Report of the Secretary General Pursuant to the Statement Adopted by the Summit Meeting of the Security Council on 31 January 1992, U.N. GAOR, 47th Sess., Agenda Item 10, ¶ 8, U.N. DOC. A/47/277 S/24111 (1992)[hereinafter Agenda for Peace].
  • 129
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    • Id. ¶ 2
    • Id. ¶ 2.
  • 130
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    • Toward a new world order
    • George W. Bush, Toward a New World Order, 1 DEP'T OF STATE DISPATCH 491 (1990) (outlining American expectations of the new international framework before a joint session of Congress); Anthony Clark Arend, Symposium: The United Nations and the New World Order, 81 GEO. L.J. 491, 492-93 (1993).
    • (1990) Dep't of State Dispatch , vol.1 , pp. 491
    • Bush, G.W.1
  • 131
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    • Symposium: The United Nations and the new world order
    • George W. Bush, Toward a New World Order, 1 DEP'T OF STATE DISPATCH 491 (1990) (outlining American expectations of the new international framework before a joint session of Congress); Anthony Clark Arend, Symposium: The United Nations and the New World Order, 81 GEO. L.J. 491, 492-93 (1993).
    • (1993) Geo. L.J. , vol.81 , pp. 491
    • Arend, A.C.1
  • 132
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    • Summit at the U.N.
    • Feb. 1
    • Summit at the U.N., N.Y. TIMES, Feb. 1, 1992, at A5; Frank J. Murray, Bush Offers U.N. Army Everything But Troops, WASH. TIMES, Sept. 22, 1992, at A3.
    • (1992) N.Y. Times
  • 133
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    • Bush offers U.N. Army everything but troops
    • Sept. 22
    • Summit at the U.N., N.Y. TIMES, Feb. 1, 1992, at A5; Frank J. Murray, Bush Offers U.N. Army Everything But Troops, WASH. TIMES, Sept. 22, 1992, at A3.
    • (1992) Wash. Times
    • Murray, F.J.1
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    • The U.N. And the laws of war: How can the World's Peacekeepers be Held Accountable?
    • Note
    • Julianne Peck, Note, The U.N. and the Laws of War: How Can the World's Peacekeepers be Held Accountable?, 21 SYRACUSE J. INT'L L. & COM. 283, 288-89 (1995).
    • (1995) Syracuse J. Int'l L. & Com. , vol.21 , pp. 283
    • Peck, J.1
  • 136
    • 84923748190 scopus 로고    scopus 로고
    • THE SUN. TELEGRAPH LTD., Dec. 24, 1995, at 14
    • Ethnic Conflict, supra note 5, at 31. The example of Chechnya, like Bosnia, is only one of many pointing to a regression in the conduct of war to some more bloody ruthless era. Professor Martin van Creveld of the Hebrew University in Jerusalem remarked that this is "a world of small statelets, of warlords with shifting loyalties and wars without major setpiece clashes. The people fighting them are not just sol" diers either, but civilians too. That is why there is no distinction between combatants and noncombatants." Marcus Warren, International Peace and Goodwill: Almost, THE SUN. TELEGRAPH LTD., Dec. 24, 1995, at 14.
    • International Peace and Goodwill: Almost
    • Warren, M.1
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    • Bosnia crystallizes U.S. Post-cold war role: As two administrations wavered, the need for U.S. Leadership became clear
    • Dec. 3
    • In May 1993, President Clinton began to doubt the policy of using airstrikes to assist the Muslim-led Bosnian government. He read a book called "Balkan Ghosts" by Robert D. Kaplan which suggested that the ethnic hatreds in the Balkans were so deeply rooted that there is little America could do. Michael Dobbs, Bosnia Crystallizes U.S. Post-Cold War Role: As Two Administrations Wavered, the Need for U.S. Leadership Became Clear, WASH. POST, Dec. 3, 1995. at A1. Aside from Bosnia-Herzegovina, the following nations suffer from ethnic strife: Spain, Britain, Germany, Romania, Russia, Moldova, Georgia, Azerbaijan, Turkey, Iraq, Israel, Algeria, Egypt, Sudan, Mauritania, Mali, Chad, Somalia, Senegal, Liberia, Togo, Nigeria, Uganda, Rwanda, Burundi, Kenya, Zaire, Angola, South Africa, Tajikistan, Afghanistan, Pakistan, India, Bhutan, Sri Lanka, Bangladesh, Myanmar, The People's Republic of China, Cambodia, Indonesia, Papua New Guinea, Fiji, Guatemala, Colombia, Peru, and Brazil. Lawrence I. Rothstein, Note, Protecting the New World Order: Is It Time to Create a United Nations Army?, 14 N.Y. L. SCH. J. INT'L & COMP. L. 107, 112 n.35 (1993).
    • (1995) Wash. Post
    • Dobbs, M.1
  • 138
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    • Protecting the new world order: Is it time to create a United Nations Army?
    • Note, n.35
    • In May 1993, President Clinton began to doubt the policy of using airstrikes to assist the Muslim-led Bosnian government. He read a book called "Balkan Ghosts" by Robert D. Kaplan which suggested that the ethnic hatreds in the Balkans were so deeply rooted that there is little America could do. Michael Dobbs, Bosnia Crystallizes U.S. Post-Cold War Role: As Two Administrations Wavered, the Need for U.S. Leadership Became Clear, WASH. POST, Dec. 3, 1995. at A1. Aside from Bosnia-Herzegovina, the following nations suffer from ethnic strife: Spain, Britain, Germany, Romania, Russia, Moldova, Georgia, Azerbaijan, Turkey, Iraq, Israel, Algeria, Egypt, Sudan, Mauritania, Mali, Chad, Somalia, Senegal, Liberia, Togo, Nigeria, Uganda, Rwanda, Burundi, Kenya, Zaire, Angola, South Africa, Tajikistan, Afghanistan, Pakistan, India, Bhutan, Sri Lanka, Bangladesh, Myanmar, The People's Republic of China, Cambodia, Indonesia, Papua New Guinea, Fiji, Guatemala, Colombia, Peru, and Brazil. Lawrence I. Rothstein, Note, Protecting the New World Order: Is It Time to Create a United Nations Army?, 14 N.Y. L. SCH. J. INT'L & COMP. L. 107, 112 n.35 (1993).
    • (1993) N.Y. L. Sch. J. Int'l & Comp. L. , vol.14 , pp. 107
    • Rothstein, L.I.1
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    • The culture of future conflict
    • Winter
    • Ralph Peters, The Culture of Future Conflict, PARAMETERS 18, 25 (Winter 1995-96).
    • (1995) Parameters , vol.18 , pp. 25
    • Peters, R.1
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    • Somalia famine avoidable, aid workers say
    • S.C. Res. 794, U.N. SCOR, 47th Sess., 3145th mtg. at 63, U.N. Doc. S/RES/794 (1992) [hereinafter S.C. Res. 794]. Oct. 4
    • S.C. Res. 794, U.N. SCOR, 47th Sess., 3145th mtg. at 63, U.N. Doc. S/RES/794 (1992) [hereinafter S.C. Res. 794]. See also Mort Rosenblum, Somalia Famine Avoidable, Aid Workers Say, L.A. TIMES, Oct. 4, 1992, at A16; Elizabeth Kurylo, Aid Mission to Somalia Marks "New Chapter" U.N. Chief Says, ATLANTA J. & CONST., Dec. 5, 1992, at A9. In a symptom of the current problems facing policy makers, some commentators suggest that the United States responded only after seeing images of starving Somali children on television sets. See, e.g., Don't Forsake Somalia, N.Y. TIMES, Nov. 4, 1992, at A30.
    • (1992) L.A. Times
    • Rosenblum, M.1
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    • Aid mission to Somalia marks "New chapter" U.N. Chief says
    • Dec. 5
    • S.C. Res. 794, U.N. SCOR, 47th Sess., 3145th mtg. at 63, U.N. Doc. S/RES/794 (1992) [hereinafter S.C. Res. 794]. See also Mort Rosenblum, Somalia Famine Avoidable, Aid Workers Say, L.A. TIMES, Oct. 4, 1992, at A16; Elizabeth Kurylo, Aid Mission to Somalia Marks "New Chapter" U.N. Chief Says, ATLANTA J. & CONST., Dec. 5, 1992, at A9. In a symptom of the current problems facing policy makers, some commentators suggest that the United States responded only after seeing images of starving Somali children on television sets. See, e.g., Don't Forsake Somalia, N.Y. TIMES, Nov. 4, 1992, at A30.
    • (1992) Atlanta J. & Const.
    • Kurylo, E.1
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    • Don't forsake Somalia
    • Nov. 4
    • S.C. Res. 794, U.N. SCOR, 47th Sess., 3145th mtg. at 63, U.N. Doc. S/RES/794 (1992) [hereinafter S.C. Res. 794]. See also Mort Rosenblum, Somalia Famine Avoidable, Aid Workers Say, L.A. TIMES, Oct. 4, 1992, at A16; Elizabeth Kurylo, Aid Mission to Somalia Marks "New Chapter" U.N. Chief Says, ATLANTA J. & CONST., Dec. 5, 1992, at A9. In a symptom of the current problems facing policy makers, some commentators suggest that the United States responded only after seeing images of starving Somali children on television sets. See, e.g., Don't Forsake Somalia, N.Y. TIMES, Nov. 4, 1992, at A30.
    • (1992) N.Y. Times
  • 143
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    • Surviving tutsis tell the story of massacres by Hutu Militias
    • Aug. 1
    • S.C. Res. 846, U.N. SCOR, 48th Sess., 3244th mtg., U.N. Doc. S/RES/846 (1993) (establishing United Nations Observer Mission Uganda-Rwanda (UNOMUR)); S.C. Res. 955, U.N. SCOR, 49th Sess. 3453d mtg., U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598 (1994) (establishing an international tribunal for the prosecution of war crimes committed in Rwanda, and adopting the Statute of the Tribunal which is attached as an Annex to the Security Council Resolution) [hereinafter Rwanda Statute]. See also Robert M. Press, Surviving Tutsis Tell the Story of Massacres by Hutu Militias, THE CHRIST. SCI. MON., Aug. 1, 1994, at 9. At the time of this writing, the ethnic tensions between the Hutus and Tutsis in Rwanda are still causing tremendous human suffering and tragedy. Donatelli Lorch, At Edgy Border, Rwanda Army Kills 100 Hutu, N.Y. TIMES INT'L, Sept. 14, 1995, at A14. The clashes between Tutsis and Hutus are currently threatening the stability of Burundi. Letter dated 3 January 1996 from the Secretary General Addressed to the President of the Security Council, U.N. Doc. S/1996/8 (Jan. 5, 1996) (reporting the results of the Presidential Commission in Burundi which reported among other findings that "the ethnic polarization in the country is intensifying").
    • (1994) The Christ. Sci. Mon. , pp. 9
    • Press, R.M.1
  • 144
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    • At Edgy Border, Rwanda army kills 100 Hutu
    • Sept. 14
    • S.C. Res. 846, U.N. SCOR, 48th Sess., 3244th mtg., U.N. Doc. S/RES/846 (1993) (establishing United Nations Observer Mission Uganda-Rwanda (UNOMUR)); S.C. Res. 955, U.N. SCOR, 49th Sess. 3453d mtg., U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598 (1994) (establishing an international tribunal for the prosecution of war crimes committed in Rwanda, and adopting the Statute of the Tribunal which is attached as an Annex to the Security Council Resolution) [hereinafter Rwanda Statute]. See also Robert M. Press, Surviving Tutsis Tell the Story of Massacres by Hutu Militias, THE CHRIST. SCI. MON., Aug. 1, 1994, at 9. At the time of this writing, the ethnic tensions between the Hutus and Tutsis in Rwanda are still causing tremendous human suffering and tragedy. Donatelli Lorch, At Edgy Border, Rwanda Army Kills 100 Hutu, N.Y. TIMES INT'L, Sept. 14, 1995, at A14. The clashes between Tutsis and Hutus are currently threatening the stability of Burundi. Letter dated 3 January 1996 from the Secretary General Addressed to the President of the Security Council, U.N. Doc. S/1996/8 (Jan. 5, 1996) (reporting the results of the Presidential Commission in Burundi which reported among other findings that "the ethnic polarization in the country is intensifying").
    • (1995) N.Y. Times Int'l
    • Lorch, D.1
  • 145
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    • U.N. Doc. S/1996/8 (Jan. 5, 1996)
    • S.C. Res. 846, U.N. SCOR, 48th Sess., 3244th mtg., U.N. Doc. S/RES/846 (1993) (establishing United Nations Observer Mission Uganda-Rwanda (UNOMUR)); S.C. Res. 955, U.N. SCOR, 49th Sess. 3453d mtg., U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598 (1994) (establishing an international tribunal for the prosecution of war crimes committed in Rwanda, and adopting the Statute of the Tribunal which is attached as an Annex to the Security Council Resolution) [hereinafter Rwanda Statute]. See also Robert M. Press, Surviving Tutsis Tell the Story of Massacres by Hutu Militias, THE CHRIST. SCI. MON., Aug. 1, 1994, at 9. At the time of this writing, the ethnic tensions between the Hutus and Tutsis in Rwanda are still causing tremendous human suffering and tragedy. Donatelli Lorch, At Edgy Border, Rwanda Army Kills 100 Hutu, N.Y. TIMES INT'L, Sept. 14, 1995, at A14. The clashes between Tutsis and Hutus are currently threatening the stability of Burundi. Letter dated 3 January 1996 from the Secretary General Addressed to the President of the Security Council, U.N. Doc. S/1996/8 (Jan. 5, 1996) (reporting the results of the Presidential Commission in Burundi which reported among other findings that "the ethnic polarization in the country is intensifying").
    • Letter Dated 3 January 1996 from the Secretary General Addressed to the President of the Security Council
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    • Peters, supra note 103, at 21
    • Peters, supra note 103, at 21.
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    • note
    • Cyclical trends at work since the end of the Cold War include the violence that accompanies the failure of empires and states, economic scarcity, environmental degradation, epidemics, mass migrations caused by war and famine, and ethnic cleansing. Historically unique trends contributing to the security challenges include global transportation, real-time media images with worldwide coverage, communications technology, proliferation of military technology, pollution, industrialization, and the potential scope of environmental damage caused by population growth. These trends are capable of producing synergistic effects that fast forward systematic collapse in the Third World. Stoft & Guertner, supra note 5, at 31.
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    • New challenges for UN military operation: Implementing an agenda for peace
    • Winter
    • Thomas G. Weiss, New Challenges for UN Military Operation: Implementing an Agenda for Peace, WASH. Q. 53 (Winter 1993). See Reform of United Nations Peacekeeping Operations, S. REP. NO. 43, 103d. Cong., 1st Sess., at vii (1993) (also noting the skyrocketing cost of United Nations operations from $364 million in 1988 to nearly $4 billion in 1995).
    • (1993) Wash. Q. , vol.53
    • Weiss, T.G.1
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    • S. REP. NO. 43, 103d. Cong., 1st Sess.
    • Thomas G. Weiss, New Challenges for UN Military Operation: Implementing an Agenda for Peace, WASH. Q. 53 (Winter 1993). See Reform of United Nations Peacekeeping Operations, S. REP. NO. 43, 103d. Cong., 1st Sess., at vii (1993) (also noting the skyrocketing cost of United Nations operations from $364 million in 1988 to nearly $4 billion in 1995).
    • (1993) Reform of United Nations Peacekeeping Operations
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    • Empowering the United Nations
    • Winter
    • Agenda for Peace, supra note 95, ¶ 20. Peacekeeping is a U.N. invention. It was not specifically defined in the charter but evolved as a noncoercive instrument of conflict control at a time when Cold War constraints prevented the Security Council from taking the more forceful steps permitted by the charter. Boutros-Boutros Ghali, Empowering the United Nations, 71 FOREIGN AFF. 89 (Winter 1992-93).
    • (1992) Foreign Aff. , vol.71 , pp. 89
    • Ghali, B.-B.1
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    • Id. ¶¶ 12, 13, 18, 20
    • Id. ¶¶ 12, 13, 18, 20.
  • 153
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    • note
    • Id. ¶ 13. United States forces involved in peace operations may not encounter large, professional armies or even organized groups responding to a chain of command. Instead, they will likely have to deal with "loosely organized groups of irregulars, terrorists, or other conflicting segments of a population as predominant forces. These elements will attempt to capitalize on perceptions of disenfranchisement or disaffection within the population. Criminal syndicates may also be involved." FM 100-23, supra note 16, at v.
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    • Clinton likely to stress faith in U.N.; some say foreign policy realities have tempered president's idealism
    • Oct. 22
    • John F. Harris, Clinton Likely to Stress Faith in U.N.; Some Say Foreign Policy Realities Have Tempered President's Idealism, WASH. POST, Oct. 22, 1995, at A25.
    • (1995) Wash. Post
    • Harris, J.F.1
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    • Military assistance
    • See Madeline K. Albright, Statement Before the Senate Foreign Relations Committee (Oct. 20, 1993), 4 DEP'T OF STATE DISPATCH 789, 792 (Nov. 15, 1993); Summer
    • See Madeline K. Albright, Statement Before the Senate Foreign Relations Committee (Oct. 20, 1993), 4 DEP'T OF STATE DISPATCH 789, 792 (Nov. 15, 1993);
    • (1995) Disam J. , vol.17 , pp. 50
    • Perry, W.J.1
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    • Dobbs, supra note 102, at A1
    • Dobbs, supra note 102, at A1.
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    • note
    • H.R. REP. NO. 562, 103d Cong., 2d Sess., at 3 (1994) (showing a steady decline in funding beginning in 1986, to the point that 1995 defense appropriations represent only 3.8% of the gross domestic product). By contrast, the spending for the woefully unprepared, ill-equipped force prior to Korea remained at 5% of the gross domestic product in 1949. Id.
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    • Id.
    • Id.
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    • Where we've been . . . Where we're headed: Maintaining a solid framework while building for the future
    • ASSOCIATION OF THE UNITED STATES ARMY, 1995-96
    • General Dennis J. Reimer, Where We've Been . . . Where We're Headed: Maintaining a Solid Framework While Building for the Future, in ASSOCIATION OF THE UNITED STATES ARMY, 1995-96 GREENBOOK 21, 23 (1995) (outlining the Army Chief of Staff's vision for the continued development of an Army "changing to meet the challenges of today . . . tomorrow . . . and the 21st century).
    • (1995) Greenbook , pp. 21
    • Reimer, D.J.1
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    • 104th Cong., 1st Sess. 25 Mar. 9
    • Implementation and Costs of U.S. Policy in Haiti: Hearing Before the Subcomm. on Western Hemisphere and Peace Corps Affairs of the Comm. on For. Relations, 104th Cong., 1st Sess. 25 (Mar. 9, 1995) (statement of Mr. John Deutch, Deputy Secretary of Defense). Mr. Deutch predicted that the funding shortfall would have "devastating results" if not corrected, and that "[o]ur forces will not be able to respond as quickly, endure as long or fight at the level of excellence to which our Nation is accustomed without the timely passing of the supplemental appropriations bill." Id. at 73. In comparison, operations in Somalia cost the Department of Defense nearly $885 million in unplanned expenditures. Peace Operations, Cost of Department of Defense Operations in Somalia, March 1994, GAO/NSIAD-94-88, at 3 (Mar. 1994). Faced with the costs of sustaining operations in Bosnia, the Army decided to eliminate the Armored Gun System after spending more than $260 million over 15 years in development expenses. As a result of canceling the planned system, the 82d Airborne will retain its 30 year old weapons systems until they can no longer function. As a result of operations in Bosnia, the only airborne division in the active United States Army will be forced to deploy on future operations with no deployable armored systems. Sean D. Naylor, Army Trades Off AGS System for Cash/Kills Plan to Beef Up Quick Reaction Force to Pay Personnel Bills, ARMY TIMES, Feb. 5, 1996; Pat Trowell, CONGRESSIONAL QUARTERLY INC., Jan. 4, 1996 (reporting plans for Department of Defense rescissions in the Fiscal Year 1996 budget to pay for the Bosnia deployment, totaling around $1.6 billion, and including $150.4 million for the canceled purchase of six F-16 jets, $357.1 million Navy funds, and $275 million Army funds to cancel modernization of 20 helicopters). The Department of Defense has budgeted more than $1 billion from Fiscal Year 1997 funds for peace operations currently ongoing in Bosnia and Southwest Asia. Secretary of Defense William J. Perry, DOD News Briefing, (Mar. 4, 1996) (available at http://www.dtic.dla.mil/defenselink/news/Mar96/t030496-tper0304.html).
    • (1995) Implementation and Costs of U.S. Policy in Haiti: Hearing before the Subcomm. on Western Hemisphere and Peace Corps Affairs of the Comm. on For. Relations
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    • Army trades off AGS system for cash/kills plan to beef up quick reaction force to pay personnel bills
    • Feb. 5, Pat Trowell, CONGRESSIONAL QUARTERLY INC., Jan. 4, 1996
    • Implementation and Costs of U.S. Policy in Haiti: Hearing Before the Subcomm. on Western Hemisphere and Peace Corps Affairs of the Comm. on For. Relations, 104th Cong., 1st Sess. 25 (Mar. 9, 1995) (statement of Mr. John Deutch, Deputy Secretary of Defense). Mr. Deutch predicted that the funding shortfall would have "devastating results" if not corrected, and that "[o]ur forces will not be able to respond as quickly, endure as long or fight at the level of excellence to which our Nation is accustomed without the timely passing of the supplemental appropriations bill." Id. at 73. In comparison, operations in Somalia cost the Department of Defense nearly $885 million in unplanned expenditures. Peace Operations, Cost of Department of Defense Operations in Somalia, March 1994, GAO/NSIAD-94-88, at 3 (Mar. 1994). Faced with the costs of sustaining operations in Bosnia, the Army decided to eliminate the Armored Gun System after spending more than $260 million over 15 years in development expenses. As a result of canceling the planned system, the 82d Airborne will retain its 30 year old weapons systems until they can no longer function. As a result of operations in Bosnia, the only airborne division in the active United States Army will be forced to deploy on future operations with no deployable armored systems. Sean D. Naylor, Army Trades Off AGS System for Cash/Kills Plan to Beef Up Quick Reaction Force to Pay Personnel Bills, ARMY TIMES, Feb. 5, 1996; Pat Trowell, CONGRESSIONAL QUARTERLY INC., Jan. 4, 1996 (reporting plans for Department of Defense rescissions in the Fiscal Year 1996 budget to pay for the Bosnia deployment, totaling around $1.6 billion, and including $150.4 million for the canceled purchase of six F-16 jets, $357.1 million Navy funds, and $275 million Army funds to cancel modernization of 20 helicopters). The Department of Defense has budgeted more than $1 billion from Fiscal Year 1997 funds for peace operations currently ongoing in Bosnia and Southwest Asia. Secretary of Defense William J. Perry, DOD News Briefing, (Mar. 4, 1996) (available at http://www.dtic.dla.mil/defenselink/news/Mar96/t030496-tper0304.html).
    • (1996) Army Times
    • Naylor, S.D.1
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    • Who won the war? For the allies, the price of victory is still steep
    • May 7
    • Michael Dobbs, Who Won the War? For the Allies, the Price of Victory is Still Steep, WASH. POST, May 7, 1995, at C1.
    • (1995) Wash. Post
    • Dobbs, M.1
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    • May reprinted in 33 I.L.M. 795 (1994) [hereinafter PDD-25]
    • Peters, supra note 103, at 25. After reviewing United States policy regarding peace operations, President Clinton signed Presidential Decision Directive 25 on 3 May 1994, The Clinton Administration's Policy on Reforming Multilateral Peace Operations (May 1994), reprinted in 33 I.L.M. 795 (1994) [hereinafter PDD-25]. See also United States Department of Defense Statement on Peacekeeping, reprinted in 33 I.L.M. 814 (1994) (discussing the focus of the new policy and in particular the desire to ensure that conflicts do not spread and to oppose violations of international and human rights law). The PDD-25 outlined the template the President proposed to use prior to committing United States forces to multilateral peace operations. The directive proposed six areas of desirable reform for the United Nations. The "U.S. must be able to fight and win wars, unilaterally whenever necessary." Id. The PDD-25 commits United States forces to peace operations "to promote peace and stability" even in conflicts which do not "directly threaten American interests." Id. For the first time in American policy, the PDD-25 also defined the scope of peace operations as encompassing "the entire spectrum of activities from traditional peacekeeping to peace enforcement aimed at defusing and resolving international conflicts." Id. The six proposals for reform are: (1) Making disciplined and coherent choices about which operations to support; (2) Reducing United States costs for United Nations peace operations; (3) Defining clearly our policy regarding the command and control of American military forces in United Nations operations; (4) Reforming and improving the United Nations' capability to manage peace operations; (5) Improving the way that the United States government manages and funds peace operations; and (6) Creating better forms of cooperation between the Executive, the Congress, and the American public on peace operations. The PDD-25 also describes a three-tiered set of criteria for weighing when the United States will vote to support peace operations, when American forces will participate in United Nations or other peace operations, and when American forces will participate in operations likely to involve combat.
    • (1994) The Clinton Administration's Policy on Reforming Multilateral Peace Operations
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    • The Iraqi conflict: An assessment of possible war crimes and the call for adoption of an International Criminal Code and Permanent International Tribunal
    • Thomas R. Kleinberger, The Iraqi Conflict: An Assessment of Possible War Crimes and the Call for Adoption of an International Criminal Code and Permanent International Tribunal, 14 N.Y. L. SCH. J. INT'L & COMP. L. 69 (1993); W. Hays Parks, The Gulf War: A Practitioner's View, 10 DICK. J. INT'L L. 393 (1992); Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785 (1988); DEP'T OF DEFENSE, UNITED STATES DEPARTMENT OF DEFENSE REPORT TO CONGRESS ON THE CONDUCT OF THE PERSIAN GULF WAR-APPENDIX ON THE ROLE OF THE LAW OF WAR, reprinted in 31 I.L.M. 612 (1992).
    • (1993) N.Y. L. Sch. J. Int'l & Comp. L. , vol.14 , pp. 69
    • Kleinberger, T.R.1
  • 165
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    • The gulf war: A practitioner's view
    • Thomas R. Kleinberger, The Iraqi Conflict: An Assessment of Possible War Crimes and the Call for Adoption of an International Criminal Code and Permanent International Tribunal, 14 N.Y. L. SCH. J. INT'L & COMP. L. 69 (1993); W. Hays Parks, The Gulf War: A Practitioner's View, 10 DICK. J. INT'L L. 393 (1992); Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785 (1988); DEP'T OF DEFENSE, UNITED STATES DEPARTMENT OF DEFENSE REPORT TO CONGRESS ON THE CONDUCT OF THE PERSIAN GULF WAR-APPENDIX ON THE ROLE OF THE LAW OF WAR, reprinted in 31 I.L.M. 612 (1992).
    • (1992) Dick. J. Int'l L. , vol.10 , pp. 393
    • Parks, W.H.1
  • 166
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    • Universal jurisdiction under International Law
    • DEP'T OF DEFENSE, UNITED STATES DEPARTMENT OF DEFENSE REPORT TO CONGRESS ON THE CONDUCT OF THE PERSIAN GULF WAR-APPENDIX ON THE ROLE OF THE LAW OF WAR, reprinted in 31 I.L.M. 612 (1992)
    • Thomas R. Kleinberger, The Iraqi Conflict: An Assessment of Possible War Crimes and the Call for Adoption of an International Criminal Code and Permanent International Tribunal, 14 N.Y. L. SCH. J. INT'L & COMP. L. 69 (1993); W. Hays Parks, The Gulf War: A Practitioner's View, 10 DICK. J. INT'L L. 393 (1992); Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785 (1988); DEP'T OF DEFENSE, UNITED STATES DEPARTMENT OF DEFENSE REPORT TO CONGRESS ON THE CONDUCT OF THE PERSIAN GULF WAR-APPENDIX ON THE ROLE OF THE LAW OF WAR, reprinted in 31 I.L.M. 612 (1992).
    • (1988) Tex. L. Rev. , vol.66 , pp. 785
    • Randall, K.C.1
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    • FM 100-23, supra note 16, at iv. See also THE JOINT CHIEFS OF STAFF, JOINT PUB 3-07.3, 29 Apr.
    • The term "peace operations" is a comprehensive term that covers a wide range of activities. Peace operations create and sustain the conditions necessary for peace to flourish. Peace operations comprise three types of activities: support to diplomacy (peacemaking, peacebuilding, and preventive diplomacy); peacekeeping; and peace enforcement. Peace operations include traditional peacekeeping as well as peace enforcement activities, such as the protection of humanitarian assistance, establishment of order and stability, enforcement of sanctions, guarantee and denial of movement, establishment of protected zones, and forcible separation of belligerents. FM 100-23, supra note 16, at iv. See also THE JOINT CHIEFS OF STAFF, JOINT PUB 3-07.3, JOINT TACTICS, TECHNIQUES, AND PROCEDURES FOR PEACEKEEPING OPERATIONS (29 Apr. 1994).
    • (1994) Joint Tactics, Techniques, and Procedures for Peacekeeping Operations
  • 168
    • 84923720200 scopus 로고    scopus 로고
    • FM 100-23, supra note 16, at 16
    • FM 100-23, supra note 16, at 16.
  • 169
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    • note
    • S.C. Res. 837, U.N. SCOR, 48th Sess., 3229th mtg., ¶ 5, U.N. Doc. S/RES/837 (1993) (expressing grave alarm at the premeditated attacks apparently directed by the United Somali Congress) [hereinafter S.C. Res. 837].
  • 170
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    • Hunting down aidid; why Clinton changed his mind
    • Dec. 6
    • Patrick J. Sloyan, Hunting Down Aidid; Why Clinton Changed His Mind, NEWSDAY, Dec. 6. 1993, at A1. Unless otherwise noted, all information in this paragraph comes from this source.
    • (1993) Newsday
    • Sloyan, P.J.1
  • 171
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    • Id.
    • Id.
  • 172
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    • U.S. Rangers capture Somali Warlord's aide: 3 U.N. Troops killed
    • Sept. 22
    • Keith B. Richburg & Julia Preston, U.S. Rangers Capture Somali Warlord's Aide: 3 U.N. Troops Killed, WASH. POST, Sept. 22, 1993, at A25.
    • (1993) Wash. Post
    • Richburg, K.B.1    Preston, J.2
  • 173
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    • Id.
    • Id.
  • 174
    • 84923720196 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 175
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    • Somalis' imprisonment poses questions about U.N. Role
    • Nov. 7
    • United Nations officials denied Ato the right to see an attorney by claiming that he had not been charged. United Nations spokesmen argued that Resolution 837 gave them the power to detain anyone for any period of time who was suspected of "militia activities" or of complicity in the 5 June 1993 ambush which killed 24 Pakistani peacekeepers. Keith B. Richburg, Somalis' Imprisonment Poses Questions About U.N. Role, WASH. POST, Nov. 7, 1993, at A45.
    • (1993) Wash. Post
    • Richburg, K.B.1
  • 176
    • 84923720195 scopus 로고    scopus 로고
    • note
    • Interview with Major Charles Pede (Jan. 23, 1996). Major Pede served as the Chief of Justice deployed to Somalia with elements of the 10th Mountain Division.
  • 177
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    • See supra note 3 and accompanying text
    • See supra note 3 and accompanying text.
  • 178
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    • Somalis are not starving, nor are they coalescing
    • Oct. 21
    • Stephen Buckley, Somalis Are Not Starving, Nor Are They Coalescing, WASH. POST, Oct. 21, 1995, at A18.
    • (1995) Wash. Post
    • Buckley, S.1
  • 179
    • 84923720184 scopus 로고    scopus 로고
    • Joint Endeavor Fact Sheet No. 004-B, (7 Dec. 1995) (detailing various aspects of the IFOR (Implementation Force) mission to "create a stable environment for the civil aspects to proceed." The IFOR mission is to protect the force by ensuring self-defense and freedom of movement, enforce required withdrawal of force to respective territories, establish and man a zone of separation, enforce the cessation of hostilities, and to provide a secure environment which permits conduct of civil peace implementation functions) (available at http://www.dtic.dla.mil/bosnia/fs/bos-004.html).
  • 180
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    • U.S. Cautious on opening roads to area of reported massacres
    • Jan. 3
    • Rick Atkinson, U.S. Cautious on Opening Roads to Area of Reported Massacres, WASH. POST, Jan. 3, 1996, at A17; David Rohde, U.S. May Be Mired in Bosnia by Aiding War Crime Probes, CHRIST. SCI. MON., Jan. 17, 1996, at 6; Christine Spolar, NATO Album of Bosnia's Most-Wanted, WASH. POST, Feb. 20, 1996, at A7 (describing the poster issued to help NATO's 60,000 troops identify and detain 51 indicted war criminals).
    • (1996) Wash. Post
    • Atkinson, R.1
  • 181
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    • U.S. May be mired in Bosnia by aiding war crime probes
    • Jan. 17
    • Rick Atkinson, U.S. Cautious on Opening Roads to Area of Reported Massacres, WASH. POST, Jan. 3, 1996, at A17; David Rohde, U.S. May Be Mired in Bosnia by Aiding War Crime Probes, CHRIST. SCI. MON., Jan. 17, 1996, at 6; Christine Spolar, NATO Album of Bosnia's Most-Wanted, WASH. POST, Feb. 20, 1996, at A7 (describing the poster issued to help NATO's 60,000 troops identify and detain 51 indicted war criminals).
    • (1996) Christ. Sci. Mon. , pp. 6
    • Rohde, D.1
  • 182
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    • NATO album of Bosnia's most-wanted
    • Feb. 20
    • Rick Atkinson, U.S. Cautious on Opening Roads to Area of Reported Massacres, WASH. POST, Jan. 3, 1996, at A17; David Rohde, U.S. May Be Mired in Bosnia by Aiding War Crime Probes, CHRIST. SCI. MON., Jan. 17, 1996, at 6; Christine Spolar, NATO Album of Bosnia's Most-Wanted, WASH. POST, Feb. 20, 1996, at A7 (describing the poster issued to help NATO's 60,000 troops identify and detain 51 indicted war criminals).
    • (1996) Wash. Post
    • Spolar, C.1
  • 184
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    • See supra notes 55-61 and accompanying text; K. JACK BAUER, THE MEXICAN WAR 1846-1848, at 327 (1974) (describing the birth of a movement for Mexican incorporation into the United States, or at least the assumption of control by Scott within the entire country).
    • (1974) The Mexican War 1846-1848 , pp. 327
    • Bauer, K.J.1
  • 186
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    • The lessons of Somalia: Not everything went wrong
    • May-June
    • Chester A. Crocker, The Lessons of Somalia: Not Everything Went Wrong, 74 FOREIGN AFF. 2 (May-June 1995).
    • (1995) Foreign Aff. , vol.74 , pp. 2
    • Crocker, C.A.1
  • 187
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    • FM 100-23, supra note 16, at 13
    • FM 100-23, supra note 16, at 13.
  • 188
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    • See infra notes 125-34 and accompanying text
    • See infra notes 125-34 and accompanying text.
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    • GAO/NSIAD-94-9
    • After the Cambodian government took little action on murders and numerous acts of political intimidation during October and November 1992, United Nations Transition Authority Cambodia (UNTAC), officials argued for the creation of a Special Prosecutor's Office. The special office was innovative, and the requirement had not been obvious during the planning phase of the mission. The United Nations formed the Special Prosecutor's Office ten months into the operation, and two full months after an internal UNTAC study verified that the government had taken absolutely no action against human rights offenders. According to one UNTAC official, the decision came too late to significantly improve the situation. United Nations, U.N. Peacekeeping: Lessons Learned in Managing Recent Missions, GAO/NSIAD-94-9, at 54 (1993).
    • (1993) U.N. Peacekeeping: Lessons Learned in Managing Recent Missions , pp. 54
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    • supra note 12, § 702 cmt. d.
    • RESTATEMENT, supra note 12, § 702 cmt. d.
    • Restatement
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    • H. GROTIUS, 2 DE JURE BELLI EST PACIS 438 (Whewell trans. 1853).
    • H. GROTIUS, 2 DE JURE BELLI EST PACIS 438 (Whewell trans. 1853). Judge Lauterpacht noted that "there are limits to [a state's] discretion and that when a state renders itself guilty of cruelties against and persecution of its nationals in such a way as to deny their fundamental human rights and to shock the conscience of humanity, intervention in the interest of humanity is legally permissible." OPPENHEIM, supra note 78, § 137. Thomas Aquinas wrote that the first principle of natural law is do good and avoid evil. According to Aquinas, the very purpose of government is to foster "the unity and peace of the people." PAUL CHRISTOPHER, THE ETHICS OF WAR & PEACE: AN INTRODUCTION TO LEGAL AND MORAL ISSUES 77 (1994).
    • (1994) The Ethics of War & Peace: An Introduction to Legal and Moral Issues , vol.77
    • Christopher, P.1
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    • note
    • During a news conference on 23 February 1977, President Jimmy Carter expressed his "great concern" and stated that the British were considering a request to the United Nations to intervene in Uganda to stop the murders ordered by Idi Amin. 13 WEEKLY COMP. OF PRES. DOC. 244 (Feb. 28, 1977).
  • 193
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    • Humanitarian intervention in the post-cold war era
    • The legal literature on humanitarian intervention is far too extensive to completely list here. The recurring pattern of governments slaughtering their citizens has led many scholars to argue for a clear international rule allowing intervention in the otherwise sovereign affairs of other states based on gross, widespread violations of human rights by the government. See, e.g., Douglas Eisner, Humanitarian Intervention in the Post-Cold War Era, 11 B.U. INT'L L. J. 195 (1993); Jean-Pierre Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CAL. W. INT'L L.J. 203 (1974); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (R. Lillich ed., 1973); MICHAEL WALZER, JUST AND UNJUST WARS 101-08 (1977); F. Teson, An Inquiry into the Legitimacy of Humanitarian Intervention, LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185-214 (L. Damrosch & D. Sheffer eds., 1991); Richard B. Lillich, Forcible Self-Help By States to Protect Human Rights, 53 IOWA L. REV. 325 (1967); B. De Schutter, Humanitarian Intervention: A United Nations Task, 3 CAL. W. INT'L L. REV. 21 (1972); Thomas M. Frank & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); Thomas Behuniak, The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey, 79 MIL. L. REV. 157 (1978); H. Scott Fairley, State Actors, Humanitarian Intervention And International Law: Reopening Pandora's Box, 10 GA. J. INT'L & COMP. L. 29 (1980); Michael J. Bayzler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INT'L L. 547 (1987); Nigel S. Rodley, Human Rights and Humanitarian Intervention: The Case Law of the World Court, 38 INT'L & COMP. L.Q. 321 (1989); R. George Wright, A Contemporary Theory of Humanitarian Intervention, 4 FLA. J. INT'L L. 435 (1989); David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27 CORNELL INT'L L. J. 203 (1994); Barry M. Benjamin, Note, Unilateral Humanitarian Intervention: Legalizing the Use of Force To Prevent Human Rights Atrocities, 16 FORDHAM INT'L L.J. 120 (1992/1993).
    • (1993) B.U. Int'l L. J. , vol.11 , pp. 195
    • Eisner, D.1
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    • The Customary International Law Doctrine of humanitarian intervention: Its current validity under the U.N. Charter
    • The legal literature on humanitarian intervention is far too extensive to completely list here. The recurring pattern of governments slaughtering their citizens has led many scholars to argue for a clear international rule allowing intervention in the otherwise sovereign affairs of other states based on gross, widespread violations of human rights by the government. See, e.g., Douglas Eisner, Humanitarian Intervention in the Post-Cold War Era, 11 B.U. INT'L L. J. 195 (1993); Jean-Pierre Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CAL. W. INT'L L.J. 203 (1974); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (R. Lillich ed., 1973); MICHAEL WALZER, JUST AND UNJUST WARS 101-08 (1977); F. Teson, An Inquiry into the Legitimacy of Humanitarian Intervention, LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185-214 (L. Damrosch & D. Sheffer eds., 1991); Richard B. Lillich, Forcible Self-Help By States to Protect Human Rights, 53 IOWA L. REV. 325 (1967); B. De Schutter, Humanitarian Intervention: A United Nations Task, 3 CAL. W. INT'L L. REV. 21 (1972); Thomas M. Frank & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); Thomas Behuniak, The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey, 79 MIL. L. REV. 157 (1978); H. Scott Fairley, State Actors, Humanitarian Intervention And International Law: Reopening Pandora's Box, 10 GA. J. INT'L & COMP. L. 29 (1980); Michael J. Bayzler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INT'L L. 547 (1987); Nigel S. Rodley, Human Rights and Humanitarian Intervention: The Case Law of the World Court, 38 INT'L & COMP. L.Q. 321 (1989); R. George Wright, A Contemporary Theory of Humanitarian Intervention, 4 FLA. J. INT'L L. 435 (1989); David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27 CORNELL INT'L L. J. 203 (1994); Barry M. Benjamin, Note, Unilateral Humanitarian Intervention: Legalizing the Use of Force To Prevent Human Rights Atrocities, 16 FORDHAM INT'L L.J. 120 (1992/1993).
    • (1974) Cal. W. Int'l L.J. , vol.4 , pp. 203
    • Fonteyne, J.-P.1
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    • The legal literature on humanitarian intervention is far too extensive to completely list here. The recurring pattern of governments slaughtering their citizens has led many scholars to argue for a clear international rule allowing intervention in the otherwise sovereign affairs of other states based on gross, widespread violations of human rights by the government. See, e.g., Douglas Eisner, Humanitarian Intervention in the Post-Cold War Era, 11 B.U. INT'L L. J. 195 (1993); Jean-Pierre Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CAL. W. INT'L L.J. 203 (1974); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (R. Lillich ed., 1973); MICHAEL WALZER, JUST AND UNJUST WARS 101-08 (1977); F. Teson, An Inquiry into the Legitimacy of Humanitarian Intervention, LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185-214 (L. Damrosch & D. Sheffer eds., 1991); Richard B. Lillich, Forcible Self-Help By States to Protect Human Rights, 53 IOWA L. REV. 325 (1967); B. De Schutter, Humanitarian Intervention: A United Nations Task, 3 CAL. W. INT'L L. REV. 21 (1972); Thomas M. Frank & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); Thomas Behuniak, The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey, 79 MIL. L. REV. 157 (1978); H. Scott Fairley, State Actors, Humanitarian Intervention And International Law: Reopening Pandora's Box, 10 GA. J. INT'L & COMP. L. 29 (1980); Michael J. Bayzler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INT'L L. 547 (1987); Nigel S. Rodley, Human Rights and Humanitarian Intervention: The Case Law of the World Court, 38 INT'L & COMP. L.Q. 321 (1989); R. George Wright, A Contemporary Theory of Humanitarian Intervention, 4 FLA. J. INT'L L. 435 (1989); David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27 CORNELL INT'L L. J. 203 (1994); Barry M. Benjamin, Note, Unilateral Humanitarian Intervention: Legalizing the Use of Force To Prevent Human Rights Atrocities, 16 FORDHAM INT'L L.J. 120 (1992/1993).
    • (1973) Humanitarian Intervention and the United Nations
    • Lillich, R.1
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    • The legal literature on humanitarian intervention is far too extensive to completely list here. The recurring pattern of governments slaughtering their citizens has led many scholars to argue for a clear international rule allowing intervention in the otherwise sovereign affairs of other states based on gross, widespread violations of human rights by the government. See, e.g., Douglas Eisner, Humanitarian Intervention in the Post-Cold War Era, 11 B.U. INT'L L. J. 195 (1993); Jean-Pierre Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CAL. W. INT'L L.J. 203 (1974); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (R. Lillich ed., 1973); MICHAEL WALZER, JUST AND UNJUST WARS 101-08 (1977); F. Teson, An Inquiry into the Legitimacy of Humanitarian Intervention, LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185-214 (L. Damrosch & D. Sheffer eds., 1991); Richard B. Lillich, Forcible Self-Help By States to Protect Human Rights, 53 IOWA L. REV. 325 (1967); B. De Schutter, Humanitarian Intervention: A United Nations Task, 3 CAL. W. INT'L L. REV. 21 (1972); Thomas M. Frank & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); Thomas Behuniak, The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey, 79 MIL. L. REV. 157 (1978); H. Scott Fairley, State Actors, Humanitarian Intervention And International Law: Reopening Pandora's Box, 10 GA. J. INT'L & COMP. L. 29 (1980); Michael J. Bayzler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INT'L L. 547 (1987); Nigel S. Rodley, Human Rights and Humanitarian Intervention: The Case Law of the World Court, 38 INT'L & COMP. L.Q. 321 (1989); R. George Wright, A Contemporary Theory of Humanitarian Intervention, 4 FLA. J. INT'L L. 435 (1989); David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27 CORNELL INT'L L. J. 203 (1994); Barry M. Benjamin, Note, Unilateral Humanitarian Intervention: Legalizing the Use of Force To Prevent Human Rights Atrocities, 16 FORDHAM INT'L L.J. 120 (1992/1993).
    • (1977) Just and Unjust Wars , pp. 101-108
    • Walzer, M.1
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    • An inquiry into the legitimacy of humanitarian intervention
    • L. Damrosch & D. Sheffer eds.
    • The legal literature on humanitarian intervention is far too extensive to completely list here. The recurring pattern of governments slaughtering their citizens has led many scholars to argue for a clear international rule allowing intervention in the otherwise sovereign affairs of other states based on gross, widespread violations of human rights by the government. See, e.g., Douglas Eisner, Humanitarian Intervention in the Post-Cold War Era, 11 B.U. INT'L L. J. 195 (1993); Jean-Pierre Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CAL. W. INT'L L.J. 203 (1974); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (R. Lillich ed., 1973); MICHAEL WALZER, JUST AND UNJUST WARS 101-08 (1977); F. Teson, An Inquiry into the Legitimacy of Humanitarian Intervention, LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185-214 (L. Damrosch & D. Sheffer eds., 1991); Richard B. Lillich, Forcible Self-Help By States to Protect Human Rights, 53 IOWA L. REV. 325 (1967); B. De Schutter, Humanitarian Intervention: A United Nations Task, 3 CAL. W. INT'L L. REV. 21 (1972); Thomas M. Frank & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); Thomas Behuniak, The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey, 79 MIL. L. REV. 157 (1978); H. Scott Fairley, State Actors, Humanitarian Intervention And International Law: Reopening Pandora's Box, 10 GA. J. INT'L & COMP. L. 29 (1980); Michael J. Bayzler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INT'L L. 547 (1987); Nigel S. Rodley, Human Rights and Humanitarian Intervention: The Case Law of the World Court, 38 INT'L & COMP. L.Q. 321 (1989); R. George Wright, A Contemporary Theory of Humanitarian Intervention, 4 FLA. J. INT'L L. 435 (1989); David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27 CORNELL INT'L L. J. 203 (1994); Barry M. Benjamin, Note, Unilateral Humanitarian Intervention: Legalizing the Use of Force To Prevent Human Rights Atrocities, 16 FORDHAM INT'L L.J. 120 (1992/1993).
    • (1991) Law and Force in the New International Order , pp. 185-214
    • Teson, F.1
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    • Forcible self-help by states to protect human rights
    • The legal literature on humanitarian intervention is far too extensive to completely list here. The recurring pattern of governments slaughtering their citizens has led many scholars to argue for a clear international rule allowing intervention in the otherwise sovereign affairs of other states based on gross, widespread violations of human rights by the government. See, e.g., Douglas Eisner, Humanitarian Intervention in the Post-Cold War Era, 11 B.U. INT'L L. J. 195 (1993); Jean-Pierre Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CAL. W. INT'L L.J. 203 (1974); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (R. Lillich ed., 1973); MICHAEL WALZER, JUST AND UNJUST WARS 101-08 (1977); F. Teson, An Inquiry into the Legitimacy of Humanitarian Intervention, LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185-214 (L. Damrosch & D. Sheffer eds., 1991); Richard B. Lillich, Forcible Self-Help By States to Protect Human Rights, 53 IOWA L. REV. 325 (1967); B. De Schutter, Humanitarian Intervention: A United Nations Task, 3 CAL. W. INT'L L. REV. 21 (1972); Thomas M. Frank & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); Thomas Behuniak, The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey, 79 MIL. L. REV. 157 (1978); H. Scott Fairley, State Actors, Humanitarian Intervention And International Law: Reopening Pandora's Box, 10 GA. J. INT'L & COMP. L. 29 (1980); Michael J. Bayzler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INT'L L. 547 (1987); Nigel S. Rodley, Human Rights and Humanitarian Intervention: The Case Law of the World Court, 38 INT'L & COMP. L.Q. 321 (1989); R. George Wright, A Contemporary Theory of Humanitarian Intervention, 4 FLA. J. INT'L L. 435 (1989); David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27 CORNELL INT'L L. J. 203 (1994); Barry M. Benjamin, Note, Unilateral Humanitarian Intervention: Legalizing the Use of Force To Prevent Human Rights Atrocities, 16 FORDHAM INT'L L.J. 120 (1992/1993).
    • (1967) Iowa L. Rev. , vol.53 , pp. 325
    • Lillich, R.B.1
  • 199
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    • Humanitarian intervention: A United Nations task
    • The legal literature on humanitarian intervention is far too extensive to completely list here. The recurring pattern of governments slaughtering their citizens has led many scholars to argue for a clear international rule allowing intervention in the otherwise sovereign affairs of other states based on gross, widespread violations of human rights by the government. See, e.g., Douglas Eisner, Humanitarian Intervention in the Post-Cold War Era, 11 B.U. INT'L L. J. 195 (1993); Jean-Pierre Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CAL. W. INT'L L.J. 203 (1974); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (R. Lillich ed., 1973); MICHAEL WALZER, JUST AND UNJUST WARS 101-08 (1977); F. Teson, An Inquiry into the Legitimacy of Humanitarian Intervention, LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185-214 (L. Damrosch & D. Sheffer eds., 1991); Richard B. Lillich, Forcible Self-Help By States to Protect Human Rights, 53 IOWA L. REV. 325 (1967); B. De Schutter, Humanitarian Intervention: A United Nations Task, 3 CAL. W. INT'L L. REV. 21 (1972); Thomas M. Frank & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); Thomas Behuniak, The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey, 79 MIL. L. REV. 157 (1978); H. Scott Fairley, State Actors, Humanitarian Intervention And International Law: Reopening Pandora's Box, 10 GA. J. INT'L & COMP. L. 29 (1980); Michael J. Bayzler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INT'L L. 547 (1987); Nigel S. Rodley, Human Rights and Humanitarian Intervention: The Case Law of the World Court, 38 INT'L & COMP. L.Q. 321 (1989); R. George Wright, A Contemporary Theory of Humanitarian Intervention, 4 FLA. J. INT'L L. 435 (1989); David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27 CORNELL INT'L L. J. 203 (1994); Barry M. Benjamin, Note, Unilateral Humanitarian Intervention: Legalizing the Use of Force To Prevent Human Rights Atrocities, 16 FORDHAM INT'L L.J. 120 (1992/1993).
    • (1972) Cal. W. Int'l L. Rev. , vol.3 , pp. 21
    • De Schutter, B.1
  • 200
    • 0000997152 scopus 로고
    • After Bangladesh: The law of humanitarian intervention by military force
    • The legal literature on humanitarian intervention is far too extensive to completely list here. The recurring pattern of governments slaughtering their citizens has led many scholars to argue for a clear international rule allowing intervention in the otherwise sovereign affairs of other states based on gross, widespread violations of human rights by the government. See, e.g., Douglas Eisner, Humanitarian Intervention in the Post-Cold War Era, 11 B.U. INT'L L. J. 195 (1993); Jean-Pierre Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CAL. W. INT'L L.J. 203 (1974); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (R. Lillich ed., 1973); MICHAEL WALZER, JUST AND UNJUST WARS 101-08 (1977); F. Teson, An Inquiry into the Legitimacy of Humanitarian Intervention, LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185-214 (L. Damrosch & D. Sheffer eds., 1991); Richard B. Lillich, Forcible Self-Help By States to Protect Human Rights, 53 IOWA L. REV. 325 (1967); B. De Schutter, Humanitarian Intervention: A United Nations Task, 3 CAL. W. INT'L L. REV. 21 (1972); Thomas M. Frank & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); Thomas Behuniak, The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey, 79 MIL. L. REV. 157 (1978); H. Scott Fairley, State Actors, Humanitarian Intervention And International Law: Reopening Pandora's Box, 10 GA. J. INT'L & COMP. L. 29 (1980); Michael J. Bayzler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INT'L L. 547 (1987); Nigel S. Rodley, Human Rights and Humanitarian Intervention: The Case Law of the World Court, 38 INT'L & COMP. L.Q. 321 (1989); R. George Wright, A Contemporary Theory of Humanitarian Intervention, 4 FLA. J. INT'L L. 435 (1989); David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27 CORNELL INT'L L. J. 203 (1994); Barry M. Benjamin, Note, Unilateral Humanitarian Intervention: Legalizing the Use of Force To Prevent Human Rights Atrocities, 16 FORDHAM INT'L L.J. 120 (1992/1993).
    • (1973) Am. J. Int'l L. , vol.67 , pp. 275
    • Frank, T.M.1    Rodley, N.S.2
  • 201
    • 0039680945 scopus 로고
    • The law of unilateral humanitarian intervention by armed force: A legal survey
    • The legal literature on humanitarian intervention is far too extensive to completely list here. The recurring pattern of governments slaughtering their citizens has led many scholars to argue for a clear international rule allowing intervention in the otherwise sovereign affairs of other states based on gross, widespread violations of human rights by the government. See, e.g., Douglas Eisner, Humanitarian Intervention in the Post-Cold War Era, 11 B.U. INT'L L. J. 195 (1993); Jean-Pierre Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CAL. W. INT'L L.J. 203 (1974); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (R. Lillich ed., 1973); MICHAEL WALZER, JUST AND UNJUST WARS 101-08 (1977); F. Teson, An Inquiry into the Legitimacy of Humanitarian Intervention, LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185-214 (L. Damrosch & D. Sheffer eds., 1991); Richard B. Lillich, Forcible Self-Help By States to Protect Human Rights, 53 IOWA L. REV. 325 (1967); B. De Schutter, Humanitarian Intervention: A United Nations Task, 3 CAL. W. INT'L L. REV. 21 (1972); Thomas M. Frank & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); Thomas Behuniak, The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey, 79 MIL. L. REV. 157 (1978); H. Scott Fairley, State Actors, Humanitarian Intervention And International Law: Reopening Pandora's Box, 10 GA. J. INT'L & COMP. L. 29 (1980); Michael J. Bayzler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INT'L L. 547 (1987); Nigel S. Rodley, Human Rights and Humanitarian Intervention: The Case Law of the World Court, 38 INT'L & COMP. L.Q. 321 (1989); R. George Wright, A Contemporary Theory of Humanitarian Intervention, 4 FLA. J. INT'L L. 435 (1989); David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27 CORNELL INT'L L. J. 203 (1994); Barry M. Benjamin, Note, Unilateral Humanitarian Intervention: Legalizing the Use of Force To Prevent Human Rights Atrocities, 16 FORDHAM INT'L L.J. 120 (1992/1993).
    • (1978) Mil. L. Rev. , vol.79 , pp. 157
    • Behuniak, T.1
  • 202
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    • State actors, Humanitarian Intervention and International Law: Reopening Pandora's box
    • The legal literature on humanitarian intervention is far too extensive to completely list here. The recurring pattern of governments slaughtering their citizens has led many scholars to argue for a clear international rule allowing intervention in the otherwise sovereign affairs of other states based on gross, widespread violations of human rights by the government. See, e.g., Douglas Eisner, Humanitarian Intervention in the Post-Cold War Era, 11 B.U. INT'L L. J. 195 (1993); Jean-Pierre Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CAL. W. INT'L L.J. 203 (1974); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (R. Lillich ed., 1973); MICHAEL WALZER, JUST AND UNJUST WARS 101-08 (1977); F. Teson, An Inquiry into the Legitimacy of Humanitarian Intervention, LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185-214 (L. Damrosch & D. Sheffer eds., 1991); Richard B. Lillich, Forcible Self-Help By States to Protect Human Rights, 53 IOWA L. REV. 325 (1967); B. De Schutter, Humanitarian Intervention: A United Nations Task, 3 CAL. W. INT'L L. REV. 21 (1972); Thomas M. Frank & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); Thomas Behuniak, The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey, 79 MIL. L. REV. 157 (1978); H. Scott Fairley, State Actors, Humanitarian Intervention And International Law: Reopening Pandora's Box, 10 GA. J. INT'L & COMP. L. 29 (1980); Michael J. Bayzler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INT'L L. 547 (1987); Nigel S. Rodley, Human Rights and Humanitarian Intervention: The Case Law of the World Court, 38 INT'L & COMP. L.Q. 321 (1989); R. George Wright, A Contemporary Theory of Humanitarian Intervention, 4 FLA. J. INT'L L. 435 (1989); David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27 CORNELL INT'L L. J. 203 (1994); Barry M. Benjamin, Note, Unilateral Humanitarian Intervention: Legalizing the Use of Force To Prevent Human Rights Atrocities, 16 FORDHAM INT'L L.J. 120 (1992/1993).
    • (1980) Ga. J. Int'l & Comp. L. , vol.10 , pp. 29
    • Fairley, H.S.1
  • 203
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    • Reexamining the doctrine of humanitarian intervention in light of the atrocities in Kampuchea and Ethiopia
    • The legal literature on humanitarian intervention is far too extensive to completely list here. The recurring pattern of governments slaughtering their citizens has led many scholars to argue for a clear international rule allowing intervention in the otherwise sovereign affairs of other states based on gross, widespread violations of human rights by the government. See, e.g., Douglas Eisner, Humanitarian Intervention in the Post-Cold War Era, 11 B.U. INT'L L. J. 195 (1993); Jean-Pierre Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CAL. W. INT'L L.J. 203 (1974); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (R. Lillich ed., 1973); MICHAEL WALZER, JUST AND UNJUST WARS 101-08 (1977); F. Teson, An Inquiry into the Legitimacy of Humanitarian Intervention, LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185-214 (L. Damrosch & D. Sheffer eds., 1991); Richard B. Lillich, Forcible Self-Help By States to Protect Human Rights, 53 IOWA L. REV. 325 (1967); B. De Schutter, Humanitarian Intervention: A United Nations Task, 3 CAL. W. INT'L L. REV. 21 (1972); Thomas M. Frank & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); Thomas Behuniak, The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey, 79 MIL. L. REV. 157 (1978); H. Scott Fairley, State Actors, Humanitarian Intervention And International Law: Reopening Pandora's Box, 10 GA. J. INT'L & COMP. L. 29 (1980); Michael J. Bayzler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INT'L L. 547 (1987); Nigel S. Rodley, Human Rights and Humanitarian Intervention: The Case Law of the World Court, 38 INT'L & COMP. L.Q. 321 (1989); R. George Wright, A Contemporary Theory of Humanitarian Intervention, 4 FLA. J. INT'L L. 435 (1989); David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27 CORNELL INT'L L. J. 203 (1994); Barry M. Benjamin, Note, Unilateral Humanitarian Intervention: Legalizing the Use of Force To Prevent Human Rights Atrocities, 16 FORDHAM INT'L L.J. 120 (1992/1993).
    • (1987) Stan. J. Int'l L. , vol.23 , pp. 547
    • Bayzler, M.J.1
  • 204
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    • Human rights and humanitarian intervention: The case law of the World Court
    • The legal literature on humanitarian intervention is far too extensive to completely list here. The recurring pattern of governments slaughtering their citizens has led many scholars to argue for a clear international rule allowing intervention in the otherwise sovereign affairs of other states based on gross, widespread violations of human rights by the government. See, e.g., Douglas Eisner, Humanitarian Intervention in the Post-Cold War Era, 11 B.U. INT'L L. J. 195 (1993); Jean-Pierre Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CAL. W. INT'L L.J. 203 (1974); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (R. Lillich ed., 1973); MICHAEL WALZER, JUST AND UNJUST WARS 101-08 (1977); F. Teson, An Inquiry into the Legitimacy of Humanitarian Intervention, LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185-214 (L. Damrosch & D. Sheffer eds., 1991); Richard B. Lillich, Forcible Self-Help By States to Protect Human Rights, 53 IOWA L. REV. 325 (1967); B. De Schutter, Humanitarian Intervention: A United Nations Task, 3 CAL. W. INT'L L. REV. 21 (1972); Thomas M. Frank & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); Thomas Behuniak, The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey, 79 MIL. L. REV. 157 (1978); H. Scott Fairley, State Actors, Humanitarian Intervention And International Law: Reopening Pandora's Box, 10 GA. J. INT'L & COMP. L. 29 (1980); Michael J. Bayzler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INT'L L. 547 (1987); Nigel S. Rodley, Human Rights and Humanitarian Intervention: The Case Law of the World Court, 38 INT'L & COMP. L.Q. 321 (1989); R. George Wright, A Contemporary Theory of Humanitarian Intervention, 4 FLA. J. INT'L L. 435 (1989); David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27 CORNELL INT'L L. J. 203 (1994); Barry M. Benjamin, Note, Unilateral Humanitarian Intervention: Legalizing the Use of Force To Prevent Human Rights Atrocities, 16 FORDHAM INT'L L.J. 120 (1992/1993).
    • (1989) Int'l & Comp. L.Q. , vol.38 , pp. 321
    • Rodley, N.S.1
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    • A contemporary theory of humanitarian intervention
    • The legal literature on humanitarian intervention is far too extensive to completely list here. The recurring pattern of governments slaughtering their citizens has led many scholars to argue for a clear international rule allowing intervention in the otherwise sovereign affairs of other states based on gross, widespread violations of human rights by the government. See, e.g., Douglas Eisner, Humanitarian Intervention in the Post-Cold War Era, 11 B.U. INT'L L. J. 195 (1993); Jean-Pierre Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CAL. W. INT'L L.J. 203 (1974); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (R. Lillich ed., 1973); MICHAEL WALZER, JUST AND UNJUST WARS 101-08 (1977); F. Teson, An Inquiry into the Legitimacy of Humanitarian Intervention, LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185-214 (L. Damrosch & D. Sheffer eds., 1991); Richard B. Lillich, Forcible Self-Help By States to Protect Human Rights, 53 IOWA L. REV. 325 (1967); B. De Schutter, Humanitarian Intervention: A United Nations Task, 3 CAL. W. INT'L L. REV. 21 (1972); Thomas M. Frank & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); Thomas Behuniak, The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey, 79 MIL. L. REV. 157 (1978); H. Scott Fairley, State Actors, Humanitarian Intervention And International Law: Reopening Pandora's Box, 10 GA. J. INT'L & COMP. L. 29 (1980); Michael J. Bayzler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INT'L L. 547 (1987); Nigel S. Rodley, Human Rights and Humanitarian Intervention: The Case Law of the World Court, 38 INT'L & COMP. L.Q. 321 (1989); R. George Wright, A Contemporary Theory of Humanitarian Intervention, 4 FLA. J. INT'L L. 435 (1989); David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27 CORNELL INT'L L. J. 203 (1994); Barry M. Benjamin, Note, Unilateral Humanitarian Intervention: Legalizing the Use of Force To Prevent Human Rights Atrocities, 16 FORDHAM INT'L L.J. 120 (1992/1993).
    • (1989) Fla. J. Int'l L. , vol.4 , pp. 435
    • Wright, R.G.1
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    • "Ethnic cleansing" in the Balkans: The legal foundations of foreign intervention
    • Note
    • The legal literature on humanitarian intervention is far too extensive to completely list here. The recurring pattern of governments slaughtering their citizens has led many scholars to argue for a clear international rule allowing intervention in the otherwise sovereign affairs of other states based on gross, widespread violations of human rights by the government. See, e.g., Douglas Eisner, Humanitarian Intervention in the Post-Cold War Era, 11 B.U. INT'L L. J. 195 (1993); Jean-Pierre Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CAL. W. INT'L L.J. 203 (1974); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (R. Lillich ed., 1973); MICHAEL WALZER, JUST AND UNJUST WARS 101-08 (1977); F. Teson, An Inquiry into the Legitimacy of Humanitarian Intervention, LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185-214 (L. Damrosch & D. Sheffer eds., 1991); Richard B. Lillich, Forcible Self-Help By States to Protect Human Rights, 53 IOWA L. REV. 325 (1967); B. De Schutter, Humanitarian Intervention: A United Nations Task, 3 CAL. W. INT'L L. REV. 21 (1972); Thomas M. Frank & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); Thomas Behuniak, The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey, 79 MIL. L. REV. 157 (1978); H. Scott Fairley, State Actors, Humanitarian Intervention And International Law: Reopening Pandora's Box, 10 GA. J. INT'L & COMP. L. 29 (1980); Michael J. Bayzler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INT'L L. 547 (1987); Nigel S. Rodley, Human Rights and Humanitarian Intervention: The Case Law of the World Court, 38 INT'L & COMP. L.Q. 321 (1989); R. George Wright, A Contemporary Theory of Humanitarian Intervention, 4 FLA. J. INT'L L. 435 (1989); David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27 CORNELL INT'L L. J. 203 (1994); Barry M. Benjamin, Note, Unilateral Humanitarian Intervention: Legalizing the Use of Force To Prevent Human Rights Atrocities, 16 FORDHAM INT'L L.J. 120 (1992/1993).
    • (1994) Cornell Int'l L. J. , vol.27 , pp. 203
    • Kresock, D.M.1
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    • Unilateral humanitarian intervention: Legalizing the use of force to prevent human rights atrocities
    • Note
    • The legal literature on humanitarian intervention is far too extensive to completely list here. The recurring pattern of governments slaughtering their citizens has led many scholars to argue for a clear international rule allowing intervention in the otherwise sovereign affairs of other states based on gross, widespread violations of human rights by the government. See, e.g., Douglas Eisner, Humanitarian Intervention in the Post-Cold War Era, 11 B.U. INT'L L. J. 195 (1993); Jean-Pierre Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CAL. W. INT'L L.J. 203 (1974); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (R. Lillich ed., 1973); MICHAEL WALZER, JUST AND UNJUST WARS 101-08 (1977); F. Teson, An Inquiry into the Legitimacy of Humanitarian Intervention, LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185-214 (L. Damrosch & D. Sheffer eds., 1991); Richard B. Lillich, Forcible Self-Help By States to Protect Human Rights, 53 IOWA L. REV. 325 (1967); B. De Schutter, Humanitarian Intervention: A United Nations Task, 3 CAL. W. INT'L L. REV. 21 (1972); Thomas M. Frank & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); Thomas Behuniak, The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey, 79 MIL. L. REV. 157 (1978); H. Scott Fairley, State Actors, Humanitarian Intervention And International Law: Reopening Pandora's Box, 10 GA. J. INT'L & COMP. L. 29 (1980); Michael J. Bayzler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INT'L L. 547 (1987); Nigel S. Rodley, Human Rights and Humanitarian Intervention: The Case Law of the World Court, 38 INT'L & COMP. L.Q. 321 (1989); R. George Wright, A Contemporary Theory of Humanitarian Intervention, 4 FLA. J. INT'L L. 435 (1989); David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27 CORNELL INT'L L. J. 203 (1994); Barry M. Benjamin, Note, Unilateral Humanitarian Intervention: Legalizing the Use of Force To Prevent Human Rights Atrocities, 16 FORDHAM INT'L L.J. 120 (1992/1993).
    • (1992) Fordham Int'l L.J. , vol.16 , pp. 120
    • Benjamin, B.M.1
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    • Genocide treaty-ethnic cleansing-substantive and procedural hurdles in the application of the genocide convention to alleged crimes in the former Yugoslavia
    • n.49
    • The term genocide derives from the Greek words genos (meaning race) and cide (meaning killing). Dr. Raphael Lemkin introduced the phrase in response to Winston Churchill's comment that Nazi crimes in Poland did not have a name. John Webb, Genocide Treaty-Ethnic Cleansing-Substantive and Procedural Hurdles in The Application of The Genocide Convention To Alleged Crimes in the Former Yugoslavia, 23 GA. J. INT'L & COMP. L. 377, 387 n.49 (1993).
    • (1993) Ga. J. Int'l & Comp. L. , vol.23 , pp. 377
    • Webb, J.1
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    • note
    • Some estimates range as high as 8 million victims. OPPENHEIM, supra note 78, § 340p; 8 IMT, supra note 2, at 330 (340,000 victims were exterminated at Helmno, 781,000 at Treblinka); 22 IMT, supra note 2, at 496 (six million Jews were murdered by the Nazis, four million of which died in concentration camps).
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    • The Nuremberg legacy: An unfulfilled promise
    • Note
    • Steven Fogelson, Note, The Nuremberg Legacy: An Unfulfilled Promise, 63 S. CAL. L. REV. 833, 834 (1990).
    • (1990) S. Cal. L. Rev. , vol.63 , pp. 833
    • Fogelson, S.1
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    • G.A. Res. 96(I), U.N. Doc. A/231 (1946)
    • G.A. Res. 96(I), U.N. Doc. A/231 (1946).
  • 212
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    • See infra note 11
    • See infra note 11.
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    • 99th Cong., 1st Sess.
    • President Truman transmitted the Convention to the Senate for its advice and consent on 9 December 1948. The Senate held hearings on the Convention in 1950. On 19 February 1986, the Senate gave its advice and consent to the Convention by a vote of 83 yeas to 11 nays with 6 absences. The Senate's consent is subject to two understandings, five reservations, and one declaration, 32 CONG. REC. 15, S1377-78. For a detailed analysis of each section of the Convention and the effect of the reservations and understanding on each section, see Crime of Genocide: Hearing before Sen. Comm. on For. Rel. on the Prevention and Punishment of the Crime of Genocide, 99th Cong., 1st Sess. (1985); Senate Committee on Foreign Relations, Report of the International Convention for the Prevention and Punishment of the Crime of Genocide, EXEC. RPT. No. 2, 99th Cong., 1st Sess. (1985), reprinted in 28 I.L.M. 760 (1989). As of this writing, 120 countries have ratified the Genocide Convention. DEP'T OF STATE, TREATIES IN FORCE 358-9 (1995). Of particular note, Yugoslavia was one of the first nations to ratify the instrument on 29 August 1950, reprinted in 28 I.L.M. 779 (1989).
    • (1985) Crime of Genocide: Hearing before Sen. Comm. on For. Rel. on the Prevention and Punishment of the Crime of Genocide
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    • 0042442038 scopus 로고
    • EXEC. RPT. No. 2, 99th Cong., 1st Sess. (1985), reprinted in 28 I.L.M. 760 (1989). reprinted in 28 I.L.M. 779
    • President Truman transmitted the Convention to the Senate for its advice and consent on 9 December 1948. The Senate held hearings on the Convention in 1950. On 19 February 1986, the Senate gave its advice and consent to the Convention by a vote of 83 yeas to 11 nays with 6 absences. The Senate's consent is subject to two understandings, five reservations, and one declaration, 32 CONG. REC. 15, S1377-78. For a detailed analysis of each section of the Convention and the effect of the reservations and understanding on each section, see Crime of Genocide: Hearing before Sen. Comm. on For. Rel. on the Prevention and Punishment of the Crime of Genocide, 99th Cong., 1st Sess. (1985); Senate Committee on Foreign Relations, Report of the International Convention for the Prevention and Punishment of the Crime of Genocide, EXEC. RPT. No. 2, 99th Cong., 1st Sess. (1985), reprinted in 28 I.L.M. 760 (1989). As of this writing, 120 countries have ratified the Genocide Convention. DEP'T OF STATE, TREATIES IN FORCE 358-9 (1995). Of particular note, Yugoslavia was one of the first nations to ratify the instrument on 29 August 1950, reprinted in 28 I.L.M. 779 (1989).
    • (1989) Senate Committee on Foreign Relations, Report of the International Convention for the Prevention and Punishment of the Crime of Genocide
  • 215
    • 84923720175 scopus 로고    scopus 로고
    • note
    • Genocide Convention, supra note 11, art. 1. Pursuant to the obligation under article V of the Convention, President Reagan signed the Genocide Convention Implementation Act of 1987, Pub. L. No. 100-606, 102 Stat. 3045 (Nov. 4, 1988), codified at 18 U.S.C. §§ 1091-93 (1995), reprinted in 28 I.L.M. 754 (1989) (restating the definitions and prohibitions of articles III and IV of the Convention). President Reagan commented that nations of the world came together and drafted the Genocide Convention as a howl of anguish and an effort to prevent and punish future acts of genocide. 89 DEP'T OF STATE BULLETIN 38 (Jan. 1, 1989). The statutory implementation limits United States jurisdiction to offenses occurring within the United States or committed by a United States citizen, and specifically states that there is no statute of limitations for the Crime of Genocide.
  • 216
    • 84923720166 scopus 로고    scopus 로고
    • note
    • London Charter, supra note 12, art. 6(c). The International Tribunal decided to restrict its examination only to acts listed in Article 6(c) which had taken place after the beginning of the war. Expanding the inquiry to acts prior to the war would have been an unprecedented recognition of fundamental human rights. Prosecuting human rights violations would have been an intervention in the territorial and political sovereignty of states which the Tribunal was unprepared to take. VON GLAHN supra note 94, at 885. As this article points out, the evolution on international law in the intervening fifty years has clarified the jurisdiction of international tribunals over criminal violations of human rights law. As used in this article, the term continuum crimes denotes law of war violations during international armed conflicts, as well as violations of international law which occur during internal armed conflicts or other types of peace operations. See infra notes 298-347 for the substantive scope of continuum crimes.
  • 217
    • 84923720164 scopus 로고    scopus 로고
    • Genocide Convention, supra note 11, art 1
    • Genocide Convention, supra note 11, art 1.
  • 218
    • 84923720162 scopus 로고    scopus 로고
    • note
    • Article II of the Convention states: In the Present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group, (b) Causing serious bodily or mental harm to members of the group, (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, (d) Imposing measures intended to prevent births from within the group, (e) Forcibly transferring children of the group to another group. Article III states that the following acts shall be punishable: Genocide, Conspiracy to commit Genocide, Direct and Public Incitement to Commit Genocide, Attempt to commit genocide, Complicity to genocide. Genocide Convention, supra note 11, arts. II, III.
  • 219
    • 84923720161 scopus 로고    scopus 로고
    • note
    • Article IV of the Convention states that: Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials, or private individuals. Id., art. IV.
  • 220
    • 0042942830 scopus 로고
    • International Law and the Holocaust
    • M. Cherif Bassiouni, International Law and the Holocaust, 9 CAL. W. INT'L L.J. 201, 251 (1979).
    • (1979) Cal. W. Int'l L.J. , vol.9 , pp. 201
    • Bassiouni, M.C.1
  • 221
    • 0042441987 scopus 로고
    • Genocide and International law: Is there a cause of action?
    • See Paul Starkman, Genocide and International Law: Is There a Cause of Action?, 8 ASILS INT'L L.J. 1 (1984) (describing the persecution of the Buddhist population of Tibet by The People's Republic of China in 1959 and 1969); David Scheffer, Toward a Modern Doctrine of Humanitarian Intervention, 23 U. TOL. L. REV. 253 n.4 (1992) (describing the Iraqi aggression against Kurdish and Shiite minorities which killed thousands and displaced millions of citizens, as well as summarizing a series of genodical campaigns for a variety of reasons by governments all over the world).
    • (1984) Asils Int'l L.J. , vol.8 , pp. 1
    • Starkman, P.1
  • 222
    • 0009170271 scopus 로고
    • Toward a modern doctrine of humanitarian intervention
    • n.4
    • See Paul Starkman, Genocide and International Law: Is There a Cause of Action?, 8 ASILS INT'L L.J. 1 (1984) (describing the persecution of the Buddhist population of Tibet by The People's Republic of China in 1959 and 1969); David Scheffer, Toward a Modern Doctrine of Humanitarian Intervention, 23 U. TOL. L. REV. 253 n.4 (1992) (describing the Iraqi aggression against Kurdish and Shiite minorities which killed thousands and displaced millions of citizens, as well as summarizing a series of genodical campaigns for a variety of reasons by governments all over the world).
    • (1992) U. Tol. L. Rev. , vol.23 , pp. 253
    • Scheffer, D.1
  • 223
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    • The applicability of the genocide convention to government imposed famine in Eritrea
    • See Jean E. Zeiler, The Applicability of the Genocide Convention to Government Imposed Famine in Eritrea, 19 GA. J. INT'L & COMP. L. 5899 (1989) (describing a "deliberate, genocidal attempt" by the government of Ethiopia to starve the Eritrean people into submission, as well as efforts by the government of Paraguay to exterminate the Ache Indian population); German Parliament Wants Serbs Branded for Genocide, THE REUTERS LIB. REP. (July 2, 1992) (describing the difficulties implementing the Convention even in extreme
    • (1989) Ga. J. Int'l & Comp. L. , vol.19 , pp. 5899
    • Zeiler, J.E.1
  • 224
    • 0042442042 scopus 로고
    • German parliament wants serbs branded for genocide
    • July 2
    • See Jean E. Zeiler, The Applicability of the Genocide Convention to Government Imposed Famine in Eritrea, 19 GA. J. INT'L & COMP. L. 5899 (1989) (describing a "deliberate, genocidal attempt" by the government of Ethiopia to starve the Eritrean people into submission, as well as efforts by the government of Paraguay to exterminate the Ache Indian population); German Parliament Wants Serbs Branded for Genocide, THE REUTERS LIB. REP. (July 2, 1992) (describing the difficulties implementing the Convention even in extreme cases such as that in Cambodia where the government murdered millions of its citizens).
    • (1992) The Reuters Lib. Rep.
  • 225
    • 0041439691 scopus 로고
    • The use of force in international relations: Norms concerning the initiation of coercion
    • JOHN N. MOORE ET AL.
    • John N. Moore, The Use of Force in International Relations: Norms Concerning the Initiation of Coercion, in JOHN N. MOORE ET AL., NATIONAL SECURITY LAW 85-192, 162 (1990) (citing estimates that official genocide in Cambodia killed between one and two million citizens in a span of two years).
    • (1990) National Security Law , pp. 85-192
    • Moore, J.N.1
  • 226
    • 84923720160 scopus 로고    scopus 로고
    • 3 U.N. GAOR C.6, 73d mtg., at 12, U.N. Doc. A/C.6/SR 73 (1948)
    • 3 U.N. GAOR C.6, 73d mtg., at 12, U.N. Doc. A/C.6/SR 73 (1948).
  • 227
    • 84923720159 scopus 로고    scopus 로고
    • note
    • Genocide Convention, supra note 11, art. VI. A literal reading of this provision would restrict a domestic court from applying its own law to one of its citizens who committed genocide outside its borders. The United States has an understanding that an American citizen who commits genocide abroad will be prosecuted in federal court under American law, and the United States Code implements that understanding. See 18 U.S.C. § 1091(d) (1995).
  • 228
    • 84923720158 scopus 로고    scopus 로고
    • OPPENHEIM, supra note 78, § 340p.
    • OPPENHEIM, supra note 78, § 340p.
  • 229
    • 84923720157 scopus 로고    scopus 로고
    • note
    • Jus cogens are the peremptory norms of international law; e.g., "Such [peremptory] norms, often referred to as jus cogens (or 'compelling law'), enjoy the highest status in international law . . . ." Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 935 (D.C. Cir. 1988).
  • 230
    • 84923720156 scopus 로고    scopus 로고
    • Letter dated 9 December 1994 From the Secretary General Addressed to the President of the Security Council, U.N. Doc. S/1994/1405 (1994) (containing an Annex which prints the Final Report of the Commission of Experts Established Pursuant to Resolution 93) [hereinafter Rwanda Commission], and an Appendix which sets out a Statute for an international tribunal for Rwanda) (available at http://gopher. undp.org:70/00/uncurr/sgrep/94_12/1405). The Commission of Experts documented "overwhelming evidence of genocide," and specified that genocide has attained jus cogens status as an international crime. Rwanda Commission, supra, ¶ 152.
  • 231
    • 77952045341 scopus 로고    scopus 로고
    • supra note 12, § 404; Starkman, supra note 160
    • RESTATEMENT, supra note 12, § 404; Starkman, supra note 160, at 49.
    • Restatement , pp. 49
  • 232
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    • Settling accounts: The duty to prosecute human rights violations of a prior regime
    • n.105
    • See Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537, at 2563 n.105 (1991).
    • (1991) Yale L.J. , vol.100 , pp. 2537
    • Orentlicher, D.F.1
  • 233
    • 84923720155 scopus 로고    scopus 로고
    • note
    • Article I imposes a duty to "prevent" genocide "in time of peace or war." Genocide Convention, supra note 11, art. 1. See also U.N. Charter arts. 55(c), 56 (obligation to respect and ensure respect for human rights); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugo. (Serbia and Montenegro)), 1993 I.C.J. 3, ¶ 52(A)(1) (Apr. 8, 1993) ("should immediately . . . take all measures within its power to prevent commission of the crime of genocide"); G.A. Res. 3071, U.N. GAOR, 28th Sess., Supp. No. 30, at 78, U.N. Doc. A/9030 (1973) ("shall cooperate . . . with a view to halting and preventing . . . crimes against humanity, and take the domestic and international remedies necessary for that purpose").
  • 234
    • 0042942774 scopus 로고
    • Background notes: United Nations
    • July 17
    • Background Notes: United Nations, 6 DEP'T OF STATE DISPATCH 570, 572 (July 17, 1995) (listing the operations initiated since 1991 in the Middle East (UNIKOM), Africa (UNTAG and MINURSO), Cambodia (UNAMIC and UNTAC), the former Yugoslavia (UNPROFOR and IFOR), Chad (UNASOG), Mozambique (ONUMOZ), Rwanda (UNAMIR/UNOMUR), Somalia (UNOSOM II), El Salvador (ONUSAL), Liberia (UNOMIL), Georgia (UNOMIG), Haiti (UNMIH), Tajikistan (UNMOT), and Angola (UNAVEM)).
    • (1995) Dep't Of State Dispatch , vol.6 , pp. 570
  • 235
    • 0042441993 scopus 로고
    • S. REP. NO. 45, 103d Cong., 1st Sess.
    • Civilian police from twenty-five different countries deployed to Namibia in support in UNTAG, and 3600 deployed to Cambodia in support of UNTAC. Based on these experiences, the United Nations deployed civilian police to support both UNPROFOR (Bosnia and Croatia) and UNOSOM (Somalia). Reform of United States Peacekeeping Operations: A Mandate for Change, S. REP. NO. 45, 103d Cong., 1st Sess., at 22-29 (1993).
    • (1993) Reform of United States Peacekeeping Operations: A Mandate for Change , pp. 22-29
  • 236
    • 84923720146 scopus 로고    scopus 로고
    • note
    • See S.C. Res. 808, U.N. SCOR, 3175th mtg., U.N. Doc. S/RES/808 (1993) (recommending an international tribunal to try crimes committed in the former Yugoslavia); UNITED NATIONS, REPORT OF THE SECRETARY-GENERAL PURSUANT TO PARAGRAPH 2 OF SECURITY COUNCIL RESOLUTION 808 (1993), U.N. Doc. S/25704 and Annex (May 3, 1993), reprinted in 32 I.L.M. 1159 (1993) (including a proposed statute for the International Tribunal for the Prosecution of War Crimes in the Former Yugoslavia) [hereinafter Report of the Secretary General will refer to the body of the report and Statute of the International Tribunal will refer to the annexed statute]; Rwanda Statute, supra note 105.
  • 237
    • 84923720144 scopus 로고    scopus 로고
    • note
    • S.C. Res. 997, U.N. SCOR, 50th Sess., 3542d mtg., U.N. Doc. S/RES/997 (1995) (adjusting the UNAMIR mandate). Congress implicitly recognized the need for increased United States efforts in this regard with a specific provision of the Foreign Operations, Export Financing, and Related Programs Appropriations Act for Fiscal Year 1996. Congress amended § 660(b) of the Foreign Assistance Act, to allow United States military forces to assist efforts to "reconstitute civilian police authority and capability in post-conflict restoration of host nation infrastructure for the purpose of supporting a nation emerging from instability." Foreign Operations, Export Financing, and Related Programs Appropriations Act, Fiscal Year 1996, Pub. L. No. 104-107, § 540A(d), 110 Stat. 704 (1996), to be codified at 22 U.S.C. § 2420.
  • 238
    • 84923720142 scopus 로고    scopus 로고
    • note
    • S.C. Res. 918, U.N. SCOR, 49th Sess., 3377th mtg., U.N. Doc. S/RES/818 (1994), reprinted in 5 DEP'T OF STATE DISPATCH 352 (May 30, 1994) (expanding the UNOMIR mission to use all resources available to it to contribute to the security and protection of displaced persons, refugees, and civilians at risk in Rwanda, including through the establishment and maintenance, where feasible of secure humanitarian areas); S.C. Res. 925, U.N. SCOR., 49th Sess., 3388th mtg., U.N. Doc. S/RES/925 (1994) (authorizing additional forces for UNAMIR and recognizing that those forces may need to use force in pursuit of Security Council objectives); S.C. Res. 819, U.N. SCOR, 48th Sess., 3199th mtg., U.N. Doc. S/RES/819 (1993) ("all parties . . . concerned treat Srebinica and its surrounding areas as a safe area which should be free from armed attack or any other hostile act"). See also 30 U.N. Chronicle 12, Sept. 1993 (discussing S.C. Res. 824 which expanded "safe area" protections to Sarajevo, Tuzla, Gorazde, Zepa, and Bihac).
  • 239
    • 84923720141 scopus 로고    scopus 로고
    • note
    • FM 100-5, supra note 16, at 3-7; S.C. Res. 929, U.N. SCOR, 49th Sess., 3392nd mtg., U.N. Doc. S/RES/929 (1994) (allowing "all necessary means" for UNAMIR to implement the goals of Security Council Resolution 925 in Rwanda); Res. 940, supra note 22 (authorizing "all necessary means" for the multinational force operating inside Haiti on Operation Uphold Democracy); S.C. Res. 770, U.N. SCOR, 47th Sess., 3106th mtg., U.N. Doc., S/RES/770 (1992) ("all measures necessary" to facilitate the delivery of humanitarian assistance to Bosnia-Herzegovina).
  • 240
    • 84937296306 scopus 로고
    • Protecting peacekeepers: The convention on the safety of United Nations and associated personnel
    • n.3 hereinafter Protecting Peacekeepers
    • The Secretary-General of the United Nations observed that "[t]he number of fatalities among United Nations military contingents has also dramatically increased during the past two years [1992-1994]. While the grand total for all past and ongoing missions amounts to 1074 fatalities, in 1993 alone 202 personnel were killed." Note by the Secretary-General, U.N. Doc. A/AC. 242/1 (1994), quoted in Protecting Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel, 89 AM. J. INT'L L. 621, 622 n.3 (1995) [hereinafter Protecting Peacekeepers]. The dangers are not limited to military forces. In 1994, 65 United Nations civilians died worldwide, mostly in Rwanda. Peter Hansen, Humanitarian Aid on an International Scope, THE CHRIST. SCI. MON., Aug. 15, 1995, at A1. Since 1985, the International Committee of the Red Cross has had 48 employees killed and another 147 simply disappear. Id. At the time of this writing, attacks against United Nations agency staff and non-governmental agencies working inside Burundi have virtually halted humanitarian assistance in that country. Letter dated 16 January 1996 From the Secretary-General to the President of The Security Council, U.N. Doc. S/1996/36 (Jan. 17, 1996).
    • (1995) Am. J. Int'l L. , vol.89 , pp. 621
  • 241
    • 4243533990 scopus 로고
    • Humanitarian aid on an International Scope
    • Aug. 15
    • The Secretary-General of the United Nations observed that "[t]he number of fatalities among United Nations military contingents has also dramatically increased during the past two years [1992-1994]. While the grand total for all past and ongoing missions amounts to 1074 fatalities, in 1993 alone 202 personnel were killed." Note by the Secretary-General, U.N. Doc. A/AC. 242/1 (1994), quoted in Protecting Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel, 89 AM. J. INT'L L. 621, 622 n.3 (1995) [hereinafter Protecting Peacekeepers]. The dangers are not limited to military forces. In 1994, 65 United Nations civilians died worldwide, mostly in Rwanda. Peter Hansen, Humanitarian Aid on an International Scope, THE CHRIST. SCI. MON., Aug. 15, 1995, at A1. Since 1985, the International Committee of the Red Cross has had 48 employees killed and another 147 simply disappear. Id. At the time of this writing, attacks against United Nations agency staff and non-governmental agencies working inside Burundi have virtually halted humanitarian assistance in that country. Letter dated 16 January 1996 From the Secretary-General to the President of The Security Council, U.N. Doc. S/1996/36 (Jan. 17, 1996).
    • (1995) The Christ. Sci. Mon.
    • Hansen, P.1
  • 242
    • 84923720140 scopus 로고    scopus 로고
    • note
    • Convention on the Protection of United Nations Persons and Associated Personnel, opened for signature Dec. 15, 1994, G.A. Res. 49/59, U.N. Doc. A/49/742 (Dec. 9. 1994), reprinted in 34 I.L.M. 482 (1995)[hereinafter Safety Convention].
  • 243
    • 84923711874 scopus 로고    scopus 로고
    • supra note 177
    • Protecting Peacekeepers, supra note 177, at 623. This includes military forces supporting Security Council objectives, as well as civilian officials and experts on mission of the United Nations or one of its specialized agencies or the International Atomic Energy Agency (IAEA) who are present in an official capacity in the area of a United Nations operation. As an aside, this Convention may also be a tool for controlling nuclear terrorism by prosecuting persons who interfere with or threaten IAEA employees attempting to perform their monitoring and reporting duties.
    • Protecting Peacekeepers , pp. 623
  • 244
    • 84923720139 scopus 로고    scopus 로고
    • note
    • This is an important category because it includes United States Armed Forces who are not under the control of the United Nations, but whose deployment authority arises from mandates of the Security Council exercising its Chapter VII enforcement powers. This would include NATO forces supporting UNPROFOR, and the current IFOR deployed on Operation Joint Endeavor in Bosnia, as well as the Multinational Force operating inside Haiti prior to the time that the United Nations assumed control of the situation with UNMIH, and United States assistance in Somalia under the UNITAF. At the time of this writing, attacks against United Nations agency staff and Non-governmental agencies working inside Burundi have brought humanitarian assistance to a virtual halt in that country. The Secretary-General has concluded that these attacks violate the Convention and asked for enforcement of its provisions. Letter dated 16 January 1996 From the Secretary-General to the President of The Security Council, U.N. Doc. S/1996/36 (Jan. 17, 1996).
  • 245
    • 84923711874 scopus 로고    scopus 로고
    • supra note 177, n.7.
    • Protecting Peacekeepers, supra note 177, at 622 n.7. At this time, 43 states have signed the Convention, and 4 have become Parties. For a current list of signatories and accession dates See http://www.un.org.Depts /Treaty/bible/Part_1_E/ XVIII_8.html.
    • Protecting Peacekeepers , pp. 622
  • 246
    • 84923720138 scopus 로고    scopus 로고
    • note
    • See supra note 4. Article 2 Common to the four Geneva Conventions provides the basis for application of the Conventions to international armed conflicts: In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if a state of war is not recognized by one of them. The Convention shall also apply to all cases of total or partial occupation of the territory of the High Contracting Party, even if the said occupation meets with no armed resistance.
  • 247
    • 84923720137 scopus 로고    scopus 로고
    • note
    • Article 9 prohibits the "intentional commission" of murder, kidnapping or other attack upon the person or liberty of any United Nations or associated personnel. Article 9 also lists the following violations of the Convention: A violent attack upon the official premises, the private accommodation or the means of transportation of any United Nations or associated personnel likely to endanger his or her person or liberty; A threat to commit any such attack with the objective of compelling a physical or juridical person to refrain from doing any act; An attempt to commit any such attack; and An act constituting participation as an accomplice in any such attack, or in an attempt to commit such attack, or in organizing or ordering others to commit such attack. Safety Convention, supra note 178, art. 9.
  • 248
    • 84923720136 scopus 로고    scopus 로고
    • Id. art. 2, para. 2
    • Id. art. 2, para. 2.
  • 249
    • 84923720135 scopus 로고    scopus 로고
    • FM 100-23, supra note 16, at 2
    • FM 100-23, supra note 16, at 2.
  • 250
    • 84923720126 scopus 로고    scopus 로고
    • note
    • United States Mission to The United Nations, Press Release No. 217-94 (Dec. 9, 1994).
  • 251
    • 84923720124 scopus 로고    scopus 로고
    • note
    • Safety Convention, supra note 178, art. 10 reads as follows: 1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set out in article 9 in the following cases: (a) When the crime is committed in the territory of that State or on board a ship or aircraft registered in that State; (b) When the alleged offender is a national of that State. 2. A State Party may also establish its jurisdiction over any such crime when it is committed: (a) By a stateless person whose habitual residence is in that State; or (b) With respect to a national of that State; or (c) In an attempt to compel that State to do or abstain from doing any act. 3. Any State which has established jurisdiction s mentioned in paragraph 2 shall notify the Secretary-General of the United Nations. If such State Party subsequently rescinds that jurisdiction, it shall notify the Secretary-General of the United Nations. 4. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set out in article 9 in cases where the alleged offender is present in its territory and it does not extradite such person pursuant to article 15 to any of the States Parties which have established their jurisdiction in accordance with paragraph 1 or 2. 5. This Convention does not exclude any criminal jurisdiction exercised in accordance with national law.
  • 252
    • 84923720122 scopus 로고    scopus 로고
    • note
    • FM 100-23, supra note 16, at 16-17 ("The inherent right of self defense, from unit to individual level, applies in all peace operations at all times."). Commanders should be constantly ready to prevent, preempt, or counter activity that could bring significant harm to units or jeopardize mission accomplishment. In peace operations, commanders should not be lulled into believing that the nonhostile intent of their mission protects their force. Id.
  • 253
    • 84923726282 scopus 로고
    • Major fears Bosnia tragedy bloodbath warning as tory pressure for pullout grows
    • May 31
    • Chris Mclaughlin, et al., Major Fears Bosnia Tragedy Bloodbath Warning as Tory Pressure for Pullout Grows, THE SCOTSMAN, May 31, 1995, at 1.
    • (1995) The Scotsman , pp. 1
    • McLaughlin, C.1
  • 254
    • 0041941120 scopus 로고
    • Defiant serbs round up more UN hostages
    • May 29
    • Tom Hundley, Defiant Serbs Round Up More UN Hostages, CHI. TRIB, May 29, 1995, at 1.
    • (1995) Chi. Trib , pp. 1
    • Hundley, T.1
  • 255
    • 4243729823 scopus 로고
    • Anybody who moved or screamed was killed; thousands massacred on Bosnia trek in July
    • Oct. 26
    • Michael Dobbs & Christine Spolar, Anybody Who Moved or Screamed Was Killed; Thousands Massacred on Bosnia Trek in July, WASH. POST, Oct. 26, 1995. at A1.
    • (1995) Wash. Post
    • Dobbs, M.1    Spolar, C.2
  • 256
    • 84923720121 scopus 로고    scopus 로고
    • note
    • Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, G.A. Res. 39/46, 38 U.N. GAOR, Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) [hereinafter Torture Convention). After the Torture Convention came into force for the United States on 20 November 1994, the State Department designated it as Treaty Doc. 100-20. See also Inter-American Convention to Prevent and Punish Torture, Dec. 9, 1985, 67 O.A.S.T.S., reprinted in 25 I.L.M. 519 (1986).
  • 257
    • 84923720120 scopus 로고    scopus 로고
    • note
    • Universal Declaration of Human Rights, G.A. Res. 217 A(III), Dec. 10, 1948, U.N. Doc. A/810, art. 5 (1948), reprinted in 5 MARJORIE WHITEMAN, DIGEST OF INTERNATIONAL LAW 237-42 (1965) [hereinafter Universal Declaration].
  • 258
    • 84923720119 scopus 로고    scopus 로고
    • Convention on Prisoners of War, supra note 4, art. 87
    • Convention on Prisoners of War, supra note 4, art. 87.
  • 259
    • 84923720118 scopus 로고    scopus 로고
    • Civilians Convention, supra note 4, arts. 31, 32
    • Civilians Convention, supra note 4, arts. 31, 32.
  • 260
    • 84923720117 scopus 로고    scopus 로고
    • note
    • International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), Dec. 16, 1966, 21 GAOR, Supp. No. 16, at 52, U.N. Doc. A/6316, 999 U.N.T.S. 171, entered into force March 23, 1976.
  • 261
    • 84923720116 scopus 로고    scopus 로고
    • note
    • See, e.g., American Convention on Human Rights, Nov. 22, 1969, O.A.S. Treaty Series No. 36, art. 5, ¶ 2, OEA/Ser. L./V/II.23 doc. rev. 2, entered into force July 18, 1978; European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, art. 3, entered into force Sept. 3, 1953, as amended by Protocol No. 3, entered into force Sept. 21, 1970, and Protocol No. 5, entered into force Dec. 21, 1971; African [Banjul] Charter on Human and People's Rights, O.A.U. Doc. CAB/LEG/67/3 rev 5, arts, 4, 5, June 27, 1981, reprinted in 21 I.L.M. 58 (1982).
  • 262
    • 84923720115 scopus 로고    scopus 로고
    • Torture Convention, supra note 192, art. 1
    • Torture Convention, supra note 192, art. 1.
  • 263
    • 84923720106 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 264
    • 84923720104 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 265
    • 84923720102 scopus 로고    scopus 로고
    • Id. art. 2
    • Id. art. 2.
  • 267
    • 0042942822 scopus 로고
    • Convention against torture and other cruel, inhuman or degrading treatment or punishment
    • EXEC. REP. NO. 30, 101st Cong. 2d Sess., at 20 (1990)
    • Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, EXEC. REP. NO. 30, 101st Cong. 2d Sess., at 20 (1990) (containing an excellent description of the United States position regarding every article of the Convention, and reproducing the text of Resolution of Ratification at 29-31). Congress identified a range of offenses already prohibited by federal and state law which would violate the terms of the Convention. DEP'T OF STATE, 1 CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-1988, 833-34 (1993).
    • (1993) Cumulative Digest of United States Practice in International Law , vol.1 , pp. 1981-1988
  • 268
    • 84923720101 scopus 로고    scopus 로고
    • note
    • Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Pub. L. No. 103-236, Title V, § 506, 108 Stat. 382 (1994), codified at 18 U.S.C.A. § 2340A(b) (West 1984 and Supp.). The implementing legislation contained key definitions of terms for the purposes of federal criminal law (codified at 18 U.S.C. § 2340), extended the statute of limitations for torture to 20 years (codified at 18 U.S.C. § 3286), enacted statutory punishments (codified at 18 U.S.C. § 2340A(a)), and specified that the implementing statutes did not prevent the application of State and local laws to criminal offenses which might also fit the definition of torture (codified at 18 U.S.C. § 2340B).
  • 269
    • 84923720100 scopus 로고    scopus 로고
    • Torture Convention, supra note 192, art. 5(1)(c)
    • Torture Convention, supra note 192, art. 5(1)(c).
  • 270
    • 26344441691 scopus 로고
    • 2 Slain hostages buried as heroes; families, friends ask that Buckley, Higgins not be forgotten
    • Dec. 31
    • Gunmen abducted Lieutenant Colonel William Richard Higgins as he left for work on 16 March 1984. Colonel Higgins served as the head of a 75-member United Nations peacekeeping contingent serving in Lebanon. The Islamic Jihad claimed to have killed Higgins in October 1985 in retaliation for an Israeli air raid. A group calling itself the Organization of the Oppressed on Earth claimed it executed Higgins on 31 July 1989, and released a videotape of his hanging body. His captors dumped the body on the side of a road in December 1991, and an autopsy showed that he died while being tortured. Brooke A. Masters & James Naughton, 2 Slain Hostages Buried as Heroes; Families, Friends Ask That Buckley, Higgins Not Be Forgotten, WASH. POST, Dec. 31, 1991, at A1. In the context of prosecuting continuum crimes, the plea of Colonel Higgins wife bears repeating, "If we forgive, if we forget, if we thank these savages, then we are merely inviting them, at a time and place they select, to kill again. Shame on us if we do." Id.
    • (1991) Wash. Post
    • Masters, B.A.1    Naughton, J.2
  • 271
    • 84923720099 scopus 로고    scopus 로고
    • H.R. CONF. REP. NO. 482, 103d Cong., 2d Sess. (1994)
    • H.R. CONF. REP. NO. 482, 103d Cong., 2d Sess. (1994).
  • 272
    • 84923720098 scopus 로고    scopus 로고
    • note
    • Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Pub. L. No. 103-236, 1994 U.S.C.C.A.N. (108 Stat. 382) 302-517.
  • 273
    • 84923720097 scopus 로고    scopus 로고
    • note
    • In Somalia, United States armed forces concluded that the task of "facilitating the restoration of a police force (within legal parameters) and a judicial system was a requirement and a challenge." CENTER FOR ARMY LESSONS LEARNED, U.S. ARMY COMBINED ARMS COMMAND, OPERATION RESTORE HOPE LESSONS LEARNED REPORT (3 Dec. 1992-4 May 1993), XIV-39 (1993).
  • 274
    • 84923720096 scopus 로고    scopus 로고
    • note
    • Joint Resolution Regarding the Implementation of the Policy of the United States Government in Opposition to the Practice of Torture by any Foreign Government, Pub. L. No. 98-447, Oct. 4, 1984, 98 Stat. 1721 (1984) ("the Congress reaffirms that it is the continuing policy of the United States to oppose the practice of torture by foreign governments through public and private diplomacy and, when necessary and appropriate, through the enactment and vigorous implementation of laws intended to reinforce United States policies with respect to torture."). See also 22 U.S.C. § 262d (1995) (advancement of human rights by United States assistance policies with international financial institutions); 22 U.S.C. § 2151n (1995) (linking human rights records with development assistance); 22 U.S.C. § 2222 (1995) (granting funds to support the United Nations Voluntary Fund for Victims of Torture).
  • 275
    • 0040640340 scopus 로고
    • HOWARD S. LEVIE, TERRORISM IN WAR-THE LAW OF WAR CRIMES 135-39, 179-82 (1992) (citing postwar statistics for the European and Far Eastern theaters respectively); DEP'T OF ARMY, PAMPHLET 27-161-2, INTERNATIONAL LAW, VOL. II 234-35 (23 Oct. 1962) (citing statistics of national prosecutions) [hereinafter DA PAM 27-161-2]; M. Cherif Bassiouni, The Time Has Come for an International Criminal Court, IND. INT'L & COMP. L. REV. 1, 5 n.17 (Spring 1991) (citing sources of national prosecution statistics).
    • (1992) Terrorism in War-the Law of War Crimes , pp. 135-139
    • Levie, H.S.1
  • 276
    • 0041439732 scopus 로고
    • 23 Oct.
    • HOWARD S. LEVIE, TERRORISM IN WAR-THE LAW OF WAR CRIMES 135-39, 179-82 (1992) (citing postwar statistics for the European and Far Eastern theaters respectively); DEP'T OF ARMY, PAMPHLET 27-161-2, INTERNATIONAL LAW, VOL. II 234-35 (23 Oct. 1962) (citing statistics of national prosecutions) [hereinafter DA PAM 27-161-2]; M. Cherif Bassiouni, The Time Has Come for an International Criminal Court, IND. INT'L & COMP. L. REV. 1, 5 n.17 (Spring 1991) (citing sources of national prosecution statistics).
    • (1962) International Law , vol.2 , pp. 234-235
  • 277
    • 0010135740 scopus 로고
    • The time has come for an International Criminal Court
    • n.17 Spring
    • HOWARD S. LEVIE, TERRORISM IN WAR-THE LAW OF WAR CRIMES 135-39, 179-82 (1992) (citing postwar statistics for the European and Far Eastern theaters respectively); DEP'T OF ARMY, PAMPHLET 27-161-2, INTERNATIONAL LAW, VOL. II 234-35 (23 Oct. 1962) (citing statistics of national prosecutions) [hereinafter DA PAM 27-161-2]; M. Cherif Bassiouni, The Time Has Come for an International Criminal Court, IND. INT'L & COMP. L. REV. 1, 5 n.17 (Spring 1991) (citing sources of national prosecution statistics).
    • (1991) Ind. Int'l & Comp. L. Rev. , pp. 1
    • Bassiouni, M.C.1
  • 278
    • 84882206888 scopus 로고
    • It is incorrect to maintain that the World War II trials are the only historic example of international forums prosecuting violations of international law. In 1647, a tribunal of judges from Alsace, Switzerland, and other members of the Holy Roman Empire heard the case against the Burgundian Governor of Breisach, Peter von Hagenback. The accused tried to justify his troops' crimes against civilians based on a defense of superior orders, which the panel rejected. The international panel ruled that the defense of superior orders was contrary to the law of God and sentenced Hagenback to death. See G. SCHWARZENBERGER, 2 INTERNATIONAL LAW, INTERNATIONAL COURTS 462-66 (1968).
    • (1968) International Law, International Courts , vol.2 , pp. 462-466
    • Schwarzenberger, G.1
  • 279
    • 84923720095 scopus 로고    scopus 로고
    • Fogelson, supra note 150, at 833
    • Fogelson, supra note 150, at 833.
  • 281
    • 0042942790 scopus 로고    scopus 로고
    • Ad hoc tribunals half a century after Nuremberg
    • Id.
    • Id. See also Graham T. Blewitt, Ad Hoc Tribunals Half a Century after Nuremberg, 149 Mil. L. Rev. 101-02 ("Nuremberg was a success but the Cold War left it sitting on the shelf for almost 50 years. During that time the world has been dripping with blood. The hope the world would never see the suffering inflicted during World War II has not been realised and the suffering and death has been repeated again and again.").
    • Mil. L. Rev. , vol.149 , pp. 101-102
    • Blewitt, G.T.1
  • 282
    • 0042441996 scopus 로고
    • Principles of International Law recognized in the charter of the Nuremberg tribunal and the judgment of the tribunal
    • See, e.g., Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal, 2 Y.B. INT'L L. COMM. 374-380 (1950); Waldemar A. Solf, War Crimes and the Nuremberg Principle, in JOHN N. MOORE ET AL., NATIONAL SECURITY LAW 359-402 (1990).
    • (1950) Y.B. Int'l L. Comm. , vol.2 , pp. 374-380
  • 283
    • 0041941159 scopus 로고
    • War crimes and the Nuremberg principle
    • JOHN N. MOORE ET AL.
    • See, e.g., Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal, 2 Y.B. INT'L L. COMM. 374-380 (1950); Waldemar A. Solf, War Crimes and the Nuremberg Principle, in JOHN N. MOORE ET AL., NATIONAL SECURITY LAW 359-402 (1990).
    • (1990) National Security Law , pp. 359-402
    • Solf, W.A.1
  • 284
    • 0041941121 scopus 로고
    • The new International Law: Protection of the rights of individuals rather than States
    • Louis B. Sohn, The New International Law: Protection of the Rights of Individuals rather than States, 32 AM. U. L. REV. 1 (1982).
    • (1982) Am. U. L. Rev. , vol.32 , pp. 1
    • Sohn, L.B.1
  • 285
    • 77149179614 scopus 로고
    • See generally DONALD A. WELLS, WAR CRIMES AND LAWS OF WAR 81-118 (1984); Orville C. Snyder, It's Not Law-War Guilt Trials, 38 KY. L.J. 81 (1949); A. BRACKMAN, THE OTHER NUREMBERG (1987); R. CONOT, JUSTICE AT NUREMBERG (1983); A. TUSA & J. TUSA, THE NUREMBERG TRIAL (1983).
    • (1984) War Crimes and Laws of War , pp. 81-118
    • Wells, D.A.1
  • 286
    • 84923726666 scopus 로고
    • It's not law-war guilt trials
    • See generally DONALD A. WELLS, WAR CRIMES AND LAWS OF WAR 81-118 (1984); Orville C. Snyder, It's Not Law-War Guilt Trials, 38 KY. L.J. 81 (1949); A. BRACKMAN, THE OTHER NUREMBERG (1987); R. CONOT, JUSTICE AT NUREMBERG (1983); A. TUSA & J. TUSA, THE NUREMBERG TRIAL (1983).
    • (1949) KY. L.J. , vol.38 , pp. 81
    • Snyder, O.C.1
  • 287
    • 0003411875 scopus 로고
    • See generally DONALD A. WELLS, WAR CRIMES AND LAWS OF WAR 81-118 (1984); Orville C. Snyder, It's Not Law-War Guilt Trials, 38 KY. L.J. 81 (1949); A. BRACKMAN, THE OTHER NUREMBERG (1987); R. CONOT, JUSTICE AT NUREMBERG (1983); A. TUSA & J. TUSA, THE NUREMBERG TRIAL (1983).
    • (1987) The Other Nuremberg
    • Brackman, A.1
  • 288
    • 0039526805 scopus 로고
    • See generally DONALD A. WELLS, WAR CRIMES AND LAWS OF WAR 81-118 (1984); Orville C. Snyder, It's Not Law-War Guilt Trials, 38 KY. L.J. 81 (1949); A. BRACKMAN, THE OTHER NUREMBERG (1987); R. CONOT, JUSTICE AT NUREMBERG (1983); A. TUSA & J. TUSA, THE NUREMBERG TRIAL (1983).
    • (1983) Justice at Nuremberg
    • Conot, R.1
  • 289
    • 0040241907 scopus 로고
    • See generally DONALD A. WELLS, WAR CRIMES AND LAWS OF WAR 81-118 (1984); Orville C. Snyder, It's Not Law-War Guilt Trials, 38 KY. L.J. 81 (1949); A. BRACKMAN, THE OTHER NUREMBERG (1987); R. CONOT, JUSTICE AT NUREMBERG (1983); A. TUSA & J. TUSA, THE NUREMBERG TRIAL (1983).
    • (1983) The Nuremberg Trial
    • Tusa, A.1    Tusa, J.2
  • 290
    • 84923720094 scopus 로고    scopus 로고
    • Oct. 18, 1907, 36 Stat 2277, I Bevans 631 [hereinafter Hague IV]
    • Oct. 18, 1907, 36 Stat 2277, I Bevans 631 [hereinafter Hague IV].
  • 291
    • 84923720093 scopus 로고    scopus 로고
    • Opened for signature July 27, 1929, 47 Stat. 2021 (1932)
    • Opened for signature July 27, 1929, 47 Stat. 2021 (1932).
  • 292
    • 0042442009 scopus 로고
    • Nulla poena sine lege
    • Meron, supra note 40, at 562. Violations of international law need not be defined with absolute letter perfect clarity in all cases. The outer limit to this principle lies in the prohibition on ex post fact laws which is at the very root of the Western notion of judicial fairness. The corresponding principle of international law is known as nullem crimen sine lege, which literally means "no penalty without law." Jerome Hall, Nulla Poena Sine Lege, 47 YALE L.J. 165 (1937) ("[N]o conduct shall be criminal unless it is specifically described in . . . a penal statute."). No defendant at Nuremberg successfully raised the defense because the facts showed that the German government knew that its conduct violated treaty obligations as well as customary international law. See generally DA PAM 27-161-2, supra note 211, at 236-38 (describing the raising of the defense at Nuremberg); Eric S. Kobrick, The Ex Post Facto Prohibition and the Exercise of Universal Jurisdiction over International Crimes, 87 COLUM. L. REV. 1491, 1533 (1987) (the "ex post facto prohibition occupies a different status in the international field than in the domestic field, for the basic reason that international law has no legislature to pass statutes defining acts as criminal. International law is not a product of statutes, but of treaties, conventions, judicial decision, and customs. It is the gradual expression, case by case, of the moral judgments of the civilized world").
    • (1937) Yale L.J. , vol.47 , pp. 165
    • Hall, J.1
  • 293
    • 84928458240 scopus 로고
    • The ex post facto prohibition and the exercise of Universal Jurisdiction over International Crimes
    • Meron, supra note 40, at 562. Violations of international law need not be defined with absolute letter perfect clarity in all cases. The outer limit to this principle lies in the prohibition on ex post fact laws which is at the very root of the Western notion of judicial fairness. The corresponding principle of international law is known as nullem crimen sine lege, which literally means "no penalty without law." Jerome Hall, Nulla Poena Sine Lege, 47 YALE L.J. 165 (1937) ("[N]o conduct shall be criminal unless it is specifically described in . . . a penal statute."). No defendant at Nuremberg successfully raised the defense because the facts showed that the German government knew that its conduct violated treaty obligations as well as customary international law. See generally DA PAM 27-161-2, supra note 211, at 236-38 (describing the raising of the defense at Nuremberg); Eric S. Kobrick, The Ex Post Facto Prohibition and the Exercise of Universal Jurisdiction over International Crimes, 87 COLUM. L. REV. 1491, 1533 (1987) (the "ex post facto prohibition occupies a different status in the international field than in the domestic field, for the basic reason that international law has no legislature to pass statutes defining acts as criminal. International law is not a product of statutes, but of treaties, conventions, judicial decision, and customs. It is the gradual expression, case by case, of the moral judgments of the civilized world").
    • (1987) Colum. L. Rev. , vol.87 , pp. 1491
    • Kobrick, E.S.1
  • 294
    • 84923720092 scopus 로고    scopus 로고
    • note
    • Convention on Sick and Wounded, supra note 4, art. 49; Convention on Sick and Wounded at Sea, supra note 4, art. 50; Convention on Prisoners of War, supra note 4, art. 129; Civilians Convention, supra note 4, art. 146. The cited article is reprinted in FM 27-10, supra note 4, para. 506. The term "war crimes" is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime. Id. para. 499. The provisions of Article 18 and Article 21, UCMJ, meet this treaty obligation on the part of the United States. Other nations have enacted special legislation for the same purpose. See also War Crimes Act of 1996, Pub. L. No. 104-192 (1996) codified at 18 U.S.C. § 2401, 35 I.L.M. 1540 (1996).
  • 295
    • 84923720091 scopus 로고    scopus 로고
    • note
    • The Conventions define "grave breaches" uniformly with only slight variations as: willful killing, torture or inhuman treatment, to include biological experiments, willfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly. The Conventions Protecting Prisoners of War and Civilians also include prohibitions on compelling a prisoners of war (or protected persons respectively) to serve in the forces of the hostile Power, and willfully depriving a prisoner of war (and protected persons respectively) of the rights of fair and regular trial prescribed in the applicable Convention. See FM 27-10, supra note 4, para. 502.
  • 296
    • 77952045341 scopus 로고    scopus 로고
    • supra note 12, § 404;
    • RESTATEMENT, supra note 12, § 404; Richard R. Baxter, The Municipal and International Law Basis of Jurisdiction over War Crimes, 23 BRIT. Y.B. INT'L L. 382-93 (1951); William Cowles, Universality of Jurisdiction over War Crimes, 33 CALIF. L. R. 177-218 (1945); MYRES S. MCDOUGAL & FLORENTINO P. FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER: THE LEGAL REGULATION OF INTERNATIONAL COERCION 706-721 (1961).
    • Restatement
  • 297
    • 76649107470 scopus 로고
    • The municipal and International Law basis of jurisdiction over war crimes
    • RESTATEMENT, supra note 12, § 404; Richard R. Baxter, The Municipal and International Law Basis of Jurisdiction over War Crimes, 23 BRIT. Y.B. INT'L L. 382-93 (1951); William Cowles, Universality of Jurisdiction over War Crimes, 33 CALIF. L. R. 177-218 (1945); MYRES S. MCDOUGAL & FLORENTINO P. FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER: THE LEGAL REGULATION OF INTERNATIONAL COERCION 706-721 (1961).
    • (1951) Brit. Y.B. Int'l L. , vol.23 , pp. 382-393
    • Baxter, R.R.1
  • 298
    • 0043217452 scopus 로고
    • Universality of Jurisdiction over War Crimes
    • RESTATEMENT, supra note 12, § 404; Richard R. Baxter, The Municipal and International Law Basis of Jurisdiction over War Crimes, 23 BRIT. Y.B. INT'L L. 382-93 (1951); William Cowles, Universality of Jurisdiction over War Crimes, 33 CALIF. L. R. 177-218 (1945); MYRES S. MCDOUGAL & FLORENTINO P. FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER: THE LEGAL REGULATION OF INTERNATIONAL COERCION 706-721 (1961).
    • (1945) Calif. L. R. , vol.33 , pp. 177-218
    • Cowles, W.1
  • 300
    • 84923720090 scopus 로고    scopus 로고
    • note
    • For example, war crimes do not qualify as political offenses which would prevent extradition to a country seeking jurisdiction. See G.A. Res. 3, U.N. Doc. A/50 (1946); G.A. Res. 170, U.N. Doc. A/425 (1947); Genocide Convention, supra note 11, art. 7. The General Assembly approved by a vote of 58 to 7 The Convention on the Non-Applicability of Statutory Limitations on War Crimes and Crimes Against Humanity, G.A. Res. 2391, 23 G.A.O.R., Supp. No. 19, at 40, U.N. Doc. A/7218 (1969), reprinted in 8 I.L.M. 69 (1969). See also Principles of International Cooperation in the Detection, Arrest, Extradition, and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, G.A. Res. 3074 (XXVIII), 28 U.N. GAOR, Supp. No. 30A, at 78, U.N. Doc. A/9030/Add/1 (1973).
  • 301
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    • The International Military Tribunal at Nuremberg returned verdicts on only 22 defendants. NORMAN E. TUTOROW, WAR CRIMES, WAR CRIMINALS, AND WAR CRIMES TRIALS: AN ANNOTATED BIBLIOGRAPHY AND SOURCE BOOK 10 (1986). The texts of judgment and the sentences are reprinted in 41 AM. J. INT'L L. 172-332 (1947). The international tribunal at Tokyo tried 28 Japanese defendants. TUTOROW, supra, at 15. These men "were not just ordinary criminals, they were the leaders of empires, which sought to dominate the world by terror, using genocide and crimes against humanity as major tools to achieve their goals." Blewitt, supra note 215, at 102. By virtue of a separate international agreement, the United States alone tried another 185 defendants at Nuremberg. TUTOROW, supra, at 11. In contrast, by late November 1948, a total of 7109 defendants had been arrested for war crimes. By the end of 1958, the Western Allies had sentenced 5025 Germans for war crimes, of whom 806 received death sentences (although only 486 were actually executed). The Soviet Union convicted around 10,000. Von Glahn, supra note 155, at 882-83. For a fascinating discussion of the process and legal principles followed in post-War Germany by American military tribunals, as well as long lists of cases, charges, and sentences See U.S. Army Judge Advocate General, Report of the Deputy Judge Advocate for War Crimes, European Command, June 1944-July 1948 (1948).
    • (1986) War Crimes, War Criminals, and War Crimes Trials: An Annotated Bibliography and Source Book , pp. 10
    • Tutorow, N.E.1
  • 302
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    • note
    • The Nuremberg Tribunal thus stated: It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected . . . . Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of the law be enforced. . . . . The authors of these acts cannot shelter themselves behind their official position in order to be freed from the punishment in appropriate proceedings. 1 I.M.T., supra note 2, at 222-23.
  • 303
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    • FM 27-10, supra note 4, para. 510
    • FM 27-10, supra note 4, para. 510.
  • 304
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    • Command responsibility for war crimes
    • Article 47 of the German Military Code of 1872 stated that a subordinate is liable to punishment as an accomplice if he knew that the order involved an act the commission of which constituted a civil or military crime or offense. Article 47 is discussed at length in the High Command case, United States v. Von Leeb, reprinted in II THE LAW OF WAR: A DOCUMENTARY HISTORY 1431-32 (Leon Friedman ed., 1972). For an excellent discussion of the command responsibility issues raised by the High Command Case See W. Hays Parks, Command Responsibility for War Crimes, 62 MIL. L. REV. 1, 38-58 (1972).
    • (1972) Mil. L. Rev. , vol.62 , pp. 1
    • Parks, W.H.1
  • 305
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    • note
    • London Charter, supra note 12, art. 8. See also FM 27-10, supra note 4, para. 509 (Defense of Superior Orders).
  • 306
    • 84923720086 scopus 로고    scopus 로고
    • note
    • The quoted language is from the Martens clause which formed the preamble to Hague IV Convention, supra note 219. See also Protocol I, supra note 4, art. 1, para. 2 ("In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity, and from the dictates of public conscience.").
  • 307
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    • 2nd ed.
    • WILLIAM W. BISHOP, JR., INTERNATIONAL LAW: CASES AND MATERIALS 186 (2nd ed. 1962). Copies of the 1218 page judgment and individual opinions rendered November 4-12, 1948, are available at the United States Army Judge Advocate General's School, Charlottesville, Virginia. Key excerpts are reprinted in U.S. NAVAL WAR COLLEGE, INTERNATIONAL LAW DOCUMENTS 1948-1949, 71-107 (1950). See also DEP'T OF STATE, 11 DIGEST OF INTERNATIONAL LAW 960-1017 (Marjorie Whiteman ed., 1962) [hereinafter Whiteman]; Horwitz, The Tokyo Trial, INT'L CONC. NO, 465 (1950).
    • (1962) International Law: Cases and Materials , pp. 186
    • Bishop W.W., Jr.1
  • 308
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    • hereinafter Whiteman
    • WILLIAM W. BISHOP, JR., INTERNATIONAL LAW: CASES AND MATERIALS 186 (2nd ed. 1962). Copies of the 1218 page judgment and individual opinions rendered November 4-12, 1948, are available at the United States Army Judge Advocate General's School, Charlottesville, Virginia. Key excerpts are reprinted in U.S. NAVAL WAR COLLEGE, INTERNATIONAL LAW DOCUMENTS 1948-1949, 71-107 (1950). See also DEP'T OF STATE, 11 DIGEST OF INTERNATIONAL LAW 960-1017 (Marjorie Whiteman ed., 1962) [hereinafter Whiteman]; Horwitz, The Tokyo Trial, INT'L CONC. NO, 465 (1950).
    • (1962) Digest of International Law , vol.11 , pp. 960-1017
    • Whiteman, M.1
  • 309
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    • INT'L CONC. NO, 465
    • WILLIAM W. BISHOP, JR., INTERNATIONAL LAW: CASES AND MATERIALS 186 (2nd ed. 1962). Copies of the 1218 page judgment and individual opinions rendered November 4-12, 1948, are available at the United States Army Judge Advocate General's School, Charlottesville, Virginia. Key excerpts are reprinted in U.S. NAVAL WAR COLLEGE, INTERNATIONAL LAW DOCUMENTS 1948-1949, 71-107 (1950). See also DEP'T OF STATE, 11 DIGEST OF INTERNATIONAL LAW 960-1017 (Marjorie Whiteman ed., 1962) [hereinafter Whiteman]; Horwitz, The Tokyo Trial, INT'L CONC. NO, 465 (1950).
    • (1950) The Tokyo Trial
    • Horwitz1
  • 310
    • 0042942778 scopus 로고    scopus 로고
    • The international military tribunal for the far east and its contemporary resonances 2
    • Dr. John Pritchard, The International Military Tribunal for the Far East and its Contemporary Resonances 2, 149 MIL L. REV. 25, 28.
    • Mil L. Rev. , vol.149 , pp. 25
    • Pritchard, J.1
  • 311
    • 84923720085 scopus 로고    scopus 로고
    • note
    • The members of the Tribunal were, Sir William Webb (Australia), Judge Stuart E. McDougall (Canada), Mei Ju-Au (China), Judge Jenri Bernard (France), Judge R. M. Pal (India), Lord Patrick (England), Judge Bernard Roling (Netherlands), Justice Erima H. Northcraft (New Zealand), Justice Delfin Jaranilla (Philippines), Justice I.M. Zaryanov (Soviet Union), Major General Myron H. Cramer (United States, replacing Justice John D. Higgins in June 1946). Whiteman, supra note 232, at 972.
  • 312
    • 84968293230 scopus 로고
    • July 29
    • In re Yamashita, 327 U.S. 1, 10 (1946). This language echoed Paragraph 10 of the Potsdam Declaration of July 26, 1945 which declared that "stern justice shall be meted out to all war criminals, including those who have visited cruelties on our prisoners." 13 DEP'T OF STATE BULLETIN 137-38 (July 29, 1945).
    • (1945) Dep't of State Bulletin , vol.13 , pp. 137-138
  • 313
    • 84923720084 scopus 로고    scopus 로고
    • note
    • Hirota v. MacArthur, General of the Army, 338 U.S. 197, 69 S. Ct. 197, 93 L.Ed. 1902 (1948) (a per curiam opinion which also resolved Dohihara v. MacArthur, General of the Army, et al, Petition No. 240, and Kido et. al. v. MacArthur, General of the Army, et al., rehn'g denied 335 U.S. 906 (1949)). Accord Adachi v. MacArthur, Unreported Case, MS Department of State File No. 611.942/2-1350 (Habeas Corpus No. 3562) (holding that Japanese officers convicted by a commission composed of one Australian and five American officers "was a military commission of international character with its existence and jurisdiction rooted in the sovereignty of the Far Eastern Commission, acting through its sole executive agency, the Supreme Commander for the Allied Powers); Nash on behalf of Takeshi Hashimoto et al. v. MacArthur, General of the Army, et al., 184 F.2d 606 (D.C. Cir. 1950); Toneo Shirakura et al. v. Royall, 89 F. Supp. 711, 713 (1948), motion for reconsideration denied 89 F. Supp. 713 (D.D.C. 1949) ("With the sentence of the military tribunal of the conqueror, whether in the Philippine Islands, or Nuremberg, or at Tokyo a District Court of the United States has neither the power to interfere nor the responsibility. Correction of errors must lie with the political branches of government or with what courts may have the power to act."). Justice Jackson filed a special memorandum which stated his views as to participation in the decisions despite his prominent role at Nuremberg. 335 U.S. 876 (1948), reprinted in II THE LAW OF WAR: A DOCUMENTARY HISTORY 1184-1187 (Leon Friedman ed., 1972). Justice Jackson understood the significance of the cases, and felt that he should break a developing four to four tie because "the issues here are truly great ones. They only involve decision of war crimes issues secondarily, for primarily, the decision will establish or deny that this Court has power to review exercises of military power abroad and the President's conduct of external affairs of our Government." Id. at 1186.
  • 314
    • 84923720083 scopus 로고    scopus 로고
    • note
    • For the Proclamation of January 19, 1946, and General Orders No. 1 and 20 containing the Charter, See T.I.A.S. 1589, reprinted in 14 DEP'T OF STATE BULLETIN 361-64 (Mar. 10, 1946), and U.S. NAVAL WAR COLLEGE, INTERNATIONAL LAW DOCUMENTS 1946-1947 317-326 (1947).
  • 315
    • 84923720082 scopus 로고    scopus 로고
    • note
    • Exec. Order No. 9660, 10 Fed. Reg. 14591 (Nov. 30, 1945) (appointing Mr. Joseph B. Keenan as the "Chief of Counsel in the preparation and prosecution of charges of war crimes against the major leaders of Japan and their principal agents and accessories").
  • 316
    • 84923720081 scopus 로고    scopus 로고
    • Pritchard, supra note 233, at 26
    • Pritchard, supra note 233, at 26.
  • 317
    • 84923720080 scopus 로고    scopus 로고
    • Hirota, 338 U.S. at 198
    • Hirota, 338 U.S. at 198.
  • 318
    • 84923720079 scopus 로고    scopus 로고
    • Id. at 208
    • Id. at 208.
  • 319
    • 84923720078 scopus 로고    scopus 로고
    • Id. at 215
    • Id. at 215.
  • 320
    • 84923720077 scopus 로고    scopus 로고
    • Whiteman, supra note 232, at 974
    • Whiteman, supra note 232, at 974.
  • 321
    • 84923720076 scopus 로고    scopus 로고
    • note
    • U.N. CHARTER art. 41. See also S.C. Res. 678, UN SCOR, 45th Sess., Res. & Dec. at 27-28, U.N. Doc. S/INF/46 (1990), reprinted in 29 I.L.M. 1565 (1990) (authorizing "all necessary means" to drive Iraq from Kuwait and "to restore international peace and security in the area").
  • 322
    • 27844448054 scopus 로고
    • The security council's first fifty years
    • The Secretary General described the variety of Security Council functions as including diverse activities such as: the supervision of cease-fires, the regroupment and demobilization of forces, their reintegration into civilian life and the destruction of their weapons; the design and implementation of demining programmes; the return of refugees and displaced persons; the provision of humanitarian assistance; the supervision of existing administrative structures; the establishment of new police forces; the verification of respect for human rights; the design of constitutional, judicial, and electoral reforms; the observation, supervision, and even the organization and conduct of elections; and the coordination of support for economic rehabilitation and reconstruction. Agenda for Peace II, supra note 110, at 6. See also Frederick L. Kirgis Jr., The Security Council's First Fifty Years, 89 AM. J. INT'L L. 506, 522-39 (1995); M. Jennifer MacKay, Economic Sanctions: Are They Actually Enforcing International Law in Serbia-Montenegro?, 3 TUL. J. INT'L & COMP. L. 203 (1995).
    • (1995) Am. J. Int'l L. , vol.89 , pp. 506
    • Kirgis F.L., Jr.1
  • 323
    • 0041941087 scopus 로고
    • Economic sanctions: Are they actually enforcing International Law in Serbia-Montenegro?
    • The Secretary General described the variety of Security Council functions as including diverse activities such as: the supervision of cease-fires, the regroupment and demobilization of forces, their reintegration into civilian life and the destruction of their weapons; the design and implementation of demining programmes; the return of refugees and displaced persons; the provision of humanitarian assistance; the supervision of existing administrative structures; the establishment of new police forces; the verification of respect for human rights; the design of constitutional, judicial, and electoral reforms; the observation, supervision, and even the organization and conduct of elections; and the coordination of support for economic rehabilitation and reconstruction. Agenda for Peace II, supra note 110, at 6. See also Frederick L. Kirgis Jr., The Security Council's First Fifty Years, 89 AM. J. INT'L L. 506, 522-39 (1995); M. Jennifer MacKay, Economic Sanctions: Are They Actually Enforcing International Law in Serbia-Montenegro?, 3 TUL. J. INT'L & COMP. L. 203 (1995).
    • (1995) Tul. J. Int'l & Comp. L. , vol.3 , pp. 203
    • Mackay, M.J.1
  • 324
    • 84923720075 scopus 로고    scopus 로고
    • Rwanda Statute, supra note 105
    • Rwanda Statute, supra note 105.
  • 325
    • 84923720074 scopus 로고    scopus 로고
    • S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/827 (1993)
    • S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/827 (1993).
  • 326
    • 84923720073 scopus 로고    scopus 로고
    • S.C. Res. 837, supra note 125, ¶ 5
    • S.C. Res. 837, supra note 125, ¶ 5.
  • 327
    • 84923720072 scopus 로고    scopus 로고
    • note
    • Id. See also S.C. Res. 865, U.N. SCOR, 48th Sess., 3280th mtg., U.N. Doc. S/RES/865 (1993) (reaffirming that those who attack UNOSOM II personnel would be held criminally responsible for the attacks).
  • 328
    • 84923720071 scopus 로고    scopus 로고
    • note
    • Telephone Interview with Lieutenant Colonel Frank Fountain, February 5, 1996. Lieutenant Colonel Fountain served with United States forces deployed to Somalia during Operation Restore Hope.
  • 329
    • 84923720070 scopus 로고    scopus 로고
    • United States v. Curtiss-Wright Corp., 299 U.S. 304, 318-21 (1936)
    • United States v. Curtiss-Wright Corp., 299 U.S. 304, 318-21 (1936).
  • 330
    • 84923720069 scopus 로고    scopus 로고
    • Hirota v. MacArthur, General of the Army, 338 U.S. 197, 198 (1948)
    • Hirota v. MacArthur, General of the Army, 338 U.S. 197, 198 (1948).
  • 331
    • 84923720068 scopus 로고    scopus 로고
    • note
    • Id. ("We are satisfied that the tribunal sentencing these petitioners is not a tribunal of the United States."). After a more rigorous analysis than the per curiam opinion, Justice Douglas noted, "Here the President did not utilize the conventional military tribunals provided by the Articles of War. He did not act alone but only in conjunction with the Allied Powers. This tribunal was an international one arranged through negotiation with the Allied Powers." Id. at 208
  • 333
    • 0042942773 scopus 로고
    • Human rights and humanitarian intervention
    • Lori F. Damrosch & David Scheffer eds.
    • Vladimir Kartashkin, Human Rights and Humanitarian Intervention, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 202 (Lori F. Damrosch & David Scheffer eds., 1991).
    • (1991) Law and Force in the New International Order , pp. 202
    • Kartashkin, V.1
  • 334
    • 84974039065 scopus 로고
    • Universal International Law
    • RESTATEMENT, supra note 12, § 702, cmt. n ("Not all human rights norms are peremptory norms (jus cogens), but those in clauses (a) to (f) of this section are, and an international agreement that violates them is void.); See also Id. § 404. Jus cogens norms are binding on all states. The class of jus cogens norms is distinct in international law because they derive from a common heritage of mankind and impose natural law values on all persons, all systems, all states, and apply at all times. Jonathan I, Chaney, Universal International Law, 87 AM. J. INT'L L. 529, 541 (1993).
    • (1993) Am. J. Int'l L. , vol.87 , pp. 529
    • Chaney J. I1
  • 335
    • 0042441990 scopus 로고
    • The human rights revolution
    • Thomas Buergenthal, The Human Rights Revolution, 23 ST. MARY'S L.J. 3, 4 (1991).
    • (1991) St. Mary's L.J. , vol.23 , pp. 3
    • Buergenthal, T.1
  • 336
    • 84923720067 scopus 로고    scopus 로고
    • U.N. CHARTER art. 1, para. 3
    • U.N. CHARTER art. 1, para. 3.
  • 337
    • 84923720066 scopus 로고    scopus 로고
    • note
    • See, e.g., G.A. Res. 95, U.N. GAOR, 1st Sess., U.N. Doc. A/RES/95 (1946) (affirming the principles of international law recognized by the Charter of the Nuremberg Tribunal); G.A. Res. 2444, U.N. GAOR, 23d Sess., U.N. Doc. A/RES/2444 (1968) (recognizing the necessity of applying basic humanitarian principles in all armed conflicts and affirming certain principles to be observed in armed conflict); G.A. Res. 2712, U.N. GAOR, 25th Sess., U.N. Doc. A/RES/2712 (1970) (calling on states to try and punish persons who have committed war crimes and crimes against humanity); G.A. Res. 260, U.N. GAOR, 3rd Sess., U.N. Doc. A/RES/260 (1948) (approving and proposing for signature the Convention on the Prevention and Punishment of the Crime of Genocide); G.A. Res. 1904, 18 U.N. GAOR, Supp. No. 15, at 35 (referring to the "duty of states to fully and faithfully observe the provisions of the Universal Declaration [of Human Rights]."); G.A. Res. 2625 (XXV), U.N. Doc. A/RES/8082 (1970) ("Every state has the duty to promote through joint and separate action universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter . . . The principles of the Charter which are embodied in this Declaration constitute basic principles of international law.").
  • 338
    • 84923720065 scopus 로고    scopus 로고
    • note
    • See, e.g., American Convention on Human Rights, Nov. 22, 1969, O.A.S. Treaty Series No. 36, OEA/Ser. L./V/II.23 doc. rev. 2, entered into force July 18, 1978; European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, entered into force Sept. 3, 1953, as amended by Protocol No. 3, entered into force Sept. 21, 1970, and Protocol No. 5, entered into force Dec. 21, 1971; African [Banjul] Charter on Human and People's Rights, O.A.U. Doc. CAB/LEG/67/3 rev 5, June 27, 1981, reprinted in 21 I.L.M. 58 (1982).
  • 339
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    • Sovereignty and human rights in contemporary International Law
    • Buergenthal, supra note 257, at 6. The Preamble to the Protocol Additional to the American Convention on Human Rights suggests that human rights instruments simply codify what is already inherent to the nature of humanity. The Protocol recognized that "the essential rights of man are not derived from one's being a national of a certain state, but are based upon attributes of the human person, for which reason they merit international protection in the form of a convention reinforcing or complementing the protection provided by the domestic law of the American states. 28 I.L.M. 161 (1989). The logical corollary to the development of human rights has been the shifting views of sovereignty. Because all individuals possess a body of rights simply due to their existence as human inhabitants of the planet, governments cannot disregard those rights with impunity. According to one scholar, sovereignty of a state is now derived from the will of the people, and not from the illegitimate possession of power. W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 AM. J. INT'L L. 866, 867 (1990). Thus, a government that disregards the basic human rights of its citizens "cannot hide behind the protective shield of sovereignty." Id. at 872. Some United States courts have recognized that the concept of jus cogens might have a domestic legal effect. See, e.g., United States Citizens of Nicarauga v. Reagan, 859 F.2d 929, (D.C. Cir. 1988) ("If Congress adopted a foreign policy that resulted in the enslavement of our citizens or of other individuals, that policy might well be subject to challenge in domestic court under international law."). But c.f. Princz v. Federal Republic of Germany, 26 F.3d 1166, 1182 (D.C. Cir. 1994) (holding that the district court did not have subject matter jurisdiction under the Foreign Sovereign Immunities Act, and overruling the dissent argument that Germany waived its sovereign immunity from 1942 to 1945 by violating jus cogens norms condemning enslavement and genocide).
    • (1990) Am. J. Int'l L. , vol.84 , pp. 866
    • Reisman, W.M.1
  • 340
    • 84923720064 scopus 로고    scopus 로고
    • note
    • See, e.g., Nuclear Tests (Australia v. France), 1974 I.C.J. 253, 303 (December 20, 1974) (Opinion of Judge Petren); Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16. (June 21, 1971).
  • 341
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    • The protection of human rights in disintegrating states: A new challenge
    • S.C. Res. 181, 18 U.N. SCOR, U.N. Doc. S/INF/18/Rev. 1, at 7 (1963). See also S.C. Res. 421, U.N. SCOR, 32d Sess., 2052d mtg., U.N. Doc. S/RES/421 (1977)
    • Bartram S. Brown, The Protection of Human Rights in Disintegrating States: A New Challenge, 68 CHI.-KENT L. REV. 203, 214 (1992). For example, violations of human rights by the Republic of South Africa, have been on the agenda of almost every General Assembly. The Security Council declared that South African violations disturbed international peace and security, called for an arms embargo against that country, and took the first action under Chapter VII against that country upon a finding that its policies were "fraught with danger to international peace and security." S.C. Res. 181, 18 U.N. SCOR, U.N. Doc. S/INF/18/Rev. 1, at 7 (1963). See also S.C. Res. 421, U.N. SCOR, 32d Sess., 2052d mtg., U.N. Doc. S/RES/421 (1977).
    • (1992) Chi.-kent L. Rev. , vol.68 , pp. 203
    • Brown, B.S.1
  • 342
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    • Human rights and humanitarian law: The Interrelationship of the laws
    • See Dietrich Schindler, Human Rights and Humanitarian Law: The Interrelationship of the Laws, 31 AM. U. L. REV. 935 (1982); Yoram Dinstein, Human Rights in Armed Conflict: International Humanitarian Law, in 2 HUMAN RIGHTS IN INTERNATIONAL LAW 345 (T. Meron ed., 1984) [hereinafter Dinstein]; G. Draper, Human Rights and the Law of War, 12 VA. J. INT'L L. 326 (1972).
    • (1982) Am. U. L. Rev. , vol.31 , pp. 935
    • Schindler, D.1
  • 343
    • 0041941084 scopus 로고
    • Human rights in armed conflict: International humanitarian law
    • T. Meron ed., hereinafter Dinstein
    • See Dietrich Schindler, Human Rights and Humanitarian Law: The Interrelationship of the Laws, 31 AM. U. L. REV. 935 (1982); Yoram Dinstein, Human Rights in Armed Conflict: International Humanitarian Law, in 2 HUMAN RIGHTS IN INTERNATIONAL LAW 345 (T. Meron ed., 1984) [hereinafter Dinstein]; G. Draper, Human Rights and the Law of War, 12 VA. J. INT'L L. 326 (1972).
    • (1984) Human Rights in International Law , vol.2 , pp. 345
    • Dinstein, Y.1
  • 344
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    • Human rights and the law of war
    • See Dietrich Schindler, Human Rights and Humanitarian Law: The Interrelationship of the Laws, 31 AM. U. L. REV. 935 (1982); Yoram Dinstein, Human Rights in Armed Conflict: International Humanitarian Law, in 2 HUMAN RIGHTS IN INTERNATIONAL LAW 345 (T. Meron ed., 1984) [hereinafter Dinstein]; G. Draper, Human Rights and the Law of War, 12 VA. J. INT'L L. 326 (1972).
    • (1972) Va. J. Int'l L. , vol.12 , pp. 326
    • Draper, G.1
  • 345
    • 84923720063 scopus 로고    scopus 로고
    • note
    • The Geneva Conventions apply during "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties even if a state of war is not recognized by one of them." Civilians Convention, supra note 4, art. 2, para. 1; Convention on Prisoners of War, id.; Convention on Sick and Wounded, id.; Convention on Sick and Wounded at Sea, id.
  • 346
    • 84923720062 scopus 로고    scopus 로고
    • Statute of the International Tribunal, supra note 173, art. 3
    • Statute of the International Tribunal, supra note 173, art. 3.
  • 347
    • 84923720061 scopus 로고    scopus 로고
    • note
    • Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, IT Doc. IT-94-1-AR72, at 54 The quoted language precedes and helps explain the Yugoslavia Tribunal's Appeal Chamber ruling that the phrase "laws or customs or war" proscribed by article 3 of the Statute of the Tribunal applies to war crimes "regardless of whether they are committed in internal or international armed conflicts." Id. at 68.
  • 348
    • 84923720060 scopus 로고    scopus 로고
    • note
    • Civilians Convention, supra note 4, art. 3; Convention on Prisoners of War, id.; Convention on Sick and Wounded, Id.; Convention on Sick and Wounded at Sea, id.
  • 349
    • 84923720059 scopus 로고    scopus 로고
    • note
    • Id. Common Article 3 prohibits the following acts: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture; (b) taking of hostages, (c) outrages upon personal dignity, in particular humiliating and degrading treatment, and (d) the passing of sentences and the carrying out of executions without the previous judgment (sic) pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized people.
  • 350
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    • The penal repression of violations of International Humanitarian Law applicable in Non-International armed conflicts
    • Denise Plattner, The Penal Repression of Violations of International Humanitarian Law Applicable in Non-International Armed Conflicts, 30 INT'L REV. RED CROSS 409, 414 (1990). See also Meron, supra note 40, at 559 n.25 (comments by the United Nations War Crimes Commission (for Yugoslavia) to the effect that "the only offenses committed in internal armed conflict for which universal jurisdiction exists are crimes against humanity and genocide," these comments preceded the appellate rulings of the International Tribunal for the Former Yugoslavia which concluded otherwise).
    • (1990) Int'l Rev. Red Cross , vol.30 , pp. 409
    • Plattner, D.1
  • 351
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    • Modernizing the law of war
    • Richard R. Baxter, Modernizing the Law of War, 78 MIL. L. REV. 165, 168 (1978).
    • (1978) Mil. L. Rev. , vol.78 , pp. 165
    • Baxter, R.R.1
  • 352
    • 84923720058 scopus 로고    scopus 로고
    • note
    • Memorial of the Government of the United States of America, at 71, Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3 (Jan. 1980).
  • 353
    • 84923720057 scopus 로고    scopus 로고
    • note
    • Id. at 71 n.3, 72 n.2 (citing arts. 1, 55, & 56 of the United Nations Charter, along with arts. 3, 5, 7, 9, 12, & 13 of the Universal Declaration of Human Rights, and arts. 7, 9, 10, & 12 of the Covenant on Civil and Political Rights for the proposition that international law protects fundamental rights such as the right to life, liberty, and the security of person; the prohibition on torture, cruel, inhuman, or degrading treatment; the right to equality before the law; the prohibition on arbitrary arrest and detention; and the right to freedom of movement as justifying criminal sanctions).
  • 354
    • 84923733697 scopus 로고
    • International Law Commission, 31 U.N. GAOR, Supp. No. 10, at 226 (1976), cited in 2 Y.B. INT'L L. Comm'n 95 (1976).
    • (1976) U.N. GAOR , vol.31 , Issue.10 SUPPL. , pp. 226
  • 355
    • 84923742843 scopus 로고
    • International Law Commission, 31 U.N. GAOR, Supp. No. 10, at 226 (1976), cited in 2 Y.B. INT'L L. Comm'n 95 (1976).
    • (1976) Y.B. Int'l L. Comm'n , vol.2 , pp. 95
  • 357
    • 84923720056 scopus 로고    scopus 로고
    • note
    • Corfu Channel (Assessment of the Amount of Compensation Due from the People's Republic of Albania), Merits, 1949 I.C.J. 237 (Nov. 1949).
  • 358
    • 84923720055 scopus 로고    scopus 로고
    • note
    • Military and Paramilitary Activities in and against Nicarauga (Nicar. v. U.S.), Merits, 1986 I.C.J. 4, 114 ¶ 218 (June 27, 1986). See also Case Concerning the Barcelona Traction, Light and Power Company (Belgium v. Spain), Merits, 1970 I.C.J. 4, 32 (Feb. 5, 1970) (distinguishing diplomatic protections available only to nationals of a protecting state from protection of "basic rights of the human person" which "all states can be held to have a legal interest" in protecting, and noting the difference between the "obligations of a state towards the international community as a wholeand those obligations arising among individual states).
  • 359
    • 84923720006 scopus 로고    scopus 로고
    • note
    • Interim Report Dated October 1, 1994 of The Commission of Experts Established Pursuant to Security Council Resolution 935, U.N. Doc. S/1994/1125, annex, ¶¶ 125-28.
  • 360
    • 84923720004 scopus 로고    scopus 로고
    • note
    • Rwanda Statute, supra note 105, art. 4. Article 4 of the Rwanda prohibits "serious violations of Article 3 common to the Geneva Conventions" including, but not limited to the following: (a) Violence to life, health and physical or mental well being of persons, in particular murder, as well as cruel treatment such as torture, mutilation, or any form of corporal punishment, (b) Collective punishments, (c) Taking of Hostages, (d) Acts of terrorism, (e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault, (f) Pillage, (g) The passing of sentences and the carrying our of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples, (h) Threats to commit any of the foregoing acts.
  • 361
    • 84923720002 scopus 로고    scopus 로고
    • note
    • Amicus Curiae Brief Presented by the Government of the United States of America, 25 July 1995, IT-94-I-T, at 37, quoting Provisional Verbatim Record of the Three Thousand Two Hundred and Seventeenth Meeting, U.N. Doc. S/PV.3217, at 15 (1993) [hereinafter Tadic Brief].
  • 362
    • 84923720001 scopus 로고    scopus 로고
    • Meron, supra note 40, at 560-61
    • Meron, supra note 40, at 560-61.
  • 363
    • 0042942739 scopus 로고
    • War crimes jurisdiction and due process: The Bangladesh experience
    • Jordan J. Paust & Albert P. Blaustein, War Crimes Jurisdiction and Due Process: The Bangladesh Experience, 11 VAND. J. TRANSNAT'L L. 1 (1978). On 28 September 1995, for example, a court in Zadar County, Croatia sentenced Miljenko Jasika to ten years confinement for the criminal act of war crime against civilians. From 1992 to 1994, Jasika organized terrorist activities in the Banja Luka area, maltreated Muslims, planted explosive devices, and threw bombs into the homes of Croats and Muslims. British Broadcasting Corporation, BBC Summary of World Broadcasts, EE/D2422/A (HINA News Agency, Zagreb, Croatia, Sept. 28, 1995) (on file with the author). In March 1993, a Bosnian military court sentenced two Serb militiamen to death by firing squad for war crimes against Muslims. One defendant, Borislav Herak, confessed to 35 murders and 16 rapes. Two Charged in War Crimes Trial, CHI. DAILY L. BULL., Mar. 12, 1993, at 1.
    • (1978) Vand. J. Transnat'l L. , vol.11 , pp. 1
    • Paust, J.J.1    Blaustein, A.P.2
  • 364
    • 0042942735 scopus 로고
    • EE/D2422/A HINA News Agency, Zagreb, Croatia, Sept. 28
    • Jordan J. Paust & Albert P. Blaustein, War Crimes Jurisdiction and Due Process: The Bangladesh Experience, 11 VAND. J. TRANSNAT'L L. 1 (1978). On 28 September 1995, for example, a court in Zadar County, Croatia sentenced Miljenko Jasika to ten years confinement for the criminal act of war crime against civilians. From 1992 to 1994, Jasika organized terrorist activities in the Banja Luka area, maltreated Muslims, planted explosive devices, and threw bombs into the homes of Croats and Muslims. British Broadcasting Corporation, BBC Summary of World Broadcasts, EE/D2422/A (HINA News Agency, Zagreb, Croatia, Sept. 28, 1995) (on file with the author). In March 1993, a Bosnian military court sentenced two Serb militiamen to death by firing squad for war crimes against Muslims. One defendant, Borislav Herak, confessed to 35 murders and 16 rapes. Two Charged in War Crimes Trial, CHI. DAILY L. BULL., Mar. 12, 1993, at 1.
    • (1995) British Broadcasting Corporation, BBC Summary of World Broadcasts
  • 365
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    • Two charged in war crimes trial
    • Mar. 12
    • Jordan J. Paust & Albert P. Blaustein, War Crimes Jurisdiction and Due Process: The Bangladesh Experience, 11 VAND. J. TRANSNAT'L L. 1 (1978). On 28 September 1995, for example, a court in Zadar County, Croatia sentenced Miljenko Jasika to ten years confinement for the criminal act of war crime against civilians. From 1992 to 1994, Jasika organized terrorist activities in the Banja Luka area, maltreated Muslims, planted explosive devices, and threw bombs into the homes of Croats and Muslims. British Broadcasting Corporation, BBC Summary of World Broadcasts, EE/D2422/A (HINA News Agency, Zagreb, Croatia, Sept. 28, 1995) (on file with the author). In March 1993, a Bosnian military court sentenced two Serb militiamen to death by firing squad for war crimes against Muslims. One defendant, Borislav Herak, confessed to 35 murders and 16 rapes. Two Charged in War Crimes Trial, CHI. DAILY L. BULL., Mar. 12, 1993, at 1.
    • (1993) Chi. Daily L. Bull. , pp. 1
  • 366
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    • note
    • Pictet, supra note 275, at 36. See also Meron, supra note 40, at 566 ("no person who has committed such acts, in Rwanda, or elsewhere, could claim in good faith the he/she did not understand that the acts were prohibited. And the principle nullem crimen is designed to protect a person only from being punished for an act that he or she reasonably believed to be lawful when committed").
  • 367
    • 84923719999 scopus 로고    scopus 로고
    • note
    • Decision on the Defence Motion, Jurisdiction of the Tribunal, 10 August 1995, IT Case No. IT-94-1-T, ¶ 72. The Trial Chamber's decision implicitly strengthens the recognition of Common Article 3 as a continuum crime. In the language of the Trial Chamber the term "laws or customs of war" applies to international and internal armed conflicts, and the minimum standards of Common Article 3 support criminal prosecutions which do not violate the principle of nullem crimen sine lege. Id. ¶ 74.
  • 368
    • 84923719998 scopus 로고    scopus 로고
    • note
    • Statute of the International Tribunal, supra note 173, art. 5; Rwanda Statute, supra note 102, art. 3.
  • 369
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    • U.N. Doc. S/1994/674, ¶¶ 73, 82 (1994).
    • Final Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), U.N. Doc. S/1994/674, ¶¶ 73, 82 (1994). From November 1992 until April 1994, the Commission of Experts gathered information with a view towards providing the Secretary General with its conclusions on the evidence of grave breaches of the Geneva Conventions and other violations of customary international law committed in the territory of the Former Yugoslavia. The 3,000 page report documents large scale and brutal violations of international humanitarian law as well as grave breaches of the Geneva Conventions.
    • (1992) Final Report of the Commission of Experts Established Pursuant to Security Council Resolution , pp. 780
  • 370
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    • Id. ¶ 75
    • Id. ¶ 75.
  • 371
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    • Crimes against humanity
    • Id. ¶ 74. The London Charter, supra note 12, art 6(c), defined crimes against humanity as crimes including "murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal." The Nuremberg Tribunal recognized the legality of the substantive offenses, but found that the Charter limitation prevented its making a general declaration that the acts prior to 1939 were Crimes against Humanity. 1 I.M.T. supra note 2, at 254 ("The Tribunal is of the opinion that revolting and horrible as those crimes were, it has not been satisfactorily proved that they were done in the execution of, or in connection with, any such crime [within the jurisdiction of the Tribunal]."). Allied Control Council Law No. 10 later deleted the requirement for a linkage between crimes against humanity and other crimes. See Egon Schwelb, Crimes Against Humanity, 23 B.Y.B. INT'L L. 178, 218 (1946) ("it is not necessary for an act to come under the notion of crime against humanity within the meaning of Law No. 10 to prove that it was committed in execution of, or in connection with, a crime against peace or a war crime").
    • (1946) B.Y.B. Int'l L. , vol.23 , pp. 178
    • Schwelb, E.1
  • 372
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    • Statute of the International Tribunal, supra note 173, art. 5
    • Statute of the International Tribunal, supra note 173, art. 5.
  • 373
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    • Rwanda Statute, supra note 105, art. 3
    • Rwanda Statute, supra note 105, art. 3.
  • 374
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    • Seventh report on the draft code of crimes against the peace and security of mankind,
    • U.N. Doc. A/N/CN.4/SER.A/1989/Add.1, at 87
    • Seventh Report on the Draft Code of Crimes Against the Peace and Security of Mankind, [1989] 2 Y.B. OF THE I.L.C. 86, U.N. Doc. A/N/CN.4/SER.A/1989/Add.1, at 87.
    • (1989) Y.B. of the I.L.C. , vol.2 , pp. 86
  • 375
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    • Current development: The iLC adopts a statute for an International Criminal Court
    • James Crawford, Current Development: The ILC Adopts a Statute for an International Criminal Court, 89 AM. J. INT'L L. 404, 410 (1995) (noting that Article 20 of the 1994 Statute confers jurisdiction over four offenses defined by general international law: (a) the crime of genocide, (b) the crime of aggression, (c) serious violations of the laws and customs applicable in armed conflict, and (d) crimes against humanity).
    • (1995) Am. J. Int'l L. , vol.89 , pp. 404
    • Crawford, J.1
  • 377
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    • note
    • Rwanda Statute, supra note 105, art. 3. See also Statute of the International Tribunal, supra note 173, art. 5; Report of the Secretary General, supra note 173, ¶ 48.
  • 378
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    • U.N. GAOR, 49th Sess., Supp. No. 10, at 76, U.N. Doc. A/49/10
    • Report of the International Law Commission on the work of its forty-sixth session, U.N. GAOR, 49th Sess., Supp. No. 10, at 76, U.N. Doc. A/49/10 (1994). The International Law Commission explained Article 20 of the Draft Statute for an International Criminal Court using the quoted language. The Report defines the term "directed against any civilian population by repeating the exact same language from Article 3 of the Rwanda Statute, supra note 105 and accompanying text.
    • (1994) Report of the International Law Commission on the Work of Its Forty-sixth Session
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    • War crimes in Yugoslavia and the development of International Law
    • Id.
    • Theodor Meron, War Crimes in Yugoslavia and the Development of International Law, 88 AM. J. INT'L L. 78, 85 (1995) Many human rights conventions render certain types of behavior between citizens of the same state as international crimes whether committed in peace or war. The "tangled meshing" of crimes against humanity and human rights "militates against requiring a link with war for the former. The better opinion today . . . is that crimes against humanity exist independently of war." Id.
    • (1995) Am. J. Int'l L. , vol.88 , pp. 78
    • Meron, T.1
  • 380
    • 84923719984 scopus 로고    scopus 로고
    • note
    • Political groups are conspicuously absent from the list of protected groups under the Genocide Convention. Some states feared that including political groups under the Convention would create an unnecessary obstacle to ratification of the instrument. Webb, supra note 148, at 391. Thus, the fact that the Convention does not prohibit the widespread killing of political foes does not lead to the conclusion that such killings do not violate international law. Defining genocide as a continuum crime would close the loophole left by the Genocide Convention.
  • 382
    • 84923729230 scopus 로고    scopus 로고
    • supra note 43, at 594
    • Inadequate Reach of Humanitarian Law, supra note 43, at 594. The court in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), implicitly recognized torture as one of the jus cogens norms subject to international jurisdiction. The opinion does not use the term jus cogens, but states that "Among the rights universally proclaimed by all nations . . . is the right to be free of physical torture. Indeed, for purposes of civil liability, the torturer has become - like the pirate and the slave trader before him -hostis humani generis, an enemy of all mankind." Id. at 890. Accord Filartiga v. Pena-Irala, 577 F. Supp. 860, 865 (D.C. N.Y. 1984) ("it is essential and proper to grant the remedy of punitive damages in order to give effect to the manifest objectives of the international prohibition against torture"). See also Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1996) (Analyzing the status of torture as a violation of customary international law and upholding a civil suit against the leader of the Bosnian Serbs under the authority of the Torture Victim Protection Act of 1991).
    • Inadequate Reach of Humanitarian Law
  • 383
    • 0041941121 scopus 로고
    • The New International Law: Protecting the rights of individuals rather than states
    • G.A. Res. 2200A, Dec. 16, 1966, 21 GAOR, Supp. No. 16, at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976 [hereinafter Civil and Political Covenant]
    • Louis B Sohn, The New International Law: Protecting the Rights of Individuals Rather Than States, 32 AM. U.L. REV. 1, 9-12 (1982) (describing the instruments comprising the International Bill of Human Rights, as well as some fifty other instruments, declarations, and conventions on specific human rights and humanitarian issues). One example is the freedom of assembly enshrined in Article 20 of the Universal Declaration, supra note 193, and Article 21 of the Civil and Political Covenant, International Covenant on Civil and Political Rights, G.A. Res. 2200A, Dec. 16, 1966, 21 GAOR, Supp. No. 16, at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976 [hereinafter Civil and Political Covenant].
    • (1982) Am. U.L. Rev. , vol.32 , pp. 1
    • Sohn, L.B.1
  • 384
    • 84923719982 scopus 로고    scopus 로고
    • Dinstein, supra note 264, at 357
    • Dinstein, supra note 264, at 357.
  • 385
    • 0003439062 scopus 로고
    • 3d ed. Id.
    • IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 513 (3d ed. 1979) According to Brownlie, the major distinguishing feature of jus cogens norms such as those I call continuum crimes is their "relative indelibility. They are rules which cannot be set aside by treaty or acquiescence." Id.
    • (1979) Principles of Public International Law , pp. 513
    • Brownlie, I.A.N.1
  • 386
    • 84923719981 scopus 로고    scopus 로고
    • note
    • See supra notes 144-70 and accompanying text and notes 191-208 and accompanying text for descriptions of the legal basis for punishing genocide and torture, or other cruel, inhumane, or degrading treatment or punishment respectively.
  • 387
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    • 96th Cong., 1st Sess. Forti v. Suarez-Mason, 694 F. Supp. 707, 710 (N.D. Cal. 1988)
    • Human Rights and the Phenomenon of Disappearances: Hearings Before the Subcomm. on International Organizations of the House Comm. on Foreign Affairs, 96th Cong., 1st Sess. 79 (1979) (testimony by a representative of Amnesty International); Forti v. Suarez-Mason, 694 F. Supp. 707, 710 (N.D. Cal. 1988) (disappearances and state condoned killings violate rights under the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Declaration on the Rights and Duties of Man, and The American Convention on Human Rights, thereby violating customary international law).
    • (1979) Human Rights and the Phenomenon of Disappearances: Hearings before the Subcomm. on International Organizations of the House Comm. on Foreign Affairs , pp. 79
  • 388
    • 84923719980 scopus 로고    scopus 로고
    • note
    • Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, U.N. Doc. A/CONF.39/27, 1155 U.N.T.S. 331, art. 52 (1969), reprinted in 63 I.L.M. 875 (1969) [hereinafter Vienna Convention on the Law of Treaties] (articles 64, 66, and 71 all deal with the definition and application of jus cogens norms to the conduct of relations between nations). See also RESTATEMENT, supra note 12, § 102; supra note 166.
  • 389
    • 84923719979 scopus 로고    scopus 로고
    • Vienna Convention on the Law of Treaties, supra note 305, art. 53
    • Vienna Convention on the Law of Treaties, supra note 305, art. 53.
  • 390
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    • A memorial for Bosnia: Framework of legal arguments concerning the lawfulness of the maintenance of the United Nations security council's arms embargo on Bosnia and Herzegovina
    • Craig Scott et. al., A Memorial for Bosnia: Framework of Legal Arguments Concerning The Lawfulness of the Maintenance of the United Nations Security Council's Arms Embargo On Bosnia and Herzegovina, 16 MICH. J. INT'L L. 1, 24 (1994). The cited text refers to the International Court of Justice opinions in the Barcelona Traction case and the Reservations to the Convention on Genocide Case for the proposition that self determination and genocide are jus cogens norms. See also Erik Suy, The Concept of Jus Cogens in Public International Law, in GEORGE ABISAAB, INTRODUCTION TO THE CONCEPT OF JUS COGENS IN INTERNATIONAL LAW: PAPER AND PROCEEDINGS 17, 60 (1967) [hereinafter Suy].
    • (1994) Mich. J. Int'l L. , vol.16 , pp. 1
    • Scott, C.1
  • 391
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    • The concept of Jus Cogens in public International Law
    • GEORGE ABISAAB, hereinafter Suy
    • Craig Scott et. al., A Memorial for Bosnia: Framework of Legal Arguments Concerning The Lawfulness of the Maintenance of the United Nations Security Council's Arms Embargo On Bosnia and Herzegovina, 16 MICH. J. INT'L L. 1, 24 (1994). The cited text refers to the International Court of Justice opinions in the Barcelona Traction case and the Reservations to the Convention on Genocide Case for the proposition that self determination and genocide are jus cogens norms. See also Erik Suy, The Concept of Jus Cogens in Public International Law, in GEORGE ABISAAB, INTRODUCTION TO THE CONCEPT OF JUS COGENS IN INTERNATIONAL LAW: PAPER AND PROCEEDINGS 17, 60 (1967) [hereinafter Suy].
    • (1967) Introduction to the Concept of Jus Cogens in International Law: Paper and Proceedings , pp. 17
    • Erik, S.1
  • 392
    • 84923719978 scopus 로고    scopus 로고
    • RESTATEMENT, supra note 12, § 102 cmt. k.
    • RESTATEMENT, supra note 12, § 102 cmt. k.
  • 393
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    • Jus Cogens: Compelling the law of human rights
    • Karen Parker & Lyn B. Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 HASTINGS INT'L & COMP. L. REV. 411, 436 (1989).
    • (1989) Hastings Int'l & Comp. L. Rev. , vol.12 , pp. 411
    • Parker, K.1    Neylon, L.B.2
  • 394
    • 84923719977 scopus 로고    scopus 로고
    • Suy, supra note 307, at 53
    • Suy, supra note 307, at 53.
  • 395
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    • Human rights and humanitarian law
    • For example, Article 2, para. 1 of the Civil and Political Covenant, supra note 300, obligates states party "to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Present Convention . . ." Some scholars conclude that this language would allow states to avoid application of the Convention outside their territory. Dietrich Schindler, Human Rights and Humanitarian Law, 31 AM. U.L. REV. 935, 939 (1982). Other scholars debate Schindler's position, but all agree that the fundamental obligations of jus cogens norms apply to all states even when they seek policy objectives outside their boundaries. See Inadequate Reach of Humanitarian Law, supra note 43, at 595; Extraterritoriality of Human Rights Treaties, supra note 7; Thomas Buergenthal, To Respect and To Ensure: State Obligations and Permissible Derogations, in THE INTERNATIONAL BILL OF HUMAN RIGHTS 72, 74-77 (L. Henkin ed., 1981). In the context of a case regarding United States obligations under the Refugee Convention, the Supreme Court wrote that "a treaty cannot impose uncontemplated extraterritorial obligations on those who ratify it through no more than its general humanitarian intent." Sales v. Haitian Centers Council, Inc., 113 S. Ct. 2549, 2565 (1993). United States law thus appears to recognize the distinction between ordinary human rights obligations and the select class of actions which violate peremptory norms, and which thereby constitute jus cogens human rights.
    • (1982) Am. U.L. Rev. , vol.31 , pp. 935
    • Schindler, D.1
  • 396
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    • supra note 43
    • For example, Article 2, para. 1 of the Civil and Political Covenant, supra note 300, obligates states party "to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Present Convention . . ." Some scholars conclude that this language would allow states to avoid application of the Convention outside their territory. Dietrich Schindler, Human Rights and Humanitarian Law, 31 AM. U.L. REV. 935, 939 (1982). Other scholars debate Schindler's position, but all agree that the fundamental obligations of jus cogens norms apply to all states even when they seek policy objectives outside their boundaries. See Inadequate Reach of Humanitarian Law, supra note 43, at 595; Extraterritoriality of Human Rights Treaties, supra note 7; Thomas Buergenthal, To Respect and To Ensure: State Obligations and Permissible Derogations, in THE INTERNATIONAL BILL OF HUMAN RIGHTS 72, 74-77 (L. Henkin ed., 1981). In the context of a case regarding United States obligations under the Refugee Convention, the Supreme Court wrote that "a treaty cannot impose uncontemplated extraterritorial obligations on those who ratify it through no more than its general humanitarian intent." Sales v. Haitian Centers Council, Inc., 113 S. Ct. 2549, 2565 (1993). United States law thus appears to recognize the distinction between ordinary human rights obligations and the select class of actions which violate peremptory norms, and which thereby constitute jus cogens human rights.
    • Inadequate Reach of Humanitarian Law , pp. 595
  • 397
    • 84923734739 scopus 로고    scopus 로고
    • supra note 7
    • For example, Article 2, para. 1 of the Civil and Political Covenant, supra note 300, obligates states party "to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Present Convention . . ." Some scholars conclude that this language would allow states to avoid application of the Convention outside their territory. Dietrich Schindler, Human Rights and Humanitarian Law, 31 AM. U.L. REV. 935, 939 (1982). Other scholars debate Schindler's position, but all agree that the fundamental obligations of jus cogens norms apply to all states even when they seek policy objectives outside their boundaries. See Inadequate Reach of Humanitarian Law, supra note 43, at 595; Extraterritoriality of Human Rights Treaties, supra note 7; Thomas Buergenthal, To Respect and To Ensure: State Obligations and Permissible Derogations, in THE INTERNATIONAL BILL OF HUMAN RIGHTS 72, 74-77 (L. Henkin ed., 1981). In the context of a case regarding United States obligations under the Refugee Convention, the Supreme Court wrote that "a treaty cannot impose uncontemplated extraterritorial obligations on those who ratify it through no more than its general humanitarian intent." Sales v. Haitian Centers Council, Inc., 113 S. Ct. 2549, 2565 (1993). United States law thus appears to recognize the distinction between ordinary human rights obligations and the select class of actions which violate peremptory norms, and which thereby constitute jus cogens human rights.
    • Extraterritoriality of Human Rights Treaties
  • 398
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    • To respect and to ensure: State obligations and permissible derogations
    • L. Henkin ed.
    • For example, Article 2, para. 1 of the Civil and Political Covenant, supra note 300, obligates states party "to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Present Convention . . ." Some scholars conclude that this language would allow states to avoid application of the Convention outside their territory. Dietrich Schindler, Human Rights and Humanitarian Law, 31 AM. U.L. REV. 935, 939 (1982). Other scholars debate Schindler's position, but all agree that the fundamental obligations of jus cogens norms apply to all states even when they seek policy objectives outside their boundaries. See Inadequate Reach of Humanitarian Law, supra note 43, at 595; Extraterritoriality of Human Rights Treaties, supra note 7; Thomas Buergenthal, To Respect and To Ensure: State Obligations and Permissible Derogations, in THE INTERNATIONAL BILL OF HUMAN RIGHTS 72, 74-77 (L. Henkin ed., 1981). In the context of a case regarding United States obligations under the Refugee Convention, the Supreme Court wrote that "a treaty cannot impose uncontemplated extraterritorial obligations on those who ratify it through no more than its general humanitarian intent." Sales v. Haitian Centers Council, Inc., 113 S. Ct. 2549, 2565 (1993). United States law thus appears to recognize the distinction between ordinary human rights obligations and the select class of actions which violate peremptory norms, and which thereby constitute jus cogens human rights.
    • (1981) The International Bill of Human Rights , pp. 72
    • Buergenthal, T.1
  • 399
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    • Jus Dispositivum and Jus Cogens in International Law
    • Alfred Verdross, Jus Dispositivum and Jus Cogens in International Law, 60 AM. J. INT'L L. 55, 58 (1966).
    • (1966) Am. J. Int'l L. , vol.60 , pp. 55
    • Verdross, A.1
  • 402
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    • Aspects of the criminal responsibility for violations of the laws of war
    • Antonio Cassese ed.
    • International prosecution of international crimes is the exception, and prosecution in national courts is the rule. The most effective, frequent enforcement of international criminal law has been in national courts when national judges apply international criminal law or use national criminal statutes which codify international rules in a domestic context. Bert V.A. Roling, Aspects of the Criminal Responsibility For Violations of the Laws of War, in THE NEW HUMANITARIAN LAW OF ARMED CONFLICT 199, 201 (Antonio Cassese ed., 1979).
    • (1979) The New Humanitarian Law of Armed Conflict , pp. 199
    • Roling, B.V.A.1
  • 403
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    • note
    • Some courts have expanded the concept of crimes against humanity to include egregious violations of human rights, such as torture, summary executions, and disappearances. See, e.g., Velasquez Rodriguez Case, Inter-Am. Ct. H.R. 35, OAS/ser.L/V/III.19, doc. 13, app. VI PP149-58 (1988).
  • 404
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    • supra note 43
    • Eide et al., supra note 43, at 216 (describing the history and composition of the Declaration of Minimum Humanitarian Standards which is designed to be a "safety net" below which no victim should fall). As early as 1975, the President of the Swiss Red Cross proposed a declaration which would set out "in condensed form the fundamental rules of humanitarian law, and rendering the lofty ideas underlying humanitarian law clearly discernible and easily understandable." Inadequate Reach of Humanitarian Law, supra note 43, at 604.
    • Inadequate Reach of Humanitarian Law , pp. 604
  • 405
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    • The proscribing function of International Law in the processes of International Protection of Human Rights
    • See M. Cherif Bassiouni, The Proscribing Function of International Law in the Processes of International Protection of Human Rights, 9 YALE J. WORLD PUB. ORD. 1949 (1982). There are actually two competing schools of thought on the content of jus cogens norms. A. Mark Weisburd, The Emptiness of the Concept of Jus Cogens, As Illustrated by the War in Bosnia-Herzegovina, 17 MICH. J. INT'L L. 1, 32-38. The concept of jus cogens norms developed prior to the Vienna Convention, and some scholars view the content of jus cogens norms as being driven by the object of the norm. JERZY SZTUCKI, JUS COGENS AND THE VIENNA CONVENTION ON THE LAW OF TREATIES: A CRITICAL APPRAISAL 97-98, 103-105 (1974). This approach might be termed the natural law viewpoint. According to the natural law frame of reference, all other sources of law recognized by the International Court of Justice must "be subject to the rules of international law concerning jus cogens." Michael Akehurst, The Hierarchy of the Sources of International Law, 47 BRIT. Y.B. INT'L L. 273, 281-82 (1974-5). On the other hand, the clear language of Article 53 of the Vienna Convention makes the status of jus cogens norms dependent on acceptance by states. This might be termed the positive law approach. Applying either methodology, my list of continuum crimes constitutes jus cogens norms which generate universal jurisdiction. While the class of continuum crimes protects very basic, core human rights, they are all also defined and proscribed by a number of international instruments.
    • (1982) Yale J. World Pub. Ord. , vol.9 , pp. 1949
    • Bassiouni, M.C.1
  • 406
    • 0042441944 scopus 로고    scopus 로고
    • The emptiness of the concept of Jus Cogens, as illustrated by the war in Bosnia-Herzegovina
    • See M. Cherif Bassiouni, The Proscribing Function of International Law in the Processes of International Protection of Human Rights, 9 YALE J. WORLD PUB. ORD. 1949 (1982). There are actually two competing schools of thought on the content of jus cogens norms. A. Mark Weisburd, The Emptiness of the Concept of Jus Cogens, As Illustrated by the War in Bosnia-Herzegovina, 17 MICH. J. INT'L L. 1, 32-38. The concept of jus cogens norms developed prior to the Vienna Convention, and some scholars view the content of jus cogens norms as being driven by the object of the norm. JERZY SZTUCKI, JUS COGENS AND THE VIENNA CONVENTION ON THE LAW OF TREATIES: A CRITICAL APPRAISAL 97-98, 103-105 (1974). This approach might be termed the natural law viewpoint. According to the natural law frame of reference, all other sources of law recognized by the International Court of Justice must "be subject to the rules of international law concerning jus cogens." Michael Akehurst, The Hierarchy of the Sources of International Law, 47 BRIT. Y.B. INT'L L. 273, 281-82 (1974-5). On the other hand, the clear language of Article 53 of the Vienna Convention makes the status of jus cogens norms dependent on acceptance by states. This might be termed the positive law approach. Applying either methodology, my list of continuum crimes constitutes jus cogens norms which generate universal jurisdiction. While the class of continuum crimes protects very basic, core human rights, they are all also defined and proscribed by a number of international instruments.
    • Mich. J. Int'l L. , vol.17 , pp. 1
    • Weisburd, A.M.1
  • 407
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    • See M. Cherif Bassiouni, The Proscribing Function of International Law in the Processes of International Protection of Human Rights, 9 YALE J. WORLD PUB. ORD. 1949 (1982). There are actually two competing schools of thought on the content of jus cogens norms. A. Mark Weisburd, The Emptiness of the Concept of Jus Cogens, As Illustrated by the War in Bosnia-Herzegovina, 17 MICH. J. INT'L L. 1, 32-38. The concept of jus cogens norms developed prior to the Vienna Convention, and some scholars view the content of jus cogens norms as being driven by the object of the norm. JERZY SZTUCKI, JUS COGENS AND THE VIENNA CONVENTION ON THE LAW OF TREATIES: A CRITICAL APPRAISAL 97-98, 103-105 (1974). This approach might be termed the natural law viewpoint. According to the natural law frame of reference, all other sources of law recognized by the International Court of Justice must "be subject to the rules of international law concerning jus cogens." Michael Akehurst, The Hierarchy of the Sources of International Law, 47 BRIT. Y.B. INT'L L. 273, 281-82 (1974-5). On the other hand, the clear language of Article 53 of the Vienna Convention makes the status of jus cogens norms dependent on acceptance by states. This might be termed the positive law approach. Applying either methodology, my list of continuum crimes constitutes jus cogens norms which generate universal jurisdiction. While the class of continuum crimes protects very basic, core human rights, they are all also defined and proscribed by a number of international instruments.
    • (1974) Jus Cogens and the Vienna Convention on the Law of Treaties: A Critical Appraisal , pp. 97-98
    • Sztucki, J.1
  • 408
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    • The hierarchy of the sources of International Law
    • See M. Cherif Bassiouni, The Proscribing Function of International Law in the Processes of International Protection of Human Rights, 9 YALE J. WORLD PUB. ORD. 1949 (1982). There are actually two competing schools of thought on the content of jus cogens norms. A. Mark Weisburd, The Emptiness of the Concept of Jus Cogens, As Illustrated by the War in Bosnia-Herzegovina, 17 MICH. J. INT'L L. 1, 32-38. The concept of jus cogens norms developed prior to the Vienna Convention, and some scholars view the content of jus cogens norms as being driven by the object of the norm. JERZY SZTUCKI, JUS COGENS AND THE VIENNA CONVENTION ON THE LAW OF TREATIES: A CRITICAL APPRAISAL 97-98, 103-105 (1974). This approach might be termed the natural law viewpoint. According to the natural law frame of reference, all other sources of law recognized by the International Court of Justice must "be subject to the rules of international law concerning jus cogens." Michael Akehurst, The Hierarchy of the Sources of International Law, 47 BRIT. Y.B. INT'L L. 273, 281-82 (1974-5). On the other hand, the clear language of Article 53 of the Vienna Convention makes the status of jus cogens norms dependent on acceptance by states. This might be termed the positive law approach. Applying either methodology, my list of continuum crimes constitutes jus cogens norms which generate universal jurisdiction. While the class of continuum crimes protects very basic, core human rights, they are all also defined and proscribed by a number of international instruments.
    • (1974) Brit. Y.B. Int'l L. , vol.47 , pp. 273
    • Akehurst, M.1
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    • State responsibility to investigate and prosecute grave human rights violations in International Law
    • For a fascinating discussion of the efforts some governments have made to punish perpetrators See Naomi Roht-Arriaza, Comment, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 CALIF. L. REV. 451 (1990). See also Jordan J. Paust, Applicability of International Criminal Laws to Events in the Former Yugoslavia, 9 AM. U.J. INT'L L. & POL'Y 499 (1994); Louis Gentile, Terror Seems Uncannily Normal, N.Y. TIMES, Jan. 14, 1994, at A14 (Canadian diplomat with the High Commissioner for Refugees lamenting the lack of effective protection, adding "[t]he so-called leaders of the Western world have known what is happening here for the last year and a half. They receive play by play reports They talk of prosecuting war criminals, but do nothing to stop the crimes. May God forgive them. May God forgive us all."); M. Cherif Bassiouni, "Crimes Against Humanity": The Need for a Specialized Convention, 31 COLUM. J. TRANSNAT'L L. 457, 492 (1994) ("present passivity . . . tragic inaction of the world's major powers, who have failed to prevent or stop these events").
    • (1990) Calif. L. Rev. , vol.78 , pp. 451
    • Roht-Arriaza, N.1
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    • Applicability of International Criminal Laws to events in the former Yugoslavia
    • For a fascinating discussion of the efforts some governments have made to punish perpetrators See Naomi Roht-Arriaza, Comment, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 CALIF. L. REV. 451 (1990). See also Jordan J. Paust, Applicability of International Criminal Laws to Events in the Former Yugoslavia, 9 AM. U.J. INT'L L. & POL'Y 499 (1994); Louis Gentile, Terror Seems Uncannily Normal, N.Y. TIMES, Jan. 14, 1994, at A14 (Canadian diplomat with the High Commissioner for Refugees lamenting the lack of effective protection, adding "[t]he so-called leaders of the Western world have known what is happening here for the last year and a half. They receive play by play reports They talk of prosecuting war criminals, but do nothing to stop the crimes. May God forgive them. May God forgive us all."); M. Cherif Bassiouni, "Crimes Against Humanity": The Need for a Specialized Convention, 31 COLUM. J. TRANSNAT'L L. 457, 492 (1994) ("present passivity . . . tragic inaction of the world's major powers, who have failed to prevent or stop these events").
    • (1994) Am. U.J. Int'l L. & Pol'y , vol.9 , pp. 499
    • Paust, J.J.1
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    • Jan. 14
    • For a fascinating discussion of the efforts some governments have made to punish perpetrators See Naomi Roht-Arriaza, Comment, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 CALIF. L. REV. 451 (1990). See also Jordan J. Paust, Applicability of International Criminal Laws to Events in the Former Yugoslavia, 9 AM. U.J. INT'L L. & POL'Y 499 (1994); Louis Gentile, Terror Seems Uncannily Normal, N.Y. TIMES, Jan. 14, 1994, at A14 (Canadian diplomat with the High Commissioner for Refugees lamenting the lack of effective protection, adding "[t]he so-called leaders of the Western world have known what is happening here for the last year and a half. They receive play by play reports They talk of prosecuting war criminals, but do nothing to stop the crimes. May God forgive them. May God forgive us all."); M. Cherif Bassiouni, "Crimes Against Humanity": The Need for a Specialized Convention, 31 COLUM. J. TRANSNAT'L L. 457, 492 (1994) ("present passivity . . . tragic inaction of the world's major powers, who have failed to prevent or stop these events").
    • (1994) N.Y. Times
    • Gentile, L.1
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    • For a fascinating discussion of the efforts some governments have made to punish perpetrators See Naomi Roht-Arriaza, Comment, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 CALIF. L. REV. 451 (1990). See also Jordan J. Paust, Applicability of International Criminal Laws to Events in the Former Yugoslavia, 9 AM. U.J. INT'L L. & POL'Y 499 (1994); Louis Gentile, Terror Seems Uncannily Normal, N.Y. TIMES, Jan. 14, 1994, at A14 (Canadian diplomat with the High Commissioner for Refugees lamenting the lack of effective protection, adding "[t]he so-called leaders of the Western world have known what is happening here for the last year and a half. They receive play by play reports They talk of prosecuting war criminals, but do nothing to stop the crimes. May God forgive them. May God forgive us all."); M. Cherif Bassiouni, "Crimes Against Humanity": The Need for a Specialized Convention, 31 COLUM. J. TRANSNAT'L L. 457, 492 (1994) ("present passivity . . . tragic inaction of the world's major powers, who have failed to prevent or stop these events").
    • (1994) Colum. J. Transnat'l L. , vol.31 , pp. 457
    • Bassiouni, M.C.1
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    • note
    • Attorney General of Israel v. Eichmann, Israel Sup. Ct. (1962), 36 Int'l L. Rep. 277 (1968), reprinted in II THE LAW OF WAR: A DOCUMENTARY HISTORY 1627, 1673 (Leon Friedman ed., 1972). In this famous case, Israel exercised universal jurisdiction over Adolf Eichmann. Israeli agents abducted Eichmann in Argentina and returned him to Jerusalem to stand trial for crimes against humanity. Israel did not even exist at the time the crimes occurred, and this case shows that neutral states can prosecute grave breaches of the Geneva Conventions case.
  • 414
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    • RICHARD B. LILLICH, INVOKING INTERNATIONAL LAW IN DOMESTIC COURTS (1985). See also Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714-16, cert, denied 113 S. Ct. 1812 (1993) (acts of torture were violations of jus cogens and customary international law, although the provisions of the Foreign Sovereign Immunities Acts still apply). In the Eichmann case, supra note 320, Israel applied a domestic statute criminalizing crimes against humanity "done during the period of the Nazi regime in an enemy country." Waldemar A. Solf, War Crimes and the Nuremberg Principle, in JOHN N. MOORE ET AL., NATIONAL SECURITY LAW 359-379 (1990).
    • (1985) Invoking International Law in Domestic Courts
    • Lillich, R.B.1
  • 415
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    • War crimes and the Nuremberg principle
    • JOHN N. MOORE ET AL.
    • RICHARD B. LILLICH, INVOKING INTERNATIONAL LAW IN DOMESTIC COURTS (1985). See also Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714-16, cert, denied 113 S. Ct. 1812 (1993) (acts of torture were violations of jus cogens and customary international law, although the provisions of the Foreign Sovereign Immunities Acts still apply). In the Eichmann case, supra note 320, Israel applied a domestic statute criminalizing crimes against humanity "done during the period of the Nazi regime in an enemy country." Waldemar A. Solf, War Crimes and the Nuremberg Principle, in JOHN N. MOORE ET AL., NATIONAL SECURITY LAW 359-379 (1990).
    • (1990) National Security Law , pp. 359-379
    • Solf, W.A.1
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    • 2d ed.
    • Case Concerning Application of the Convention on Prevention and Punishment of Crime of Genocide (Bosnia-Herzegovina v. Yugo., Serbia, and Montenegro), Further Requests for the Indication of Provisional Measures, 1993 I.C.J. 325 (Sept. 13, 1993) (Separate Opinion of Judge Lauterpacht), ¶ 100. See generally RICHARD B. LILLICH, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW, POLICY, AND PRACTICE 766-864 (2d ed. 1991) (describing the various human rights instruments as they relate to the established humanitarian laws of war); RESTATEMENT, supra note 12, § 102(international agreements which violate jus cogens norms are void, thereby showing that jus cogens norms sit atop the hierarchy of international law).
    • (1991) International Human Rights: Problems of Law, Policy, and Practice , pp. 766-864
    • Lillich, R.B.1
  • 418
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    • For a discussion of the legal consequences of the state of "war" in modern international law, see generally YORAM DINSTEIN, WAR, AGGRESSION, AND SELF DEFENSE 140-161 (1988) (concluding that even when the United Nations Security Council deems armed action by a state to be unlawful aggression, individual soldiers on either side who kill enemy soldiers are immunized from criminal prosecution so long as they obey the laws of war).
    • (1988) War, Aggression, and Self Defense , pp. 140-161
    • Dinstein, Y.1
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    • Taylor, supra note 323, at 19-20
    • Taylor, supra note 323, at 19-20.
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    • Dinstein, supra note 264, at 357
    • Dinstein, supra note 264, at 357.
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    • note
    • Civilians Convention, supra note 4, art. 3; Convention on Prisoners of War, id.; Convention on Sick and Wounded, id.; Convention on Sick and Wounded at Sea, id.
  • 422
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    • The relationship between the human rights regime and the law of armed conflicts
    • hereinafter Draper
    • G.I.A.D. Draper, The Relationship Between the Human Rights Regime and the Law of Armed Conflicts, 1 ISR. Y.B. INT'L L. 191, 202 (1971) [hereinafter Draper].
    • (1971) ISR. Y.B. Int'l L. , vol.1 , pp. 191
    • Draper, G.I.A.D.1
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    • Towards a humanitarian declaration on internal strife
    • See Theodor Meron, Towards a Humanitarian Declaration on Internal Strife, 78 AM. J. INT'L L. 859, 865-66 (1984); Hernan Montealegre, The Compatibility of a State Party's Derogation Under Human Rights Conventions with Its Obligations Under Protocol II and Common Article 3, 33 AM. U.L. REV. 41, 44 (1983); Waldemar A. Solf, Problems with the Application of Norms Governing Interstate Armed Conflict to Non-International Armed Conflict, 13 GA. J. INT'L & COMP. L. 291 (1983).
    • (1984) Am. J. Int'l L. , vol.78 , pp. 859
    • Meron, T.1
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    • The compatibility of a state party's derogation under human rights conventions with its obligations under protocol II and common article 3
    • See Theodor Meron, Towards a Humanitarian Declaration on Internal Strife, 78 AM. J. INT'L L. 859, 865-66 (1984); Hernan Montealegre, The Compatibility of a State Party's Derogation Under Human Rights Conventions with Its Obligations Under Protocol II and Common Article 3, 33 AM. U.L. REV. 41, 44 (1983); Waldemar A. Solf, Problems with the Application of Norms Governing Interstate Armed Conflict to Non-International Armed Conflict, 13 GA. J. INT'L & COMP. L. 291 (1983).
    • (1983) Am. U.L. Rev. , vol.33 , pp. 41
    • Montealegre, H.1
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    • Problems with the application of norms governing interstate armed conflict to Non-International armed conflict
    • See Theodor Meron, Towards a Humanitarian Declaration on Internal Strife, 78 AM. J. INT'L L. 859, 865-66 (1984); Hernan Montealegre, The Compatibility of a State Party's Derogation Under Human Rights Conventions with Its Obligations Under Protocol II and Common Article 3, 33 AM. U.L. REV. 41, 44 (1983); Waldemar A. Solf, Problems with the Application of Norms Governing Interstate Armed Conflict to Non-International Armed Conflict, 13 GA. J. INT'L & COMP. L. 291 (1983).
    • (1983) Ga. J. Int'l & Comp. L. , vol.13 , pp. 291
  • 426
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    • note
    • Although its character as customary international law is open to debate, Protocol II applies to "all armed conflicts . . . which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol." Protocol II, supra note 4. art. 1, para. 1.
  • 427
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    • Additional protocol II: History and scope
    • Sylvie Junod, Additional Protocol II: History and Scope, 33 AM. U.L. REV. 29, 34 (1983). In the context of considering the relationship between Common Article 3, Protocol II, and the class of continuum crimes, it is important to note that Protocol II itself merely "develops and supplements Article 3 common to the Geneva Conventions of 1949 without modifying its existing conditions of application." Protocol II, supra note 4, art. 1.
    • (1983) Am. U.L. Rev. , vol.33 , pp. 29
    • Junod, S.1
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    • A tentative appraisal of the old and new humanitarian law of armed conflict
    • Id. Antonio Cassese ed.
    • Id. See also Antonio Cassesse, A Tentative Appraisal of the Old and New Humanitarian Law of Armed Conflict, THE NEW HUMANITARIAN LAW OF ARMED CONFLICT 461-501 (Antonio Cassese ed., 1979).
    • (1979) The New Humanitarian Law of Armed Conflict , pp. 461-501
    • Cassesse, A.1
  • 430
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    • 2d ed.
    • Message from the President Transmitting Protocol II Additional to the 1949 Geneva Conventions, and Relating to the Protection of Victims of Noninternational Armed Conflicts, S. TREATY DOC. 2, 100TH CONG., 1st Sess. III, IV (1987), reprinted in RICHARD B. LILLICH, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW, POLICY, AND PRACTICE 822-824 (2d ed. 1991).
    • (1991) International Human Rights: Problems of Law, Policy, and Practice , pp. 822-824
    • Lillich, R.B.1
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    • John Carey ed.
    • Parkerson, supra note 9, at 35-46 (discussing the difficulty of applying humanitarian law standards to operations that possess many of the characteristics of both international and internal armed conflicts). Professor Levy commented that the lack of a method for determining the automatic application of the laws of war to a particular situation is "one of the major inadequacies of the present law of armed conflict." HOWARD S. LEVY, WHEN BATTLE RAGES, HOW CAN LAW PROTECT? 6 (John Carey ed., 1971). See also Francoise J. Hampson, Human Rights Law and International Humanitarian Law: Two Sides of the Same Coin? 46, 50-51, UNITED NATIONS CENTRE FOR HUMAN RIGHTS, BULLETIN OF HUMAN RIGHTS 91/1 (1992).
    • (1971) When Battle Rages, How Can Law Protect? , pp. 6
    • Levy, H.S.1
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    • 50
    • Parkerson, supra note 9, at 35-46 (discussing the difficulty of applying humanitarian law standards to operations that possess many of the characteristics of both international and internal armed conflicts). Professor Levy commented that the lack of a method for determining the automatic application of the laws of war to a particular situation is "one of the major inadequacies of the present law of armed conflict." HOWARD S. LEVY, WHEN BATTLE RAGES, HOW CAN LAW PROTECT? 6 (John Carey ed., 1971). See also Francoise J. Hampson, Human Rights Law and International Humanitarian Law: Two Sides of the Same Coin? 46, 50-51, UNITED NATIONS CENTRE FOR HUMAN RIGHTS, BULLETIN OF HUMAN RIGHTS 91/1 (1992).
    • (1992) United Nations Centre for Human Rights, Bulletin of Human Rights , vol.46-51 , Issue.1 , pp. 91
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    • The role of law in modern war
    • Richard R. Baxter, The Role of Law in Modern War, 1953 AM. SOC'Y INT'L L. PROC. 90, 95-98 ("No more can we allow abstract considerations about the changing nature of hostilities to blind us to the fact that the use of force, whether called war or enforcement action, causes suffering to human beings, and that it is human suffering which the law of war attempts to mitigate."). See also Joseph Kunz, The Laws of War, 50 AM. J. INT'L L. 313 (1956); Fritz Grob, THE RELATIVITY OF WAR AND PEACE (1949).
    • Am. Soc'y Int'l L. Proc. , vol.1953 , pp. 90
    • Baxter, R.R.1
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    • Richard R. Baxter, The Role of Law in Modern War, 1953 AM. SOC'Y INT'L L. PROC. 90, 95-98 ("No more can we allow abstract considerations about the changing nature of hostilities to blind us to the fact that the use of force, whether called war or enforcement action, causes suffering to human beings, and that it is human suffering which the law of war attempts to mitigate."). See also Joseph Kunz, The Laws of War, 50 AM. J. INT'L L. 313 (1956); Fritz Grob, THE RELATIVITY OF WAR AND PEACE (1949).
    • (1956) Am. J. Int'l L. , vol.50 , pp. 313
    • Kunz, J.1
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    • Richard R. Baxter, The Role of Law in Modern War, 1953 AM. SOC'Y INT'L L. PROC. 90, 95-98 ("No more can we allow abstract considerations about the changing nature of hostilities to blind us to the fact that the use of force, whether called war or enforcement action, causes suffering to human beings, and that it is human suffering which the law of war attempts to mitigate."). See also Joseph Kunz, The Laws of War, 50 AM. J. INT'L L. 313 (1956); Fritz Grob, THE RELATIVITY OF WAR AND PEACE (1949).
    • (1949) The Relativity of War and Peace
    • Grob, F.1
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    • supra note 43, See also Draper, supra note 328, at 199-201
    • Inadequate Reach of Humanitarian Law, supra note 43, at 592. See also Draper, supra note 328, at 199-201; G. BEST, HUMANITY IN WARFARE 157-215 (1980); PAUL CHRISTOPHER, THE ETHICS OF WAR & PEACE: AN INTRODUCTION TO LEGAL AND MORAL ISSUES 165-188 (1994).
    • Inadequate Reach of Humanitarian Law , pp. 592
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    • Inadequate Reach of Humanitarian Law, supra note 43, at 592. See also Draper, supra note 328, at 199-201; G. BEST, HUMANITY IN WARFARE 157-215 (1980); PAUL CHRISTOPHER, THE ETHICS OF WAR & PEACE: AN INTRODUCTION TO LEGAL AND MORAL ISSUES 165-188 (1994).
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    • Best, G.1
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    • International Law approaches the twenty-first century: A U.S. Perspective on enforcement
    • Speaking to an audience at the Fordham School of Law, the United States Ambassador to the United Nations made this point quite well, albeit indirectly: I need not recount the suffering that has been visited upon the people of the regions for which these tribunals were created [Rwanda and the Former Yugoslavia]. The images are seared in our brains. This is not "heat of battle" violence, and the victims were not in the terminology of the soldier collateral damage. The victims were men and women, boys and girls, targeted intentionally not because of what they had done, but for who they were." Ambassador Madeleine K. Albright, International Law Approaches The Twenty-First Century: A U.S. Perspective on Enforcement, 18 FORDHAM INT'L L.J. 1595, 1603 (1995).
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    • Albright, M.K.1
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    • note
    • See, e.g., FM 27-10, supra note 4, para. 43(c) (requiring warnings to the civilian population before assaults "when the situation permits"); Protocol I, supra note 4, art. 57(2)(c) ("effective warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit."). The Geneva Conventions weigh military necessity against operational requirements before according special status to various groups of "protected persons." For this reason, there cannot be a defense of military necessity for violating the rights of "protected persons".
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    • Applicability of multilateral conventions to occupied territories
    • Theodor Meron, Applicability of Multilateral Conventions to Occupied Territories, 72 AM. J. INT'L L. 542 (1978).
    • (1978) Am. J. Int'l L. , vol.72 , pp. 542
    • Meron, T.1
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    • note
    • Civilians Convention, supra note 4, art. 7; Convention on Prisoners of War, id., art. 6; Convention on Sick and Wounded, id., art. 6: Convention on Sick and Wounded at Sea, id., art. 6. Professor Dinstein wrote that this provision reflects the common sense proposition that protected persons are entitled to their human rights independently of state rights, and states may not therefore renounce rights which do not belong to them. Dinstein, supra note 264, at 357.
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    • note
    • Based on the customary international law status of the laws of war, all states share the same obligations with regard to war crimes. The duties of all states under international law stem from the principle aut dedere out punire (extradite or prosecute). See Civilians Convention, supra note 4, art. 146; Convention on Prisoners of War, id., art. 129; Convention on Sick and Wounded, id., art. 49; Convention on Sick and Wounded at Sea, id., art. 50.
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    • The law of war and the national jurisdiction since 1945
    • Convention on Prisoners of War, supra note 4, art. 129. Judge Roling noted that the distinction between grave and non-grave breaches could revolve around nothing more complicated than the distinction between the right to prosecute crimes and the obligation to prosecute or extradite grave breaches. B.V.A. Roling, The Law of War and the National Jurisdiction Since 1945, 100 RECUIL DES COURS 325, 342 (1960). Accord Waldemar A. Solf & Edward R. Cummings, A Survey of Penal Sanctions under Protocol I to the Geneva Conventions of August 12, 1949, 9 CASE W. RES. J. INT'L L. 205 (1977) ("the system of grave breaches seems to assume that non-grave breaches are to be treated as war crimes for whose suppression States have a duty to take all necessary measures necessary, which measures are left to the state's discretion, and may include punitive prosecutions, disciplinary, or other administrative sanctions"). See also Oren Gross, The Grave Breaches System and the Armed Conflict in the Former Yugoslavia, 16 MICH. J. INT'L L. 783 (1995).
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    • A survey of penal sanctions under protocol I to the Geneva conventions of august 12, 1949
    • Convention on Prisoners of War, supra note 4, art. 129. Judge Roling noted that the distinction between grave and non-grave breaches could revolve around nothing more complicated than the distinction between the right to prosecute crimes and the obligation to prosecute or extradite grave breaches. B.V.A. Roling, The Law of War and the National Jurisdiction Since 1945, 100 RECUIL DES COURS 325, 342 (1960). Accord Waldemar A. Solf & Edward R. Cummings, A Survey of Penal Sanctions under Protocol I to the Geneva Conventions of August 12, 1949, 9 CASE W. RES. J. INT'L L. 205 (1977) ("the system of grave breaches seems to assume that non-grave breaches are to be treated as war crimes for whose suppression States have a duty to take all necessary measures necessary, which measures are left to the state's discretion, and may include punitive prosecutions, disciplinary, or other administrative sanctions"). See also Oren Gross, The Grave Breaches System and the Armed Conflict in the Former Yugoslavia, 16 MICH. J. INT'L L. 783 (1995).
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    • Solf, W.A.1    Cummings, E.R.2
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    • The grave breaches system and the armed conflict in the former Yugoslavia
    • Convention on Prisoners of War, supra note 4, art. 129. Judge Roling noted that the distinction between grave and non-grave breaches could revolve around nothing more complicated than the distinction between the right to prosecute crimes and the obligation to prosecute or extradite grave breaches. B.V.A. Roling, The Law of War and the National Jurisdiction Since 1945, 100 RECUIL DES COURS 325, 342 (1960). Accord Waldemar A. Solf & Edward R. Cummings, A Survey of Penal Sanctions under Protocol I to the Geneva Conventions of August 12, 1949, 9 CASE W. RES. J. INT'L L. 205 (1977) ("the system of grave breaches seems to assume that non-grave breaches are to be treated as war crimes for whose suppression States have a duty to take all necessary measures necessary, which measures are left to the state's discretion, and may include punitive prosecutions, disciplinary, or other administrative sanctions"). See also Oren Gross, The Grave Breaches System and the Armed Conflict in the Former Yugoslavia, 16 MICH. J. INT'L L. 783 (1995).
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    • Bush: "I miscalculated" in not forcing out Saddam
    • Jan. 15
    • 10 U.S.C. §§ 818, 821 (1995); 18 U.S.C. § 3231 (1995); See also War Crimes Act of 1996, Pub. L. No. 104-192 (1996) (to be codified at 18 U.S.C. § 2401). At the conclusion of the Gulf War, President Bush affirmed the proposition that Saddam Hussein and other top Iraqi officials were responsible for numerous violations of international law: "And this I promise you. For all that Saddam has done to his own people, to the Kuwaitis and to the entire world, Saddam Hussein and those around him are accountable." President Bush's Address to the Joint Session of Congress, reprinted in WASH. POST, Mar. 7, 1991, at A32. President Bush later admitted regrets for not removing Saddam Hussein from power. Of course, prosecution and imprisonment for his crimes would have removed the Iraqi president. In an interview on the fifth anniversary of the war, President Bush admitted "I miscalculated . . . . You don't cut off part of the snake, you kill the snake . . . . We blew it." Carrie Dowling, Bush: "I Miscalculated" in Not Forcing out Saddam, USA TODAY, Jan. 15, 1996, at A1.
    • (1996) USA Today
    • Dowling, C.1
  • 449
    • 2942740511 scopus 로고    scopus 로고
    • art. 38, ¶ 1, June 26, 1945, 59 Stat. 1031, T.I.A.S. No. 993, 3 Bevans 1153
    • The full force of international law proscribes continuum crimes from every potential source. International law springs from four sources: international conventions; international custom, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; and judicial decisions and the teachings of the most highly qualified publicists of the various nations. STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, art. 38, ¶ 1, June 26, 1945, 59 Stat. 1031, T.I.A.S. No. 993, 3 Bevans 1153.
    • Statute of the International Court of Justice
  • 451
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    • Meron, supra note 40, at 561
    • Meron, supra note 40, at 561.
  • 452
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    • Sept. 27
    • Universal Declaration, supra note 193, preamble. In his first speech before the United Nations, President Clinton reminded that body that human rights are not something conditional, founded by culture, but rather something universal granted by God. The United States urged the creation of the United Nations High Commissioner for Human Rights. 6 DEP'T OF STATE DISPATCH 27 (Sept. 27, 1993).
    • (1993) Dep't of State Dispatch , vol.6 , pp. 27
  • 453
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    • 2d ed.
    • See generally RICHARD B. LILLICH, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW, POLICY, AND PRACTICE 938-1053 (2d ed. 1991) (describing the role of human rights issues in the last three administrations and commenting on the political factors underlying policy choices with human rights implications).
    • (1991) International Human Rights: Problems of Law, Policy, and Practice , pp. 938-1053
    • Lillich, R.B.1
  • 454
    • 0003542018 scopus 로고
    • Feb.
    • 22 U.S.C. § 2304 (a)(1) (1995). The National Security Strategy of the United States seeks to enhance United States security through a dual strategy of "engagement and enlargement." THE WHITE HOUSE, A NATIONAL SECURITY STRATEGY OF ENGAGEMENT AND ENLARGEMENT (Feb. 1995). "Engagement" refers to selected uses of military and diplomatic power designed to "help resolve problems, reduce tensions and defuse conflicts before they become crises." Id. at 7. Figure 1 illustrates the range of operations encompassed by the term engagement. In contrast, the focus of "Enlargement" is to focus efforts towards increasing the number of democracies based on constitutional and free market principles. Id. at 22-25 ("Working with new democratic states to help preserve them as democracies committed to free markets and respect for human rights, is a key part of our national security strategy."). For example, Congress allowed efforts to train foreign police forces in "internationally recognized standards of human rights, the rule of law, anti-corruption, and the promotion of civilian roles that support democracy." Foreign Operations, Export Financing, And Related Programs Appropriations Act, Fiscal Year 1996, Pub. L. No. 104-107, § 540A(d), 110 Stat. 704 (1996), to be codified at 22 U.S.C. § 2420. See also Id. § 508 (specifying that none of the funds appropriated by Congress shall be obligated to assist any country whose duly elected Head of Government is deposed by a military coup); Id. § 585(a)(2) (outlining criteria for assessing the potential for countries emerging from communism to join NATO and focusing on progress towards accepting democratic principles such as free market economies, civilian control of the military and police, adherence to the rule of law, and commitment to protecting the rights of all citizens and the territorial integrity of their neighbors).
    • (1995) The White House, A National Security Strategy of Engagement and Enlargement
  • 455
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    • U.S. Military fears balkan intervention: Dual combat, relief role seen unworkable
    • Aug. 12
    • During the 1992 presidential campaign, President Clinton argued for military intervention in Bosnia to "restore some form of humanity." Barton Gellman, U.S. Military Fears Balkan Intervention: Dual Combat, Relief Role Seen Unworkable, WASH. POST, Aug. 12, 1992, at A24. Military planners recognized the inconsistencies in attempting to serve as both combatants and relief agents. Prosecution of criminals of either party to the conflict appears to favor one side in the conflict. In a pure peacekeeping role, absolute neutrality is the ideal tactical environment for American forces.
    • (1992) Wash. Post
    • Gellman, B.1
  • 456
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    • Tadic Brief, supra note 280, at 22 (copy on file with the author)
    • Tadic Brief, supra note 280, at 22 (copy on file with the author).
  • 457
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    • Atrocities leave thirst for vengeance in Balkans
    • Dec. 18, hereinafter Thirst for Vengeance
    • John Pomfret, Atrocities Leave Thirst for Vengeance in Balkans, WASH. POST, Dec. 18, 1995, at A1 [hereinafter Thirst for Vengeance] (the cited article is the second in a three part series entitled Between War and Peace: Seeking Justice for the Balkans).
    • (1995) Wash. Post
    • Pomfret, J.1
  • 458
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    • Nuremberg: The final act of the European War
    • December
    • Lieutenant Colonel H. Wayne Elliott (ret.), Nuremberg: The Final Act of the European War, ARMY 22, 28 (December 1995).
    • (1995) Army , pp. 22
    • Elliott, H.W.1
  • 459
    • 84923721890 scopus 로고    scopus 로고
    • supra note 353
    • Thirst for Vengeance, supra note 353, at A17 (noting experts' estimates that the conflict in Bosnia has driven up to 3 million civilians from their homes).
    • Thirst for Vengeance
  • 460
    • 0041034274 scopus 로고
    • Command responsibility in the former Yugoslavia: The chances for successful prosecution
    • Note
    • Christopher N. Crowe, Note, Command Responsibility in the Former Yugoslavia: The Chances For Successful Prosecution, 29 U. RICH. L. REV. 191 (1994).
    • (1994) U. Rich. L. Rev. , vol.29 , pp. 191
    • Crowe, C.N.1
  • 462
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    • U.N. War crimes charges complicate peace talks among Balkan factions
    • Sept. 29
    • David Wood, U.N. War Crimes Charges Complicate Peace Talks Among Balkan Factions, SACRAMENTO BEE, Sept. 29, 1995, at B9.
    • (1995) Sacramento Bee
    • Wood, D.1
  • 463
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    • Id.
    • Id.
  • 464
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    • Possible use of American military tribunals to punish offenses against the law of nations
    • Robinson & Silliman, supra note 51;
    • Robinson & Silliman, supra note 51; Robinson O. Everett, Possible Use of American Military Tribunals to Punish Offenses Against the Law of Nations, 34 VA. J. INT'L L. 289 (1994).
    • (1994) Va. J. Int'l L. , vol.34 , pp. 289
    • Everett, R.O.1
  • 465
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    • 1994 Mclean lecture on World Law: The proposal for an International Criminal Court
    • See Robert B. Rosenstock, 1994 McLean Lecture on World Law: The Proposal for an International Criminal Court, 56 U. PITT. L. REV. 271 (1994) (comments by the legal counselor to the United States Mission to the United Nations); Vespasian V. Pella, Towards an International Criminal Court, 44 AM. J. INT'L L. 37 (1950); Quincy Wright, The Scope of International Criminal Law: A Conceptual Framework, 15 VA. J. INT'L L. 561 (1975); James Crawford, The ILC's Draft Statute for an International Criminal Tribunal, 88 AM. J. INT'L L. 140 (1994). But See Christopher L. Blakesley, War Crimes: Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 FLETCHER F. WORLD AFF. 77 (Summer/Fall 1994).
    • (1994) U. Pitt. L. Rev. , vol.56 , pp. 271
    • Rosenstock, R.B.1
  • 466
    • 0041941049 scopus 로고
    • Towards an International Criminal Court
    • See Robert B. Rosenstock, 1994 McLean Lecture on World Law: The Proposal for an International Criminal Court, 56 U. PITT. L. REV. 271 (1994) (comments by the legal counselor to the United States Mission to the United Nations); Vespasian V. Pella, Towards an International Criminal Court, 44 AM. J. INT'L L. 37 (1950); Quincy Wright, The Scope of International Criminal Law: A Conceptual Framework, 15 VA. J. INT'L L. 561 (1975); James Crawford, The ILC's Draft Statute for an International Criminal Tribunal, 88 AM. J. INT'L L. 140 (1994). But See Christopher L. Blakesley, War Crimes: Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 FLETCHER F. WORLD AFF. 77 (Summer/Fall 1994).
    • (1950) Am. J. Int'l L. , vol.44 , pp. 37
    • Pella, V.V.1
  • 467
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    • The scope of International Criminal Law: A conceptual framework
    • See Robert B. Rosenstock, 1994 McLean Lecture on World Law: The Proposal for an International Criminal Court, 56 U. PITT. L. REV. 271 (1994) (comments by the legal counselor to the United States Mission to the United Nations); Vespasian V. Pella, Towards an International Criminal Court, 44 AM. J. INT'L L. 37 (1950); Quincy Wright, The Scope of International Criminal Law: A Conceptual Framework, 15 VA. J. INT'L L. 561 (1975); James Crawford, The ILC's Draft Statute for an International Criminal Tribunal, 88 AM. J. INT'L L. 140 (1994). But See Christopher L. Blakesley, War Crimes: Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 FLETCHER F. WORLD AFF. 77 (Summer/Fall 1994).
    • (1975) Va. J. Int'l L. , vol.15 , pp. 561
    • Wright, Q.1
  • 468
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    • The ILC's draft statute for an International Criminal Tribunal
    • See Robert B. Rosenstock, 1994 McLean Lecture on World Law: The Proposal for an International Criminal Court, 56 U. PITT. L. REV. 271 (1994) (comments by the legal counselor to the United States Mission to the United Nations); Vespasian V. Pella, Towards an International Criminal Court, 44 AM. J. INT'L L. 37 (1950); Quincy Wright, The Scope of International Criminal Law: A Conceptual Framework, 15 VA. J. INT'L L. 561 (1975); James Crawford, The ILC's Draft Statute for an International Criminal Tribunal, 88 AM. J. INT'L L. 140 (1994). But See Christopher L. Blakesley, War Crimes: Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 FLETCHER F. WORLD AFF. 77 (Summer/Fall 1994).
    • (1994) Am. J. Int'l L. , vol.88 , pp. 140
    • Crawford, J.1
  • 469
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    • War crimes: Obstacles to the creation of a permanent war crimes tribunal
    • Summer/Fall
    • See Robert B. Rosenstock, 1994 McLean Lecture on World Law: The Proposal for an International Criminal Court, 56 U. PITT. L. REV. 271 (1994) (comments by the legal counselor to the United States Mission to the United Nations); Vespasian V. Pella, Towards an International Criminal Court, 44 AM. J. INT'L L. 37 (1950); Quincy Wright, The Scope of International Criminal Law: A Conceptual Framework, 15 VA. J. INT'L L. 561 (1975); James Crawford, The ILC's Draft Statute for an International Criminal Tribunal, 88 AM. J. INT'L L. 140 (1994). But See Christopher L. Blakesley, War Crimes: Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 FLETCHER F. WORLD AFF. 77 (Summer/Fall 1994).
    • (1994) Fletcher F. World Aff. , vol.18 , pp. 77
    • Blakesley, C.L.1
  • 470
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    • An analysis of the United Nations International Tribunal to adjudicate war crimes committed in the former Yugoslavia: Parallels, problems, prospects
    • Note
    • Mark A. Bland, Note, An Analysis of the United Nations International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia: Parallels, Problems, Prospects, 2 IND. J. GLOBAL STUD. 233 (1994) (recounting the adoption of Security Council Resolution 808 on 22 February 1993, followed by the Statute of the International Tribunal on 25 May 1993, followed by a six month delay before the Tribunal convened its first ceremonial session on 17 November 1993. As of this writing, the first trial is scheduled to begin in the summer of 1996). The leader of the Bosnian Serbs, Radovan Karadzic makes no secret of his contempt for the tribunal, in spite of or perhaps because of the indictment against him for atrocities in the former Yugoslavia. John Pomfret, Bosnian Serbs' Leader Stages Show of Defiance; Karadzic Tour Ends Months of Seclusion, WASH. POST, Feb. 10, 1996, at A1 (quoting the leader's assessment of the tribunal, "This is ridiculous. It is shameful what they are doing. They are accusing the political and military leadership without a shred of evidence. It is not a court or a tribunal. It is a form of lynching for the whole nation."). See also Terry Atlas, Atrocity Docket: U.N. Has Done Little to Prosecute Villains in Bosnia, CHI. TRIB., Feb. 13, 1994, at 1.
    • (1994) Ind. J. Global Stud. , vol.2 , pp. 233
    • Bland, M.A.1
  • 471
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    • Bosnian Serbs' leader stages show of defiance; karadzic tour ends months of seclusion
    • Feb. 10
    • Mark A. Bland, Note, An Analysis of the United Nations International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia: Parallels, Problems, Prospects, 2 IND. J. GLOBAL STUD. 233 (1994) (recounting the adoption of Security Council Resolution 808 on 22 February 1993, followed by the Statute of the International Tribunal on 25 May 1993, followed by a six month delay before the Tribunal convened its first ceremonial session on 17 November 1993. As of this writing, the first trial is scheduled to begin in the summer of 1996). The leader of the Bosnian Serbs, Radovan Karadzic makes no secret of his contempt for the tribunal, in spite of or perhaps because of the indictment against him for atrocities in the former Yugoslavia. John Pomfret, Bosnian Serbs' Leader Stages Show of Defiance; Karadzic Tour Ends Months of Seclusion, WASH. POST, Feb. 10, 1996, at A1 (quoting the leader's assessment of the tribunal, "This is ridiculous. It is shameful what they are doing. They are accusing the political and military leadership without a shred of evidence. It is not a court or a tribunal. It is a form of lynching for the whole nation."). See also Terry Atlas, Atrocity Docket: U.N. Has Done Little to Prosecute Villains in Bosnia, CHI. TRIB., Feb. 13, 1994, at 1.
    • (1996) Wash. Post
    • Pomfret, J.1
  • 472
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    • Atrocity docket: U.N. Has done little to prosecute Villains in Bosnia
    • Feb. 13
    • Mark A. Bland, Note, An Analysis of the United Nations International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia: Parallels, Problems, Prospects, 2 IND. J. GLOBAL STUD. 233 (1994) (recounting the adoption of Security Council Resolution 808 on 22 February 1993, followed by the Statute of the International Tribunal on 25 May 1993, followed by a six month delay before the Tribunal convened its first ceremonial session on 17 November 1993. As of this writing, the first trial is scheduled to begin in the summer of 1996). The leader of the Bosnian Serbs, Radovan Karadzic makes no secret of his contempt for the tribunal, in spite of or perhaps because of the indictment against him for atrocities in the former Yugoslavia. John Pomfret, Bosnian Serbs' Leader Stages Show of Defiance; Karadzic Tour Ends Months of Seclusion, WASH. POST, Feb. 10, 1996, at A1 (quoting the leader's assessment of the tribunal, "This is ridiculous. It is shameful what they are doing. They are accusing the political and military leadership without a shred of evidence. It is not a court or a tribunal. It is a form of lynching for the whole nation."). See also Terry Atlas, Atrocity Docket: U.N. Has Done Little to Prosecute Villains in Bosnia, CHI. TRIB., Feb. 13, 1994, at 1.
    • (1994) Chi. Trib. , pp. 1
    • Atlas, T.1
  • 473
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    • note
    • United States v. Alvarez-Machain, 112 S. Ct. 2188 (1992) (restating the doctrine of Kerr v. Illinois, 119 U.S. 436 (1986) that a federal court could try a defendant who had been kidnapped and returned to the United States for trial); United States v. Noriega, 808 F. Supp. 791 (S.D. Fla. 1992) (dismissing the former dictator's claim that he was a prisoner of war who could not be tried for violations of United States drug trafficking laws).
  • 474
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    • Deference and its dangers: Congress' power to "define . . . Offenses against the law of nations
    • U.S. CONST, art. I, § 8, cl. 10(giving Congress authority to "define and Punish Offenses against the Law of Nations."). See also Charles D. Siegal, Deference and Its Dangers: Congress' Power to "Define . . . Offenses Against the Law of Nations, 21 VAND. J. TRANSNAT'L L. 865 (1988).
    • (1988) Vand. J. Transnat'l L. , vol.21 , pp. 865
    • Siegal, C.D.1
  • 475
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    • supra note 7, United States v. Kahn, 35 F.3d 426, 430 9th Cir.
    • Congress specified the venue for extraterritorial crimes in 18 U.S.C. § 3238 (1995). This statute is a venue statute, but does not create any jurisdictional limitations on military commissions. With regard to enforcing domestic criminal legislation, the Posse Comitatus Act prohibits use of military assets "except in cases and under circumstances expressly authorized by the Constitution or Act of Congress." 18 U.S-C. § 1385 (1995). If Congress wants Article III courts sitting in the United States to prosecute continuum crimes, the domestic statute should allow military apprehension of suspects. In general, the Posse Comitatus Act, codified at 18 U.S.C. § 1385 (1995), does not have any extraterritorial effect. Opinion of the Office of the Legal Counsel, United States Department of Justice, Extraterritorial Effect of the Posse Comitatus Act, Nov. 3, 1989 (copy on file with the author). On the other hand, some scholars argue that United States apprehensions of foreign nationals would violate American obligations under the Civil and Political Covenant. Extraterritoriality of Human Rights Treaties, supra note 7, at 80. Even though the restrictions of Posse Comitatus do not apply overseas, some courts have hinted that the statutory restraints contained in 10 U.S.C. §§ 371-380 (1995) would restrict the law enforcement efforts of deployed forces. See, e.g., United States v. Kahn, 35 F.3d 426, 430 (9th Cir. 1994).
    • (1994) Extraterritoriality of Human Rights Treaties , pp. 80
  • 476
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    • Crime without punishment-ex-servicemen, civilian employees and dependents
    • See generally Robinson O. Everett & Laurent R. Hourcle, Crime Without Punishment-Ex-Servicemen, Civilian Employees and Dependents, 13 JAG L. REV. 184 (1971); Maryellen Fullerton, Hijacking Trials Overseas: The Need for an Article III Court, 28 Wm. & Mary L. Rev. 1 (1986)[hereinafter Hijacking Trials]. Cf. Jordan J. Paust, After My Lai: The Case for War Crime Jurisdiction Over Civilians in Federal District Courts, 50 TEX. L. REV. 6 (1971). Paust argues that a "federal district court may apply the international law of war under existing rules to trials of civilians." By analogy, Paust might argue that district courts have inherent authority to prosecute violations of international law committed by foreign nationals.
    • (1971) Jag L. Rev. , vol.13 , pp. 184
    • Everett, R.O.1    Hourcle, L.R.2
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    • Hijacking trials overseas: The need for an article III court
    • hereinafter Hijacking Trials
    • See generally Robinson O. Everett & Laurent R. Hourcle, Crime Without Punishment-Ex-Servicemen, Civilian Employees and Dependents, 13 JAG L. REV. 184 (1971); Maryellen Fullerton, Hijacking Trials Overseas: The Need for an Article III Court, 28 Wm. & Mary L. Rev. 1 (1986)[hereinafter Hijacking Trials]. Cf. Jordan J. Paust, After My Lai: The Case for War Crime Jurisdiction Over Civilians in Federal District Courts, 50 TEX. L. REV. 6 (1971). Paust argues that a "federal district court may apply the international law of war under existing rules to trials of civilians." By analogy, Paust might argue that district courts have inherent authority to prosecute violations of international law committed by foreign nationals.
    • (1986) Wm. & Mary L. Rev. , vol.28 , pp. 1
    • Fullerton, M.1
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    • After My Lai: The case for war crime jurisdiction over civilians in federal district courts
    • See generally Robinson O. Everett & Laurent R. Hourcle, Crime Without Punishment-Ex-Servicemen, Civilian Employees and Dependents, 13 JAG L. REV. 184 (1971); Maryellen Fullerton, Hijacking Trials Overseas: The Need for an Article III Court, 28 Wm. & Mary L. Rev. 1 (1986)[hereinafter Hijacking Trials]. Cf. Jordan J. Paust, After My Lai: The Case for War Crime Jurisdiction Over Civilians in Federal District Courts, 50 TEX. L. REV. 6 (1971). Paust argues that a "federal district court may apply the international law of war under existing rules to trials of civilians." By analogy, Paust might argue that district courts have inherent authority to prosecute violations of international law committed by foreign nationals.
    • (1971) Tex. L. Rev. , vol.50 , pp. 6
    • Paust, J.J.1
  • 479
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    • 746 F. Supp. 1506 (S.D. Fla. 1990)
    • 746 F. Supp. 1506 (S.D. Fla. 1990).
  • 480
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    • Id. at 1512
    • Id. at 1512.
  • 481
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    • Lack of extraterritorial jurisdiction over civilians: A new look at an old problem
    • hereinafter Gibson, Extraterritorial Jurisdiction
    • Major Susan S. Gibson, Lack of Extraterritorial Jurisdiction over Civilians: A New Look at an Old Problem, 148 MIL. L. REV. 114, 163 (1995) [hereinafter Gibson, Extraterritorial Jurisdiction]; Hijacking Trials, supra note 366, at 85 (Article III courts operating overseas are limited by the "ultimate legal authority" of the foreign government").
    • (1995) Mil. L. Rev. , vol.148 , pp. 114
    • Gibson, S.S.1
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    • supra note 366
    • Major Susan S. Gibson, Lack of Extraterritorial Jurisdiction over Civilians: A New Look at an Old Problem, 148 MIL. L. REV. 114, 163 (1995) [hereinafter Gibson, Extraterritorial Jurisdiction]; Hijacking Trials, supra note 366, at 85 (Article III courts operating overseas are limited by the "ultimate legal authority" of the foreign government").
    • Hijacking Trials , pp. 85
  • 483
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    • note
    • Telephone Interview with Lieutenant Colonel Richard Jackson, February 14, 1996. Lieutenant Colonel Jackson served in the Office of the Staff Judge Advocate, United States Atlantic Command, throughout the detainee operations at Guantánamo Bay, Cuba. Cuban detainees committed crimes against each other which threatened to destabilize the already restless camps. The commander requested judicial support, but no civilian judge ever deployed to help maintain order. In contrast, military judges were prepared to deploy to Somalia to support operations within forty-eight hours of a request from United States forces. United States Army Legal Services Agency Memorandum, subject: Military Judge Support (22 Dec. 1992) (identifying Colonel Peter Brownback as the judge identified for deployment to Somalia upon the commander's request).
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    • note
    • Gibson, supra note 369, at 162-70. See also United States v. Tiede, 86 F.R.D. 227 (U.S. Ct. for Berlin, 1979) (holding that United States constitutional guarantees apply to a foreign citizen being tried before an American court sitting overseas, but applying analysis which is inconsistent with the later Supreme Court opinion in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)).
  • 485
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    • Prosecuting Iraqi crimes: Fulfilling the expectations of International Law after the gulf war
    • Louis Rene Beres, Prosecuting Iraqi Crimes: Fulfilling the Expectations of International Law After the Gulf War, 10 DICK. J. INT'L L. 425-426 (1992).
    • (1992) Dick. J. Int'l L. , vol.10 , pp. 425-426
    • Beres, L.R.1
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    • Declaration on human rights
    • July 15, 1989, Sept. 1
    • Declaration on Human Rights, Address by President Bush, July 15, 1989, 89 DEP'T OF STATE BULLETIN 1 (Sept. 1, 1989).
    • (1989) Dep't of State Bulletin , vol.89 , pp. 1
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    • Meron, supra note 40, at 554
    • Meron, supra note 40, at 554.
  • 488
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    • note
    • Cambodian Genocide Justice Act, Pub. L. No. 103-236, 108 Stat. 486 (Apr. 30, 1994).
  • 489
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    • Beres, supra note 372, at 436-38
    • Beres, supra note 372, at 436-38.
  • 490
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    • Haitians feel sweet sorrow at U.S. Departure
    • Feb. 9
    • Douglas Farah, Haitians Feel Sweet Sorrow at U.S. Departure, WASH. POST, Feb. 9, 1996, at A25 (commenting on the barely functional court system, decaying courthouses, and poorly trained police forces).
    • (1996) Wash. Post
    • Farah, D.1
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    • America's failure in Lebanon
    • Apr. 8, at Sec. 6
    • Thomas L. Friedman, America's Failure in Lebanon, N.Y. TIMES, Apr. 8, 1984, at Sec. 6, page 32.
    • (1984) N.Y. Times , pp. 32
    • Friedman, T.L.1
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    • Id.
    • Id.
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    • Bosnia in light of the holocaust: War crimes tribunals
    • Apr. 18
    • Madeleine K. Albright, Bosnia in Light of the Holocaust: War Crimes Tribunals, Address at the U.S. Holocaust Memorial Museum (Apr. 18, 1994), 5 DEP'T OF STATE DISPATCH 209 (Apr. 18, 1994). Hitler referred to the historical fact that, in 1894, Turkish regular troops paired with Kurds to kill 200,000 Armenians, and in 1915, the Armenians lost another 1.5 million people, which was more than 50% of the population at the time. Andrew Bell-Fialkoff, A Brief History of Ethnic Cleansing, 72 FOREIGN AFF. 110, 113 (Summer 1993). See also Richard G. Hovannisian, Etiology and Sequelae of the Armenian Genocide, GENOCIDE 111-41 (George J. Andreopoulos ed., 1994).
    • (1994) Dep't of State Dispatch , vol.5 , pp. 209
    • Albright, M.K.1
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    • A brief history of ethnic cleansing
    • Summer
    • Madeleine K. Albright, Bosnia in Light of the Holocaust: War Crimes Tribunals, Address at the U.S. Holocaust Memorial Museum (Apr. 18, 1994), 5 DEP'T OF STATE DISPATCH 209 (Apr. 18, 1994). Hitler referred to the historical fact that, in 1894, Turkish regular troops paired with Kurds to kill 200,000 Armenians, and in 1915, the Armenians lost another 1.5 million people, which was more than 50% of the population at the time. Andrew Bell-Fialkoff, A Brief History of Ethnic Cleansing, 72 FOREIGN AFF. 110, 113 (Summer 1993). See also Richard G. Hovannisian, Etiology and Sequelae of the Armenian Genocide, GENOCIDE 111-41 (George J. Andreopoulos ed., 1994).
    • (1993) Foreign Aff. , vol.72 , pp. 110
    • Bell-Fialkoff, A.1
  • 495
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    • Etiology and sequelae of the Armenian Genocide
    • George J. Andreopoulos ed.
    • Madeleine K. Albright, Bosnia in Light of the Holocaust: War Crimes Tribunals, Address at the U.S. Holocaust Memorial Museum (Apr. 18, 1994), 5 DEP'T OF STATE DISPATCH 209 (Apr. 18, 1994). Hitler referred to the historical fact that, in 1894, Turkish regular troops paired with Kurds to kill 200,000 Armenians, and in 1915, the Armenians lost another 1.5 million people, which was more than 50% of the population at the time. Andrew Bell-Fialkoff, A Brief History of Ethnic Cleansing, 72 FOREIGN AFF. 110, 113 (Summer 1993). See also Richard G. Hovannisian, Etiology and Sequelae of the Armenian Genocide, GENOCIDE 111-41 (George J. Andreopoulos ed., 1994).
    • (1994) Genocide , pp. 111-141
    • Hovannisian, R.G.1
  • 496
    • 0041439624 scopus 로고
    • George C. Marshall deployed to the Philippines as a young officer to participate in the brutal campaign against the rebels. He remarked that, "[o]nce an army is involved in war, there is a beast in every fighting man which begins tugging at its chains, and a good officer must learn early on how to keep the beast under control, both in his men and himself." LEONARD MOSLEY, MARSHALL: HERO FOR OUR TIMES 23 (1982). Many scholars have advocated implementing the provisions of Article 43 of the United Nations Charter in order to give the Secretary General a standing military force to more effectively and quickly implement the desires of the Security Council. Member states would be obligated in advance to provide forces to the Secretary General on an "on call" basis, which proponents maintain would strengthen the rule of law by giving Security Council decisions more speedy and effective implementation. See James E. Rossman, Note, Article 43: Arming the United Nations Security Council, 27 N.Y.U. J. INT'L L. & POL'Y 227 (1994); Agenda for Peace, supra note 95, ¶ 44; Lawrence I. Rothstein, Note, Protecting the New World Order: It Is Time to Create a United Nations Army, 14 N.Y.L. SCH. J. INT'L & COMP. L. 69 (1993).
    • (1982) Marshall: Hero for Our Times , pp. 23
    • Mosley, L.1
  • 497
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    • Article 43: Arming the United Nations Security Council
    • Note
    • George C. Marshall deployed to the Philippines as a young officer to participate in the brutal campaign against the rebels. He remarked that, "[o]nce an army is involved in war, there is a beast in every fighting man which begins tugging at its chains, and a good officer must learn early on how to keep the beast under control, both in his men and himself." LEONARD MOSLEY, MARSHALL: HERO FOR OUR TIMES 23 (1982). Many scholars have advocated implementing the provisions of Article 43 of the United Nations Charter in order to give the Secretary General a standing military force to more effectively and quickly implement the desires of the Security Council. Member states would be obligated in advance to provide forces to the Secretary General on an "on call" basis, which proponents maintain would strengthen the rule of law by giving Security Council decisions more speedy and effective implementation. See James E. Rossman, Note, Article 43: Arming the United Nations Security Council, 27 N.Y.U. J. INT'L L. & POL'Y 227 (1994); Agenda for Peace, supra note 95, ¶ 44; Lawrence I. Rothstein, Note, Protecting the New World Order: It Is Time to Create a United Nations Army, 14 N.Y.L. SCH. J. INT'L & COMP. L. 69 (1993).
    • (1994) N.Y.U. J. Int'l L. & Pol'y , vol.27 , pp. 227
    • Rossman, J.E.1
  • 498
    • 0041439737 scopus 로고
    • Protecting the New World Order: It is time to create a United Nations Army
    • supra note 95, ¶ 44; Note
    • George C. Marshall deployed to the Philippines as a young officer to participate in the brutal campaign against the rebels. He remarked that, "[o]nce an army is involved in war, there is a beast in every fighting man which begins tugging at its chains, and a good officer must learn early on how to keep the beast under control, both in his men and himself." LEONARD MOSLEY, MARSHALL: HERO FOR OUR TIMES 23 (1982). Many scholars have advocated implementing the provisions of Article 43 of the United Nations Charter in order to give the Secretary General a standing military force to more effectively and quickly implement the desires of the Security Council. Member states would be obligated in advance to provide forces to the Secretary General on an "on call" basis, which proponents maintain would strengthen the rule of law by giving Security Council decisions more speedy and effective implementation. See James E. Rossman, Note, Article 43: Arming the United Nations Security Council, 27 N.Y.U. J. INT'L L. & POL'Y 227 (1994); Agenda for Peace, supra note 95, ¶ 44; Lawrence I. Rothstein, Note, Protecting the New World Order: It Is Time to Create a United Nations Army, 14 N.Y.L. SCH. J. INT'L & COMP. L. 69 (1993).
    • (1993) N.Y.L. Sch. J. Int'l & Comp. L. , vol.14 , pp. 69
    • Rothstein, L.I.1
  • 499
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    • Low intensity conflict and the International Legal System
    • Alberto R. Coll et al. eds., hereinafter Low Intensity Conflict
    • John N. Moore, Low Intensity Conflict and the International Legal System, U.S. NAVAL WAR COLLEGE, 67 INTERNATIONAL LAW STUDIES 25, 36 (Alberto R. Coll et al. eds., 1995) [hereinafter Low Intensity Conflict]. See also Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, June 1990, U.S. Commission on Security and Cooperation in Europe, Washington, D.C.
    • (1995) International Law Studies , vol.67 , pp. 25
    • Moore, J.N.1
  • 500
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    • June U.S. Commission on Security and Cooperation in Europe, Washington, D.C.
    • John N. Moore, Low Intensity Conflict and the International Legal System, U.S. NAVAL WAR COLLEGE, 67 INTERNATIONAL LAW STUDIES 25, 36 (Alberto R. Coll et al. eds., 1995) [hereinafter Low Intensity Conflict]. See also Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, June 1990, U.S. Commission on Security and Cooperation in Europe, Washington, D.C.
    • (1990) Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE
  • 501
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    • Peace-making and security council powers: Bosnia-Herzegovina raises International and Constitutional Questions
    • Jordan J. Paust, Peace-Making and Security Council Powers: Bosnia-Herzegovina Raises International and Constitutional Questions, 19 S. ILL. U. L.J. 131 (1994). In the words of the Secretary General of the United Nations, "While such action should only be taken when all peaceful means have failed, the option of taking it is essential to the credibility of the United Nations as a guarantor of international security" Agenda for Peace, supra note 95, ¶ 43.
    • (1994) S. Ill. U. L.J. , vol.19 , pp. 131
    • Paust, J.J.1
  • 502
    • 0042441912 scopus 로고
    • hereinafter LAW AND MILITARY OPERATIONS IN HAITI
    • CENTER FOR LAW AND MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN HAITI, 1994-1995 13 (1995) [hereinafter LAW AND MILITARY OPERATIONS IN HAITI].
    • (1995) Law and Military Operations in Haiti, 1994-1995 , pp. 13
  • 503
    • 84923719935 scopus 로고    scopus 로고
    • note
    • See FM 100-5, supra note 16, at 13-4 ("Restraints on weaponry, tactics, and levels of violence characterize the environment [operations other than war]. The use of excessive force could adversely affect efforts to gain legitimacy and impede the attainment of both short and long-term goals.") ("Committed forces must sustain the legitimacy of the operation and of the host government. Legitimacy derives from the perception that constituted authority is both genuine and effective and employs appropriate means for reasonable purposes.").
  • 504
    • 26344441916 scopus 로고    scopus 로고
    • NATO talking tough in Bosnia: Responds to Sarajevo attack
    • Jan. 11, Id.
    • Paust, supra note 383, at 131. In the context of ongoing operations inside Bosnia, NATO officials are concerned that continued sniping and shelling will erode civilian confidence in their mission. In early January 1996, Serb snipers shot an Italian soldier, engaged in several small arms attacks against NATO soldiers and equipment, and fired on a Sarajevo streetcar with a 64mm anti-tank weapon. Tom Squitieri, NATO Talking Tough in Bosnia: Responds to Sarajevo Attack, USA TODAY, Jan. 11, 1996, at A6. A spokesman stated, "Any further loss of life of such incidents only further hampers the peace process." Id.
    • (1996) USA Today
    • Squitieri, T.1
  • 505
    • 84923719926 scopus 로고    scopus 로고
    • Dinstein, supra note 264, at 348
    • Dinstein, supra note 264, at 348.
  • 506
    • 84923730908 scopus 로고    scopus 로고
    • supra note 382, n.23
    • Low Intensity Conflict, supra note 382, at 357 n.23.
    • Low Intensity Conflict , pp. 357
  • 507
    • 0042942700 scopus 로고
    • Theory and practice: Some suggestions for the law of war trainer
    • July
    • The Geneva Conventions require training in the laws of war, even though soldiers already know that the basic rules regulating human relations preclude the same conduct regulated as grave breaches under the Conventions. See FM 27-10, supra note 4, para. 14 (signatories undertake "in time of peace as in time of war, to disseminate the text of the Present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military instruction."); H. Wayne Elliott, Theory and Practice: Some Suggestions for the Law of War Trainer, ARMY LAW. 1, July 1983.
    • (1983) Army Law. , pp. 1
    • Elliott, H.W.1
  • 508
    • 84923719924 scopus 로고    scopus 로고
    • note
    • FM 100-5, supra note 16, at 14-2. The cornerstone doctrine of the United States Army recognizes the importance of the human dimension of conflict. Thus, despite "the difficult environments in which Army forces operate, soldiers are expected to obey the laws of land warfare, to protect civilians and other noncombatants, to limit collateral damage, to respect private property, and to treat EPWs with dignity. Amid the rigors of combat, the integrity of every soldier - from the highest to the low-est ranks - is of paramount importance." Id.
  • 509
    • 84923719922 scopus 로고    scopus 로고
    • note
    • See infra notes 414 to 417 and accompanying text for a discussion of the basic judicial guarantees recognized by civilized nations throughout the world.
  • 510
    • 0010135740 scopus 로고
    • The time has come for an International Criminal Court
    • Spring
    • This is the same logical and moral foundation which compels some scholars to advocate the creation of a permanent international criminal tribunal. See, e.g., M. Cherif Bassiouni, The Time Has Come for an International Criminal Court, 1 IND. INT'L & COMP. L. REV. 1, 34 (Spring 1991) ("We cannot rely on the sporadic episodes of the victorious prosecuting the defeated and then dismantle these ad hoc structures as we did with the Nuremberg and Tokyo tribunals. The permanency of an international criminal tribunal acting impartially and fairly irrespective of whom the accused may be is the best policy for the advancement of the international rule of law and for the prevention and control of international and transnational criminality.").
    • (1991) Ind. Int'l & Comp. L. Rev. , vol.1 , pp. 1
    • Bassiouni, M.C.1
  • 511
    • 84923719921 scopus 로고    scopus 로고
    • FM 100-5, supra note 16, at 14-2
    • FM 100-5, supra note 16, at 14-2.
  • 512
    • 84896243089 scopus 로고
    • Maltreatment of prisoners of war in Vietnam
    • LOUIS HENKIN ET AL., MIGHT V. RIGHT (2d ed. 1991).
    • See LOUIS HENKIN ET AL., MIGHT V. RIGHT (2d ed. 1991). During the Vietnam War, the North Vietnamese Army regularly committed many command directed atrocities. Howard Levie, Maltreatment of Prisoners of War in Vietnam, 98 B.U. L. REV. 323 (1969). The North Vietnamese repeatedly executed American prisoners of war as illegal reprisals following valid convictions of Vietcong in South Vietnamese courts. FRITS KALSHOVEN, BELLIGERENT REPRISALS 193-200 (1971). During the Korean conflict, General MacArthur convened a war crimes commission which documented massive war crimes committed by North Korean and Chinese soldiers. The commission prepared cases for trial which documented the torture and murder of prisoners. No enemy soldiers ever faced trial due to fears that trials would interfere with efforts to repatriate prisoners. PAUL CHRISTOPHER, THE ETHICS OF WAR & PEACE: AN INTRODUCTION TO LEGAL AND MORAL ISSUES 136-37 (1994).
    • (1969) B.U. L. Rev. , vol.98 , pp. 323
    • Levie, H.1
  • 513
    • 0042441913 scopus 로고
    • See LOUIS HENKIN ET AL., MIGHT V. RIGHT (2d ed. 1991). During the Vietnam War, the North Vietnamese Army regularly committed many command directed atrocities. Howard Levie, Maltreatment of Prisoners of War in Vietnam, 98 B.U. L. REV. 323 (1969). The North Vietnamese repeatedly executed American prisoners of war as illegal reprisals following valid convictions of Vietcong in South Vietnamese courts. FRITS KALSHOVEN, BELLIGERENT REPRISALS 193-200 (1971). During the Korean conflict, General MacArthur convened a war crimes commission which documented massive war crimes committed by North Korean and Chinese soldiers. The commission prepared cases for trial which documented the torture and murder of prisoners. No enemy soldiers ever faced trial due to fears that trials would interfere with efforts to repatriate prisoners. PAUL CHRISTOPHER, THE ETHICS OF WAR & PEACE: AN INTRODUCTION TO LEGAL AND MORAL ISSUES 136-37 (1994).
    • (1971) Belligerent Reprisals , pp. 193-200
    • Kalshoven, F.1
  • 514
    • 0040941308 scopus 로고
    • See LOUIS HENKIN ET AL., MIGHT V. RIGHT (2d ed. 1991). During the Vietnam War, the North Vietnamese Army regularly committed many command directed atrocities. Howard Levie, Maltreatment of Prisoners of War in Vietnam, 98 B.U. L. REV. 323 (1969). The North Vietnamese repeatedly executed American prisoners of war as illegal reprisals following valid convictions of Vietcong in South Vietnamese courts. FRITS KALSHOVEN, BELLIGERENT REPRISALS 193-200 (1971). During the Korean conflict, General MacArthur convened a war crimes commission which documented massive war crimes committed by North Korean and Chinese soldiers. The commission prepared cases for trial which documented the torture and murder of prisoners. No enemy soldiers ever faced trial due to fears that trials would interfere with efforts to repatriate prisoners. PAUL CHRISTOPHER, THE ETHICS OF WAR & PEACE: AN INTRODUCTION TO LEGAL AND MORAL ISSUES 136-37 (1994).
    • (1994) The Ethics of War & Peace: An Introduction to Legal and Moral Issues , pp. 136-137
    • Christopher, P.1
  • 515
    • 84923719920 scopus 로고    scopus 로고
    • note
    • FM 27-10, supra note 4, para. 507b ("Violations of the Law of War committed by persons subject to the military law of the United States will usually constitute violations of the Uniform Code of Military Justice, and, if so, will be prosecuted under that Code. Commanding officers of United States troops must insure that war crimes committed by members of their forces against enemy personnel are promptly and adequately punished."). For a description of some United States prosecutions See VON GLAHN, supra note 94, at 882-85.
  • 516
    • 0009498793 scopus 로고
    • Post-Vietnam counterinsurgency doctrine
    • May
    • Colonel John Waghelstein wrote that fighting a counterinsurgency in which the enemy disregards legal standards is difficult for the American military because "this kind of conflict is fundamentally different from the American way of war." Post-Vietnam Counterinsurgency Doctrine, MILITARY REVIEW 42 (May 1985). Soldiers who feel no obligation to obey legal standards are also more likely to disregard their rules of engagement. Few senior leaders in Vietnam felt that soldiers understood their rules of engagement before My Lai, and even fewer believed that soldiers carefully followed those rules of engagement. Major Mark S. Martins, Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering, 143 MIL. L. REV. 1, 19 (1994), Perceiving that rules of engagement unduly restricted their freedom of action, soldiers engaged in "creative application" or ignored the legal restrictions altogether. ANDREW F. KREPINOVICH, JR., THE ARMY AND VIETNAM 199-206 (1986). See generally MICHAEL MCCLINTOCK, INSTRUMENTS OF STATECRAFT: U.S. GUERRILLA WARFARE, COUNTER-INSURGENCY, AND COUNTER-TERRORISM 1940-1990 421-49 (1992) (describing the arguments made by some soldiers and civilian policymakers advocating a legitimate role of terror techniques and human rights abuses as a part of United States military and political policy).
    • (1985) Military Review , pp. 42
  • 517
    • 69749123493 scopus 로고
    • Rules of engagement for land forces: A matter of training, not lawyering
    • Colonel John Waghelstein wrote that fighting a counterinsurgency in which the enemy disregards legal standards is difficult for the American military because "this kind of conflict is fundamentally different from the American way of war." Post-Vietnam Counterinsurgency Doctrine, MILITARY REVIEW 42 (May 1985). Soldiers who feel no obligation to obey legal standards are also more likely to disregard their rules of engagement. Few senior leaders in Vietnam felt that soldiers understood their rules of engagement before My Lai, and even fewer believed that soldiers carefully followed those rules of engagement. Major Mark S. Martins, Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering, 143 MIL. L. REV. 1, 19 (1994), Perceiving that rules of engagement unduly restricted their freedom of action, soldiers engaged in "creative application" or ignored the legal restrictions altogether. ANDREW F. KREPINOVICH, JR., THE ARMY AND VIETNAM 199-206 (1986). See generally MICHAEL MCCLINTOCK, INSTRUMENTS OF STATECRAFT: U.S. GUERRILLA WARFARE, COUNTER-INSURGENCY, AND COUNTER-TERRORISM 1940-1990 421-49 (1992) (describing the arguments made by some soldiers and civilian policymakers advocating a legitimate role of terror techniques and human rights abuses as a part of United States military and political policy).
    • (1994) Mil. L. Rev. , vol.143 , pp. 1
    • Martins, M.S.1
  • 518
    • 0004231252 scopus 로고
    • Colonel John Waghelstein wrote that fighting a counterinsurgency in which the enemy disregards legal standards is difficult for the American military because "this kind of conflict is fundamentally different from the American way of war." Post-Vietnam Counterinsurgency Doctrine, MILITARY REVIEW 42 (May 1985). Soldiers who feel no obligation to obey legal standards are also more likely to disregard their rules of engagement. Few senior leaders in Vietnam felt that soldiers understood their rules of engagement before My Lai, and even fewer believed that soldiers carefully followed those rules of engagement. Major Mark S. Martins, Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering, 143 MIL. L. REV. 1, 19 (1994), Perceiving that rules of engagement unduly restricted their freedom of action, soldiers engaged in "creative application" or ignored the legal restrictions altogether. ANDREW F. KREPINOVICH, JR., THE ARMY AND VIETNAM 199-206 (1986). See generally MICHAEL MCCLINTOCK, INSTRUMENTS OF STATECRAFT: U.S. GUERRILLA WARFARE, COUNTER-INSURGENCY, AND COUNTER-TERRORISM 1940-1990 421-49 (1992) (describing the arguments made by some soldiers and civilian policymakers advocating a legitimate role of terror techniques and human rights abuses as a part of United States military and political policy).
    • (1986) The Army and Vietnam , pp. 199-206
    • Krepinovich A.F., Jr.1
  • 519
    • 0003406206 scopus 로고
    • Colonel John Waghelstein wrote that fighting a counterinsurgency in which the enemy disregards legal standards is difficult for the American military because "this kind of conflict is fundamentally different from the American way of war." Post-Vietnam Counterinsurgency Doctrine, MILITARY REVIEW 42 (May 1985). Soldiers who feel no obligation to obey legal standards are also more likely to disregard their rules of engagement. Few senior leaders in Vietnam felt that soldiers understood their rules of engagement before My Lai, and even fewer believed that soldiers carefully followed those rules of engagement. Major Mark S. Martins, Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering, 143 MIL. L. REV. 1, 19 (1994), Perceiving that rules of engagement unduly restricted their freedom of action, soldiers engaged in "creative application" or ignored the legal restrictions altogether. ANDREW F. KREPINOVICH, JR., THE ARMY AND VIETNAM 199-206 (1986). See generally MICHAEL MCCLINTOCK, INSTRUMENTS OF STATECRAFT: U.S. GUERRILLA WARFARE, COUNTER-INSURGENCY, AND COUNTER-TERRORISM 1940-1990 421-49 (1992) (describing the arguments made by some soldiers and civilian policymakers advocating a legitimate role of terror techniques and human rights abuses as a part of United States military and political policy).
    • (1992) Instruments of Statecraft: U.S. Guerrilla Warfare, Counter-Insurgency, and Counter-Terrorism 1940-1990 , pp. 421-449
    • McClintock, M.1
  • 520
    • 84923705196 scopus 로고    scopus 로고
    • supra note 13
    • My Lai Lessons, supra note 13, at 175.
    • My Lai Lessons , pp. 175
  • 521
    • 84923719919 scopus 로고    scopus 로고
    • note
    • SECRET, Chairman of the Joint Chiefs of Staff, Instruction 3121.01, Standing Rules of Engagement for US Forces (1 Oct 1994) (The cited language comes from the unclassified Appendix A which is intended for wide distribution to all forces in the field.).
  • 522
    • 84923719918 scopus 로고    scopus 로고
    • note
    • The 1983 terrorist attack against United States Marines in Beirut caused a fundamental institutional change in subsequently promulgated Rules of Engagement. Each set of ROE reminds every soldier of the inherent right of self defense up front and in capital letters. Martins, supra note 396, at 51-52.
  • 523
    • 84923726450 scopus 로고    scopus 로고
    • supra note 384
    • LAW AND MILITARY OPERATIONS IN HAITI, supra note 384, at 63. Both Military Intelligence and Criminal Investigative Detachment assets may initially investigate some incidents. The primary responsibility of the military intelligence assets is to examine such incidents for intelligence and security-related purposes. DEP'T OF ARMY, REGULATION 381-20, THE ARMY COUNTERINTELLIGENCE PROGRAM, para. 4-5 (15 Nov. 1993). By doctrine, military intelligence will exhaust all intelligence/security dimensions of an incident before turning the case over to the criminal investigators. Id. There is no regulatory prohibition against using evidence obtained during the initial intelligence processing of an incident.
    • Law and Military Operations in Haiti , pp. 63
  • 524
    • 0042942704 scopus 로고
    • THE ARMY COUNTERINTELLIGENCE PROGRAM, para. 4-5 15 Nov.
    • LAW AND MILITARY OPERATIONS IN HAITI, supra note 384, at 63. Both Military Intelligence and Criminal Investigative Detachment assets may initially investigate some incidents. The primary responsibility of the military intelligence assets is to examine such incidents for intelligence and security-related purposes. DEP'T OF ARMY, REGULATION 381-20, THE ARMY COUNTERINTELLIGENCE PROGRAM, para. 4-5 (15 Nov. 1993). By doctrine, military intelligence will exhaust all intelligence/security dimensions of an incident before turning the case over to the criminal investigators. Id. There is no regulatory prohibition against using evidence obtained during the initial intelligence processing of an incident.
    • (1993) Regulation , pp. 381-420
  • 525
    • 84928843873 scopus 로고
    • Legal services in war
    • Colonel Ted Borek, Legal Services in War, 120 MIL. L. REV. 19, 47 (1988) (describing the role of judge advocates in detainee issues during operations in Grenada).
    • (1988) Mil. L. Rev. , vol.120 , pp. 19
    • Borek, T.1
  • 526
    • 84923719917 scopus 로고    scopus 로고
    • note
    • Parkerson, supra note 9, at 68-71. During operations in Panama, early estimates placed the figure of detainees at around 5000. Id. at 68 n.191.
  • 527
    • 84923719916 scopus 로고    scopus 로고
    • note
    • Lorenz, supra note 9, at 34-35 (summarizing the legal problems encountered during operations in Somalia). The Joint Task Force established a detention facility capable of holding 20 Somalis.
  • 528
    • 84923726450 scopus 로고    scopus 로고
    • supra note 384, Id. at 67
    • LAW AND MILITARY OPERATIONS IN HAITI, supra note 384, at 63-72. During operations in Haiti, the Joint Detention Facility became "one of the most conspicuous successes of Uphold Democracy" because the standards of humane treatment and due process stood in marked contrast to Haiti's legacy of arbitrary and sometimes brutal detention." Id. at 64. One judge advocate remarked that, "ICRC personnel became strong supporters of the JDF when criticism arose from the media and several detainee families." Id. The population at the Multinational Force Joint Detention Facility crested at around 200, but decreased to around 24 by January 1995 at the time Haitian officials began to assume control of the facility. Id. at 67.
    • Law and Military Operations in Haiti , pp. 63-72
  • 529
    • 84923719915 scopus 로고    scopus 로고
    • note
    • At the time of this writing, an American service member lies wounded in Bosnia at the hands of a local civilian looter. Implementing the recommendations of this article would allow prosecution in an American military forum in the event that the NATO forces apprehend the shooter and produce sufficient evidence to sustain a conviction.
  • 531
    • 84923719906 scopus 로고    scopus 로고
    • note
    • Parkerson, supra note 9, at 69 (describing a report issued by America's Watch that United States forces improperly detained some citizens solely due to their political beliefs).
  • 532
    • 84923719904 scopus 로고    scopus 로고
    • note
    • The commander should not transfer prisoners to local officials without some evidence that the local standards of incarceration comply with the basic humanitarian standards. See, e.g., Standard Rules for the Treatment of Prisoners, adopted Aug. 30, 1955 by the First United Nations Congress on the Prevention of Crime and The Treatment of Offenders, U.N. Doc. A/CONF/611, annex I, E.S.C. Res. 663C, 24 U.N. ESCOR, Supp. No. 1, at 11, U.N. Doc. E/3048 (1957), amended E.S.C. Res. 2076 62 U.N. ESCOR, Supp. No. 1, at 35, U.N. Doc. E/5988 (1977).
  • 533
    • 0042942698 scopus 로고
    • Legal fictions mask human suffering: The detention of the Mariel Cubans
    • Note, Id.
    • Confining foreign nationals in United States federal or military prisons is not unknown. Several thousand Cuban citizens came to the United States during the Mariel Boat Lift and some spent years in federal penitentiaries before being returned to Cuba or released. Mark D. Kemple, Note, Legal Fictions Mask Human Suffering: The Detention of the Mariel Cubans, 62 S. CALIF. L. REV. 1733 (1989). Bringing foreign nationals to the United States would require coordination with and special status granted by the Immigration and Naturalization Service. Another option would be to follow the example of the Statute for the current International Tribunals by confining convicted continuum criminals in any state which indicates a willingness to accept prisoners. Report of the Secretary General, supra note 173, ¶ 122. In this scenario, prisoners would be eligible for parole, commutation, or other post conviction action in accordance with the laws of the confining state. Id.
    • (1989) S. Calif. L. Rev. , vol.62 , pp. 1733
    • Kemple, M.D.1
  • 534
    • 0041439617 scopus 로고
    • Article 9
    • Asbjorn Eide et al. eds.
    • Universal Declaration, supra note 193, art. 9 ("No one shall be subjected to arbitrary arrest, detention or exile."). The freedom from arbitrary arrest is a fundamental human right as expressed in all major human rights instruments beginning with the Magna Carta (1215) and the French Revolution (1789). In the words of the Magna Carta, "No free man shall be taken or imprisoned or disseised or out lawed or exiled or in any way ruined, nor we go or send against him, except by lawful judgment of his peers, or by the law of the land." Johanna Niemi-Kiesilainen, Article 9, in THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A COMMENTARY 147 (Asbjorn Eide et al. eds., 1991).
    • (1991) The Universal Declaration of Human Rights: A Commentary , pp. 147
    • Niemi-Kiesilainen, J.1
  • 535
    • 84923719902 scopus 로고    scopus 로고
    • note
    • Comments on National Public Radio, Mar. 19, 1996, comments by Andrew Krepinovich.
  • 536
    • 84923719901 scopus 로고    scopus 로고
    • note
    • Several years ago, the Chief of the Operations and International Law Department at the United States Army Judge Advocate General's School, Charlottesville, Virginia received a telephone inquiry regarding the desirability of retaining Article 21 in the Code. The caller was soliciting opinions as to whether Article 21 had any practical utility in modern operations. Interview with Lieutenant Colonel H. Wayne Elliott (ret.) (Jan. 6, 1996).
  • 537
    • 84923719900 scopus 로고    scopus 로고
    • note
    • There is some support for an alternative view that Congress need not modify Article 21 to allow prosecution of continuum crimes. The statute allows prosecution of "offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals." MCM, supra note 44, art. 21 (emphasis added). If Congress does not amend the statute, the President could make an authoritative determination that the phrase "by the law of war" has a functional meaning. In other words, the President could issue a change to the Manual for Courts-Martial specifying that Article 21 incorporate the same offenses which the Security Council described as "violations of the laws or customs of war." I do not believe that the history of military tribunals in United States jurisprudence or the rules of international law warrant such a broad and ambiguous interpretation of the phrase. The better approach, in my opinion, is for Congress to amend Article 21 and make the jurisdictional basis absolutely clear to both potential criminals and their defense attorneys.
  • 538
    • 0041941031 scopus 로고
    • The case for an International Court of Criminal Justice and the Formulation of International Criminal Law
    • John W. Bridge, The Case for an International Court of Criminal Justice and the Formulation of International Criminal Law, 13 INT'L & COMP. L.Q. 1255 (1964), reprinted in RICHARD B. LILLICH, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW, POLICY, AND PRACTICE 867-82 (2d ed. 1991) (quoting Professor Schwarzenberger without reference to a specific citation).
    • (1964) Int'l & Comp. L.Q. , vol.13 , pp. 1255
    • Bridge, J.W.1
  • 539
    • 0041941031 scopus 로고
    • 2d ed.
    • John W. Bridge, The Case for an International Court of Criminal Justice and the Formulation of International Criminal Law, 13 INT'L & COMP. L.Q. 1255 (1964), reprinted in RICHARD B. LILLICH, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW, POLICY, AND PRACTICE 867-82 (2d ed. 1991) (quoting Professor Schwarzenberger without reference to a specific citation).
    • (1991) International Human Rights: Problems of Law, Policy, and Practice , pp. 867-882
    • Lillich, R.B.1
  • 540
    • 84923719899 scopus 로고    scopus 로고
    • supra note 224
    • McDougal & Feliciano, supra note 224, at 721.
    • McDougal1    Feliciano2
  • 541
    • 84923719898 scopus 로고    scopus 로고
    • note
    • The lack of defined procedures and rules of evidence for military commissions could generate charges of "victor's justice." To prevent this perception, the President should exercise the constitutional authority, U.S. CONST. art. II, § 2, cl. 1, to issue regulations for pretrial, trial, and post-trial procedures, including modes of proof for military commissions which "so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts . . ." 10 U.S.C. § 836 (1995). In the absence of procedural guidance from the Commander-in-Chief, military commissions and provost courts "shall be guided by the appropriate principles of law and rules of procedures and evidence prescribed for courts-martial." MCM, supra note 44, Part I, para. 2(b)(2).
  • 542
    • 84923719897 scopus 로고    scopus 로고
    • note
    • The Secretary General's Report required by United Nations Security Council Resolution 808 used the quoted phrase with regard to the rights enunciated in Article 14 of the International Covenant on Civil and Political Rights. Report of the Secretary General, supra note 173, ¶ 106. The Statute of the International Tribunal for Crimes Committed in the Former Yugoslavia accordingly provides that the accused has the following rights: (1) All persons shall be equal before the International Tribunal. (2) In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to Article 22 of the Statute. (3) The accused shall be presumed innocent until proven guilty according to the provisions of the present Statute. (4) In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: (a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) to have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing; (c) to be tried without undue delay; (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal; (g) not to be compelled to testify against himself or to confess guilt. Id. ¶ 107, Statute of the International Tribunal, supra note 173, art. 21.
  • 543
    • 0001255511 scopus 로고
    • Welcome to the Junta: The erosion of civilian control of the U.S. Military
    • Charles J. Dunlap, Welcome to the Junta: The Erosion of Civilian Control of the U.S. Military, 29 WAKE FOREST L. REV. 341 (1994).
    • (1994) Wake Forest L. Rev. , vol.29 , pp. 341
    • Dunlap, C.J.1
  • 544
    • 84923719896 scopus 로고    scopus 로고
    • note
    • See, e.g., RESTATEMENT, supra note 12, § 206 ("Under international law, a state has sovereignty over its territory and general authority over its nationals."); id. cmt. b. (sovereignty implies a state's lawful control over its territory generally "to the exclusion of other states, authority to govern in that territory, and authority to apply law there.").
  • 545
    • 84923719895 scopus 로고    scopus 로고
    • note
    • Convention of Prisoners of War, supra note 4, art. 102. The Convention also states that "Prisoners of war prosecuted under the laws of the detaining power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention." Id., art. 85. The Uniform Code of Military Justice implements this provision of international law by providing for court-martial jurisdiction over "Prisoners of war in custody of the armed forces." UCMJ, supra note 44, art. 2(a)(9).
  • 546
    • 0041131017 scopus 로고
    • See DEP'T OF DEFENSE, LEGAL AND LEGISLATIVE BASIS, MANUAL FOR COURTS-MARTIAL, UNITED STATES 17 (1951) ("Under [article 18 of the Manual for Courts-Martial] there is no question that members of our armed forces may be tried for violations of the law of war, either by military commission or by general courts-martial.").
    • (1951) Legal and Legislative Basis, Manual for Courts-Martial, United States , pp. 17
  • 547
    • 84923726450 scopus 로고    scopus 로고
    • supra note 384
    • The United States elected to treat potentially hostile persons detained during Operation Uphold Democracy as if they were prisoners of war based on a policy decision rather than a legal requirement. LAW AND MILITARY OPERATIONS IN HAITI, supra note 384, at 54. As a matter of policy, the United States has declared that it will "upon engagement of forces, apply all of the provisions of the Geneva Conventions and the customary international law dealing with armed conflict." United States Permanent Mission in Geneva, Diplomatic Note to the International Committee of the Red Cross (Sept. 19, 1994), quoted in Extraterritoriality of Human Rights Treaties, supra note 7, at 78.
    • Law and Military Operations in Haiti , pp. 54
  • 548
    • 44649088645 scopus 로고
    • Sept. 19, supra note 7
    • The United States elected to treat potentially hostile persons detained during Operation Uphold Democracy as if they were prisoners of war based on a policy decision rather than a legal requirement. LAW AND MILITARY OPERATIONS IN HAITI, supra note 384, at 54. As a matter of policy, the United States has declared that it will "upon engagement of forces, apply all of the provisions of the Geneva Conventions and the customary international law dealing with armed conflict." United States Permanent Mission in Geneva, Diplomatic Note to the International Committee of the Red Cross (Sept. 19, 1994), quoted in Extraterritoriality of Human Rights Treaties, supra note 7, at 78.
    • (1994) Extraterritoriality of Human Rights Treaties , pp. 78
  • 549
    • 84923719894 scopus 로고    scopus 로고
    • Hague IV, supra note 219, art 52, reprinted in FM 27-10, supra note 4, para. 363
    • Hague IV, supra note 219, art 52, reprinted in FM 27-10, supra note 4, para. 363.
  • 550
    • 84923719893 scopus 로고    scopus 로고
    • FM 27-10, supra note 4, para. 355
    • FM 27-10, supra note 4, para. 355.
  • 551
    • 0042942696 scopus 로고
    • Caedmon Recordings
    • Bob Marley paraphrased the words of a 1968 speech given by the Ethiopian emperor Haile Selassie to the United Nations: Until the philosophy which holds one race superior and another inferior is finally and permanently discredited and abandoned, everywhere is war . . . and until there are no longer first-class and second class citizens of any nation, until the color of a man's skin is of no more significance than the color of his eyes, me see war. And until the basic human rights are equally guaranteed to all without regard to race, there is war. And until that day, the dream of lasting peace, world citizenship rule of international morality, will remain but a fleeting illusion to be pursued, but never attained . . . now everywhere is war. BOB MARLEY, War, on Rastaman Vibration (Caedmon Recordings 1976).
    • (1976) War, on Rastaman Vibration
    • Marley, B.1
  • 552
    • 27644498631 scopus 로고
    • As ethnic wars multiply, U.S. Strives for a policy
    • Feb. 7
    • Senator Daniel Patrick Moynihan predicted that "the defining mode of conflict in the era ahead is ethnic conflict. It promises to be savage. Get ready for 50 new countries in the next 50 years. Most of them will be born in bloodshed." As Ethnic Wars Multiply, U.S. Strives For a Policy, N.Y. TIMES, Feb. 7, 1993, at A1.
    • (1993) N.Y. Times
  • 555
    • 84923719892 scopus 로고    scopus 로고
    • 1 IMT, supra note 2, at 221
    • 1 IMT, supra note 2, at 221.


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