Topic Needed: International Law Research Paper
I'm looking for a topic for a legal research paper.
Background:
I am on an extended vacation from the Army and spending much of my leisure time pursuing a law degree. Part of any law student's education involves writing a legal research paper "of publishable quality." The topic is pretty wide open. I would prefer to research an issue that concerns international law (but that's only a preference, not a requirement) that has relevance to our current operations, whether it pertains to detainees, cross-border attacks, our ability conduct certain types of operations (kinetic, cyber, etc). It simply needs to be something narrow enough for one paper and something that I am able to wrap my brain around.
My question:
Is anyone aware of some contested legal issue or unanswered question that currently influences, or will likely soon influence, our operations in Iraq/Syria/Iran or Afghanistan/Pakistan? (I would prefer to keep it in CENTCOM+Pakistan, since I at least have some familiarity with the OE).
Just to clarify:
In light of issues regarding Gitmo and so-called "extraordinary rendition," my question looking for a topic may sound like a no-brainer, but it's not. The issue of Gitmo is too big for a 60-page paper and probably beyond my level of expertise. I suspect that the issue of so-called "extraordinary rendition" is also too large and above my head. I need something narrower - perhaps some contention regarding cross-border UAV attacks? Also, keep in mind that if classified information is essential - or extremely helpful - in understanding the issue, then it's probably not a good topic for me, since any conclusion that I draw will only be read by people who do not have access to that information and thus they may not understand the context.
One possible example:
On my last deployment to Iraq, I spent time on staff as an IO planner. I was shocked at how often we ran into a legal issue in regard to various PSYOP tasks that we wanted to do, but couldn't (especially certain print products - WTF?). It was, as I recall, a fairly narrow issue - and pretty hotly contested among the JAGs. I read an email full of legal mumbo jumbo that stretched out for 20 pages with JAGs at all echelons arguing every which way on the issue. Unfortunately, all of that was on SIPR, so I have no idea if the issue actually was classified or if it was simply being discussed via SIPR because that was how we conducted business. Also, having zero legal education at that time, I no longer recall what the legal obstacle(s) was/were or the origin. Worse yet, I don't know whether, or how, I could ask about them outside of a SCIF because I have no idea what the classification level is and I don't want to blab details of something that is classified.
Technically, I don't need to finish this paper until graduation (two years from now), but I'd prefer to start sooner rather than later. Even if you don't know the legalese, a simple issue that you've encountered would be a good start. For example, "our JAG says we can't do XYZ and gave us some BS reason for it - what gives?"
The best idea would be one that arises repeatedly, that the JAGs disagree on, and that really annoys the guys in the S3/J3/G3 shop(s) because it prevents them from doing some tactical/operational task that they want to do.
Any ideas would be appreciated.
One thing you might want to take a look at is the Proliferation Security Initiative (PSI). Basically, PSI is designed to interdict WMD-related shipments around the world and the legal basis for it is somewhat in dispute (depending on who you ask). There's also talk of expanding it to include conventional arms shipments, sanctions enforcement, etc. Global interdiction will be, I think, an issue sure to get more attention in future.
How about the history of the Law Of Land Warfare and how it should be or should not be updated based upon the current situation,technology and enemies?
Just a thought
Western legal concepts underpin military aid to the civil power for example and different legal norms exist in the operational area (CENTCOM AOR). Is there any common ground to build upon? I am excluding international law. I am assuming in the AOR there is law on such issues.
davidbfpo
I get the feeling that I know where you're going, but I'm not sure. Could you expand upon that?Originally Posted by davidbfpo
Good one. That is a broad topic, but if I can choose one issue from that topic then that would probably be a good topic. I'm adding that to the list.
Nice. Adding it to the list.
Trying to explain my thoughts
In the West the law underpins our actions I am not convinced in the AOR legal norms have the same value. State power can appear un-restricted, e.g. in Pakistan ISI's use of executive power to detain hundreds of opponents. As we rely on law and potential partners may not this can impair co-operation. How can Western notions adjust to the AOR environment? SSR often refers to changing the legal structure etc.
Just some morning thoughts.
davidbfpo
Personally I find a lot of the debate on torture to be worthless since no two legal experts seem to be able to agree on a definition of what constitutes torture. Perhaps a paper on what the law actually says vs. what the "experts" think it should say.
SFC W
A few International law questions that are open in the area of cyber warfare.
1) What US entity can respond to cyber warfare? I have a non-law grad student studying this topic. We don't have the legal acumen to answer it in depth but our analysis suggests the answer is not who you think.
2) Cyber warfare crosses neutral as well as hostile countries. At one level it is simple espionage and at other levels it is hostile kinetic warfare. There appears to be no treaty mechanism in place to allow this and several that say that weaponizing the plain old telephone system (POTS) or data system is against international law.
3) Cyber warfare is a boogeyman with no bones for state actors. In the United States the entirety of the critical information infrastructures are owned by private corporations. What happens when AT&T turns off the switch on the United States government during a cyber warfare incident as a terms of service violation? Yes they could. Maybe they wouldn't. What happens when domestic law plainly forbids national defense? Is at odds with state laws?
4) Who do you sue in a cyber war incident? The telecom? The government? Sovereign exemption? What if you're collateral damage? What is my right of self defense against a hostile nation state as a non-state actor (the law is explicit here)? What is my right as a company against an adversarial company (the law is less explicit but implicit)? What is my right as a state within the United States against a non-state actor, state actor, corporation attacking through cyber means (wowser talk about contradictory law sets)?
Sam Liles
Selil Blog
Don't forget to duck Secret Squirrel
The scholarship of teaching and learning results in equal hatred from latte leftists and cappuccino conservatives.
All opinions are mine and may or may not reflect those of my employer depending on the chance it might affect funding, politics, or the setting of the sun. As such these are my opinions you can get your own.
International law isn't
I don't know how far along in your studies you are, but international law is politics, not law. There is no international legislature (to make the law) and no international executive (to enforce it). Only an international judiciary, whose opinions any participant can choose to ignore.
That said, I would love to investigate how international customary law has redefined the status of combatants.
If you wanted to take a Constitutional Law tact, you could explore the ramifications on U.S. Foreign Policy in the Middle East if the Supremecy Clause was interpreted to reach all the way back to the Declaration of Independence instead of just back to the Constitution in determining the primacy of law.
This would lend binding legal teeth to the core American Principles that exist there and nowhere else. As it stands, we can wave them like a flag, but we only have to apply them where convenient.
Right to Life, Liberty and Pursuit of happiness
Right and Duty of a Populace to rise up in Insurgency when their Governance fails them
Right to Self-Determination of Government
This strikes to the root issues of why we are in the Middle East dealing with the GWOT currently. Our Cold War program of controls exerted over the governance of this region in order to Contain the Soviets and deny them access to this region was only made possible by the ability to ignore these principles. The growing friction from the populaces of the region rise (IMO) largely from the continued support of governances established or sustained (under US legitimacy vs the legitimacy of the governed populace) under this Cold War program long after the Cold War ended is the Causation for much of the violence in the region and for why so much of it is directed at the U.S. Clearly the doctrine of Whabism and the Leadership of Bin Laden are the sustaining spark, or Motive, that keeps this fire burning, but until we take away the causal fuel, the fire will always simply just re-ignite, and the US will always be a target for keeping that causal fuel in place.
Way more interesting and material to the core issues in the region than all the myriad rules, regulations, and policies we have compiled to try to control the resultant chaos.
Robert C. Jones
Intellectus Supra Scientia
(Understanding is more important than Knowledge)
"The modern COIN mindset is when one arrogantly goes to some foreign land and attempts to make those who live there a lesser version of one's self. The FID mindset is when one humbly goes to some foreign land and seeks first to understand, and then to help in some small way for those who live there to be the best version of their own self." Colonel Robert C. Jones, US Army Special Forces (Retired)
Spot on! As an IDF lawyer told me recently, her job was to protect their soldiers against enemy action in the shape of actors maliciously employing legal arguments and instruments for political purposes.
Infinity Journal "I don't care if this works in practice. I want to see it work in theory!"
- The job of the British Army out here is to kill or capture Communist Terrorists in Malaya.
- If we can double the ratio of kills per contact, we will soon put an end to the shooting in Malaya.
Sir Gerald Templer, foreword to the "Conduct of Anti-Terrorist Operations in Malaya," 1958 Edition
I have to disagree while agreeing.
Top down what you say is true. There is no executive to imperil the litigious.
However, the interlocking legal agreements, treaties, and contracts between each nation create a body of law international in scope. With each nation that is signatory subject to whatever penalties internal to the agreements or resultant from breaking the agreements. If you have a trade treaty that says you won't use protectionism and you use it, the other party may then jack up the price on another covered item in retaliation. Mutual aid treaties for defense are another example. Agreements on language for business contracts and financial transactions is another example. International borders are another example where agreement creates law base (taxes on one side of a border go to one sovereign and the other side a different one).
To me that is the body of international law.
Sam Liles
Selil Blog
Don't forget to duck Secret Squirrel
The scholarship of teaching and learning results in equal hatred from latte leftists and cappuccino conservatives.
All opinions are mine and may or may not reflect those of my employer depending on the chance it might affect funding, politics, or the setting of the sun. As such these are my opinions you can get your own.
I concur, but enforceable agreements treaties and contracts are rarely relevant in conflict. The idea that there is some "international law" of human rights, or "Weapons conventions" for example are political in nature and extremely subjective.
We may all have national and personal opinions as to human rights, and weapons conventions, but the choice/wish relevant to enforcing or ignoring them, is entirely political.
Infinity Journal "I don't care if this works in practice. I want to see it work in theory!"
- The job of the British Army out here is to kill or capture Communist Terrorists in Malaya.
- If we can double the ratio of kills per contact, we will soon put an end to the shooting in Malaya.
Sir Gerald Templer, foreword to the "Conduct of Anti-Terrorist Operations in Malaya," 1958 Edition
Yes
To be used for own gain as appropriate...
May not be nice but it's reality. There is no nation of which I'm aware that does not attempt to manipulate 'International Law' for its own benefit. That's because, as Old Eagle said, there is no international law because the so called International Judiciary can be ignored. And generally is. And that's a good thing...
International Law - Not/Is
There is a significant body of international law out in the real world composed of several components: (1) customary IL - probably the most effective, while there is no enforcement mechanism nearly all obey because it is in their interest to do so; (2) treaty law - applicable to all who are party to a treaty. The International Court of Justice (ICJ) is particularly useful here as a dispute settlement mechanism that the parties to the treaty have previously accepted. similar dispute settlement mechanisms operate in the WTO; (3) Law based on resolutions by the UN Security Council - ad hoc directives that are as effective as the ad hoc enforcement mechanisms created by the UNSC. UN Command Korea has been an effective enforcement mechanism; MNUSTAH in Haiti has been moderately effective while the sanctions regimes for N. korea and Iran have failed. The final component is the International Criminal Court (ICC) established by treaty (Rome Convention) that clearly applies to all states that ratified the treaty. However, the statute of the ICC claims jurisdiction over individuals from states that are not party to the treaty. Similarly, some states - Spain and Belgium in particular - claim universal jurisdiction with respect to some crimes. The US Congress has rejected such claims by both the ICC and states.
Cheers
JohnT
Witness this post posted in the "Israel lobby thread," for some bizarre reason.
What this actually means is that any bunch of lawyers with an agenda, can allege war crimes, and get heard, regardless of the evidence.
... just another think we have to deal with, ...and not a big deal at that, but it has nothing to do with justice.
Infinity Journal "I don't care if this works in practice. I want to see it work in theory!"
- The job of the British Army out here is to kill or capture Communist Terrorists in Malaya.
- If we can double the ratio of kills per contact, we will soon put an end to the shooting in Malaya.
Sir Gerald Templer, foreword to the "Conduct of Anti-Terrorist Operations in Malaya," 1958 Edition
Is /Not ?
Agree.Partially agree -- I'd agree totally except for the sheer number of States about which it is said "Accepts ICJ jurisdiction with reservations." LINK. Not to mention some that don't accept it at all.(2) treaty law - applicable to all who are party to a treaty. The International Court of Justice (ICJ) is particularly useful here as a dispute settlement mechanism that the parties to the treaty have previously accepted. similar dispute settlement mechanisms operate in the WTO;Hmmm...(3) Law based on resolutions by the UN Security CouncilRightly so. Congress. Right that is. Hmmph, can't believe I said that...The final component is the International Criminal Court (ICC) established by treaty (Rome Convention) that clearly applies to all states that ratified the treaty. However, the statute of the ICC claims jurisdiction over individuals from states that are not party to the treaty. Similarly, some states - Spain and Belgium in particular - claim universal jurisdiction with respect to some crimes. The US Congress has rejected such claims by both the ICC and states.
The definition of law is pretty consistent across many references:
1. A rule of conduct or procedure established by custom, agreement, or authority. (we agree that for Intl law, this is true)
2.
a. The body of rules and principles governing the affairs of a community and enforced by a political authority; a legal system: international law. (You and I seem to disagree here. This definition is inconsistent in that 'enforced by a political authority' loses credence as the UN was specifically designed with good cause to NOT be able to do that)
b. The condition of social order and justice created by adherence to such a system: a breakdown of law and civilized behavior.
Thus I submit we have international law in the sense that it is custom heeded by most because it is generally to their benefit to do so. However, lacking an enforcement mechanism or entity it is not truly law, rather it is custom -- and politics.
Let's start with the promulgation function.
There are three traditional sources of "international law" -- inter-state treaties,
- UNSC resolutions, and
- international customary law (basically tradition)
Hence my comment about no legislature
In the international arena, nation states remain sovereign. A treaty dispute can be sanctioned, but the question is, at what cost? You erect trade barriers, you break the NPT, how much am I willing to put into enforcement? Treaties can also be abrogated instead of just violated. How much is that worth to you? JMM's Finnish friends abrogated the Treaty of Mutual Friendship & Cooperation w/ the former Soviet Union and a couple of key articles of their WWII peace treaty after the collapse of the FSU. Russia complained, but at the end of the day, was not in the position to do anything.
The situation is similar with UNSC resolutions -- if someone violates a resolution (DPRK missile test) whatcha gonna do about it?
To bring a case before the ICJ, the parties involved must first agree to the ajudication. If I think I can't win, I won't agree.
Some will also bring up the sanctions by the "court of public opinion". If you're bad, we won't like you. OOOOH!
The net result is that at the end of the day, 1) the big guys get to do what they want (if it's really that important to them), and 2) the right of self defense can never be taken away.
My point is that politics, not traditional judicial mechanisms dictate international law. That doesn't make it unimportant, it just makes it different.
So, we all agree that IL is different...
but, it is a different kind of law.
I should add that ICJ jurisdiction can be revoked (as the US did in the Nicaraguan harbor mining case in the 80s). So, the ICJ satute is a pretty weak reed, however, it is useful when the parties to a dispute want a settlement. The WTO actually is a much more powerful mechanism than any international court since the sanctions it delivers for a trade violation are self-executing (or rather executed by the aggrieved party with the approval and support of most if not all of its trading partners).
The UNSC does carry out the legislative function in IL as do treaty negotiators and ratifiers. Both are limited to what states are willing to execute. Case in point: UNSC Resolution directing Saddam to vacate Kuwait or else and authorizing the US to form and lead a coalition of military forces to drive him out. Legislation turned over to an Executive with teeth.
Cyber Issue
I recently came across an issue regarding the new cyber mission. An examination of the inter-relation between titles 10, 18, and 50 of the US Code with respect to the authority necessary for a cyber unit to do its job within the US. The Coast Guard was suggested as a potential model to follow given their dual mission. Bottom line is that cyber duties may be viewed as a hybrid between national security and law enforcement so this needs to be settled prior to something big happening because when it does it'll move at light speed with no time for quite reflection. If you get into anything close to this, I'd appreciate you sharing the knowledge.
-john bellflower
Rule of Law in Afghanistan
"You must, therefore know that there are two means of fighting: one according to the laws, the other with force; the first way is proper to man, the second to beasts; but because the first, in many cases, is not sufficient, it becomes necessary to have recourse to the second." -- Niccolo Machiavelli (from The Prince)
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