| Religion, Ethics & Law |
| Prof.
Kevin Reinhart, Dartmouth College |
Both
Muslims and non-Muslims want to know “what Islam thinks”
about such issues as the use of torture against suspected
terrorists, the use of suicide bombings, hostage taking
and similar “irregular” warfare practices. This paper
begins with a speculative consideration of how traditional
scholars might use the heritage sources of Islamic law
to respond to a set of hypotheticals about such issues.
It then questions the relevancy of such an exercise on
two grounds: the first is that Islamic legal discourse
requires specificity of circumstance that no hypothetical
can provide. More significantly, it argues that the traditional
authority of Islamic jurisprudence (qadis and muftis)
has been undercut by (a) the perception that state functionaries
like, say, the Shaykh al-Azhar are sort of Alberto Gonzaleses
to the state, and have no ethical independence; (b) the
development of scholarship in the academy that is shaped
not just by Islamic heritage sources but also by the global
discourse of public ethics—human rights, the distinction
between civilian and solider, for example; and, (c) the
rise of an Islamic laity who consider themselves competent
to decide what “Islam says” about a given issue.
|
| Dr.
Michael Skerker, Univ. of Chicago & DePaul |
“Just
War” theory is a key to understanding the question of
the legitimate use of violence, but it means different
things to different people -or societies- over time. In
the 5th century, Church fathers re-evaluated earlier theologians’
call for Christians to refrain from violence. The separation
from worldly things the New Testament seems to demand
was interpreted as referring to a spiritual rather than
a physical separation, clearly the way for Christians’
participation in coercive professions. Augustine could
assent to the Roman criteria of just war—such as right
authority and just cause—perceiving how violence could
be used to fulfill the Christian vocation of loving the
neighbor. As his concern is to justify Christians’ participation
in war, rather than to justify particular wars, he needs
to add the criterion of right intention to insure proper
spiritual orientation. Later theologians would add criteria
describing just behavior in warfare.
|
| Rabbi
Jonathan Crane, Univ. of Toronto-Canada |
Jewish
reflections on contemporary armed conflict generally and
on terrorism specifically require plumbing the depths
of Judaism’s legal and ethical textual traditions. Methodological
challenges, including geopolitical contexts, Israel, internal
extension and external extension, deserve attention before
addressing factual hypotheticals. Strategic issues considered
are proportionality, privileged spaces and privacy. The
collective and the individual levels of tactical hypotheticals
facilitate exploring collective punishments such as detaining
family members, destroying homes and livelihoods on the
one hand, and interrogation, torture and the value of
the information gathered thereby on the other. This survey
illustrates Judaism’s complex claims on and approaches
to warfare ethics.
|
| Dean
Marsudi Triatmodjo, Gadjah Mada Univ. Faculty of Law-Indonesia |
| Important
international law problems involve the question whether
reasons stated formally for armed intervention in the
form of peacemaking are true, because they constitute
the basis for significant encroachment on state sovereignty
and rights recognized under international law. That is
the background of the ongoing Iraq conflict. Rationales
offered included eliminating terrorist dens and destruction
of claimed weapons of mass destruction. But with the benefit
of hindsight, most of these offered reasons ring hollow.
This is accompanied by the fact that Middle Eastern states
like Iraq are linked culturally to Islam. The resulting
analogy is a doubtful claim that Iraq is to "terrorist
state" as Islam is to [fill in the blank]. The difference
in perceptions about Islam between Western countries and
the Islamic world, raised up often in conjunction with
distorted views of concepts like jihad, leads to a false
understanding in Western discourse. Does the innocent
religious concept of jihad, linked with many extremist
violent actions committed as crimes in its name, really
mean what the sensationalist press seems to assume? The
Western world presumably rejects the idea often heard
in the Islamic world that this gross misconception of
Islam must represent a media conspiracy. But why do all
these clear misconceptions continue in the Western press,
which form public opinions of Islam that ultimately must
underlie actions like the foreign intervention in Iraq?
|
| |
| Constitutional & Domestic
Law-Individual Rights |
| Kenneth
Hurwitz, Senior Associate, US Law & Security Program,
Human Rights First |
We
discuss the current administration’s understanding of
Executive Power, as manifested in connection with policies
on torture and interrogation. The various administration
memoranda that have been leaked or released since last
spring’s revelations about the Abu Ghraib prison scandal
articulate a breathtakingly broad vision of Executive
autonomy, growing largely out of the Commander in Chief
power. For example, then Assistant Attorney General Jay
Bybee’s August 1, 2002 memorandum to Alberto Gonzales
regarding standards of conduct for interrogation argues
that it would be unconstitutional for Congress to criminalize
interrogation techniques or other kinds of behavior that
would interfere with the Executive’s ability as Commander
in Chief to gather intelligence as he sees fit. While
the memo’s narrow definition of torture has since been
repudiated, the administration continues to champion a
view of Executive Power as being beyond effective legal
or institutional control.
|
| Geremy
Kamens, Asst Federal Public Defender (who represented
Yaser Esam Hamdi through the recent Supreme Court litigation) |
This
paper discusses the source of the Executive’s authority
as a limitation to detain citizens and non-citizens arising
out of the “War on Terror”. Does the Executive branch
by virtue of Article II of the Constitution, possess an
independent power to detain individuals seized during
wartime for the duration of the conflict? This ongoing
debate was recently deepened by three Supreme Court cases
–Hamdi v. Rumsfeld, Rumsfeld v. Padilla and Rasul v. Bush-.
In particular, the author argues that the Court’s plurality
opinion in Hamdi analyzed international law as an interpretive
limitation on the scope of Congress’ authorization to
use military force. Consequently, the Hamdi plurality
may have vastly expanded the substantive rights available
to non-citizens challenging their detention as inconsistent
with international law.
|
| Dr.
Wayne Elliott, former Head of the International Law Department,
Judge Advocate General's School, Charlottesville |
| The
events of 9/11 have focused attention on what had become
an almost forgotten issue--the trial of war criminals
before military commissions. President Bush’s Military
Order number 1 provides for the trial of certain suspected
war criminals--to be identified by the President-- before
military commissions. That Order has generated a great
deal of legal commentary on exactly how these trial fora
should be structured. Are the precedents of the past enough?
Is the core of the trial process one found in international
law, and more specifically the law of war, or is a commission
to be strictly governed by U.S. law? There is a long history
of using such commissions for war criminals. This paper
will discuss that history and examine the current issues
in light of prior practice. |
| |
| Constitutional & Domestic
Law-Structural & Institutional |
| Prof.
John Mansfield, Harvard Law School |
The
war on terror is conceived of in part as a longer term
struggle for hearts and minds in the Islamic world. Defined
as such, the US Government is attempting to address religious
groups with a specific message. This kind of behavior
would be suspect under the First Amendment to the US Constitution
if conducted within US borders. These messages are targeted
abroad, but does the First Amendment stop at the water’s
edge?
|
| Prof.
Robert Turner, Univ. of Virginia Law School Center for
National Security Law |
National
security and separation of powers analysis for intelligence
reform – external security.
|
| Prof.
Norman Bay, Univ. of New Mexico & former US Attorney |
National
security and separation of powers analysis for intelligence
reform – internal security.
|
| Michael
Hurley, 9/11 Commission Senior Staff & career CIA
with post 9/11 three tours in Afghanistan |
| Intelligence
reform post 9/11 is a work in progress. The Director of
National Intelligence will be one of the most powerful
figures in the U.S. government. In a democratic society,
strong actors require equally strong watchdogs. Without
significant reform of its own committee structure and
practices, Congress will not be the full partner the intelligence
community needs in the post-9/11 era. As the 9/11 Commission
said in its report, “The other reforms we have suggested…
will not work if congressional oversight does not change
too”. Encouraging Congress to undertake meaningful internal
reform remains one of the former commissioners’ top priorities. |
| |
| Law of Armed Conflict &
International Law-Operational Law |
| Dean
Hikmahanto Juwana, Univ. of Indonesia Faculty of Law |
We
shall analyze command responsibility from the Indonesian
perspective of the domestic human rights trials examining
events surrounding East Timorese independence. The speaker
was expert witness for command responsibility in these
proceedings.
|
| Dr.
Dino Kritsiotis, Univ. of Nottingham Faculty of Law -UK
& San Remo internal armed conflict reporter |
Armed
conflict law in international vs. internal armed conflicts,
do we have unitary or different sets of rules?
|
| Prof.
George Walker, Wake Forest Law School & former Stockton
Professor at the US Naval War College |
Given
the scales and scenarios of armed conflicts today, the
development of UN Charter-based law and the growth of
human rights norms as well as traditional principles of
law applying during those conflicts, what are the rules
for law during war? Although many see 9/11 as a sharp
dividing line, significant changes had been taking place
since 1945-1949. The paper explores the nature of armed
conflict before and after 1945, and the humanitarian law,
as well as the law of the UN Charter and human rights
law that have followed these trends. The paper then offers
an analysis of the interrelationships of these bodies
of law. Based on “due regard” standards and factors for
applying them, the paper presents six principles that
may contribute to resolving dilemmas.
|
| Prof.
Kevin Govern, Lt. Col. US Army, Law Department, USMA at
West Point |
| The
nature and proliferation of national and international
armed conflicts from the 20th Century through the present
day challenges traditional notions of what is or is not
a “war,” and what legal principles apply to such conflicts.
This paper advances a multidisciplinary approach to the
principles and methodologies which define this nether-region
of what lies “between war and peace,” and legal principles
which are applicable to same. In so doing, it is necessary
to address the causes of violent conflict and instability,
as well as the means of influencing conflict and conflict
resolution “between war and peace,” to include but not
limited to the range of military responses. For the counselor,
commander, coordinator, or political leader, this paper
suggests methodologies of finding and applying legal and
policy references “between war and peace.” |
| |
| Law of Armed Conflict &
International Law-Legal Responsibility & National
Views |
| Miriam
Aukerman, Soros Justice Fellow, Western Michigan Legal
Services |
Participants
in the debate about the use of prosecution in transitional
justice tend to share the assumption that prosecuting
perpetrators of injustice is the optimal method for dealing
with past atrocities. Implicit in this idea is the statement
that atrocious human rights violations are in fact crimes.
However, what is the real utility of the analogy between
human rights violations and ordinary crimes? Is prosecution
always the optimal choice to achieve justice? Ms. Aukerman
believes that the choice between prosecution and non-prosecution
alternatives should depend on what one is seeking to achieve,
on the justification of punishment. She advocates for
following a goal-and-culture approach that takes into
account the social and political realities of a particular
transitional context. Further, she suggests that the decision
of what approach to take should reflect both domestic
and international concerns. “Even when the goals of domestic
criminal and transitional justice are the same, the best
method of achieving those goals may be different”.
|
| Prof.
David Linnan, Univ. of South Carolina School of Law |
| There
is visible tension in contemporary law between three concepts
in the post-conflict setting, namely (1) the ICC model
of trial by an international tribunal of accused war criminals/gross
human rights violators under international law, (2) the
model (apparently soon to be followed in Iraq) of trial
by a domestic tribunal of accused war criminals/gross
human rights violators under domestic and/or international
law, and (3) the truth and reconciliation commission model
followed often in the developing world (South Africa,
parts of Latin America and Asia) under which there is
no trial of accused war criminals/gross human rights violators
but rather an inquiry to establish facts from a moral
or historical perspective under which subsequent criminal
prosecution is theoretically possible, but in fact very
rare. The problem is that the first is the apparent preference
in the international community and among proponents of
international criminal law, while state practice in the
developing world appears to favor the third approach and
occasionally to adopt the second. What does this discrepancy
between apparently preferred approach and observed state
practice tell us? I would argue that the hidden key reflects
larger tensions in international law between human rights
approaches premised on individual responsibility and something
else. The practical issue is that enormous intellectual
effort and resources have gone into a view of international
process and individual responsibility that has become
more symbol than guide to state practice. How do we explain
these apparent discrepancies, and is it simply politics
or something more at work? |
| |
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