In Tuesday night’s Republican debate, the candidates focused most of their attention on foreign policy, specifically what needs to be done to protect the American people. While the candidates ended up agreeing on many ideas, the clearest sense of unity on the stage was behind the notion that the United States needs to be tougher. We need to have a tougher immigration policy, we need to move away from the “feckless weakling president” in the oval office, and most importantly we need to be “tough” on ISIS.

Senator Ted Cruz started off by upping the standards for toughness. When asked about his previous call to “carpet bomb” ISIS, Cruz doubled down. He referenced the first Persian Gulf War, noting that the United States conducted around 1,100 airstrikes a day. But when Wolf Blitzer, the debate’s moderator, pressed Cruz on how that would affect civilians, he gave a rather bizarre response:

You would carpet bomb where ISIS is, not a city, but the location of the troops. You use air power directed — and you have embedded special forces to direction the air power. But the object isn’t to level a city. The object is to kill the ISIS terrorists.

Now on its face, that might sound like a sensible policy; few people would argue against a decisive bombing campaign that only killed terrorists. But that’s simply not the reality on the ground. There isn’t a huge group of ISIS soldiers standing around in the middle of the desert. They are deeply embedded in civilian populations, primarily in cities where indiscriminate bombing campaigns would kill massive amounts of civilians.

Cruz faced questions like that before, yet he has maintained his view that his policy wouldn’t kill civilians. In a recent interview with NPR, Cruz even noted that “no reasonable military endeavor targets civilians.” But looking at the reality in Iraq and Syria, what Cruz is calling for would have a massive civilian casualty toll. There are only a few conclusions available here–Cruz is either fine with more civilian deaths than he is letting on, doesn’t actually realize how ISIS is operating, or is intentionally misleading people–all three seem troubling.

Not to mention that carpet bombing, a term Cruz has repeatedly used when talking about ISIS, hasn’t been used since the Vietnam war. As Politifact points out, the main tenet of carpet bombing is that it is indiscriminate and not targeted. Even in the Gulf War, which Cruz regularly cites as an example, the military used targeted bombs. Moreover, the practice of carpet bombing may also violate the 1977 Protocol Additional to the Geneva Convention. What is true about carpet bombing? It sounds tough.

To be sure, the current U.S.-led bombing campaign has caused a large number of civilian casualties in Iraq and Syria despite taking some precautions. While that is, by itself, worthy of debate, the debate on Tuesday night changed the way foreign policy is discussed in the Republican campaign. It seems as if the proposed policies are no longer about helping solve an already impossibly complicated situation, rather they are simply a way to display America’s, and by extension the candidate’s, toughness.

So what exactly does this toughness entail? Toughness, while often vague and said without further explanation, means being willing to act regardless of the consequences. That concept was even baked into the questions given to the candidates. Conservative radio host Hugh Hewitt questioned whether being a kind, evangelical neurosurgeon would prevent Ben Carson from doing what ‘needs to be done.’ Hewitt asked,

We’re talking about ruthless things tonight — carpet bombing, toughness, war… Could you order air strikes that would kill innocent children by not the scores, but the hundreds and the thousands? Could you wage war as a commander-in-chief?

In response, Carson reflected on the tough decisions he had to make as a surgeon, noting the firmness with which he dealt with his patients. “You have to be able to look at the big picture and understand that it’s actually merciful if you go ahead and finish the job, rather than death by 1,000 pricks,” he said. But what he was saying did become clear until his next exchange with Hewitt:

Hewitt: So you are OK with the deaths of thousands of innocent children and civilian? [The crowd boos]

Carson: You got it.

Carson was not alone in his disregard for civilian casualties. The sentiment was largely popularized by the Republican frontrunner Donald Trump, who recently said that the United States should go after terrorists’ families. My colleague Anneliese Mahoney has already noted that Trump is, quite plainly, advocating for war crimes, but he pressed on in Tuesday night’s debate. He said, “I would be very, very firm with families. Frankly, that will make people think because they may not care much about their lives, but they do care, believe it or not, about their families’ lives.” Trump later asked, “So, they can kill us, but we can’t kill them?” He was seemingly arguing that the U.S. response should play at the same level as the Islamic State.

By the end of the night, only Rand Paul managed to create a compelling contrast to his competitors:

If you are going to kill the families of terrorists, realize that there’s something called the Geneva Convention we’re going to have to pull out of. It would defy every norm that is America. So when you ask yourself, whoever you are, that think you’re going to support Donald Trump, think, do you believe in the Constitution? Are you going to change the Constitution?

Paul’s questions, and the extent to which we are okay killing civilians, are worth further consideration from the candidates and voters alike.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

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Buried treasure often seems a fantasy that doesn’t exist outside of the movies but last week, Colombia announced an archaeological discovery beyond the imagination of any Hollywood writer. The Spanish galleon San Jose, which was sunk on June 8, 1708, has been discovered off the coast of Colombia. The vessel may contain as much as $17 billion in precious metals and gems. Colombian President Juan Manuel Santos is already hailing the wreck as a major discovery for Colombia but there have been conflicting claims over who should profit from the salvage. Take a moment to learn about the bounty of the San Jose, the ongoing legal scuffle, and who stands to benefit.

History of the San Jose

The War of Spanish Succession raged from 1701 to 1714, sweeping across Europe and sending a dozen kingdoms into turmoil. The conflict sparked proxy battles in colonial territories in the Caribbean and Latin America. The Spanish relied on jewels and precious metals from their colonies to fund some of their battles in Europe and the British Empire sent ships from its holdings in the Caribbean to attack Spanish vessels carrying these treasures back to the court.

On June 8, 1708, a battle which is now referred to as Wager’s Action broke out in the early evening. A squadron of British ships commanded by Charles Wager ran into a Spanish treasure armada led by Admiral Jose Fernandez de Santillan off the cost of what is now the city of Cartagena. Wager attacked the armada, hoping to seize the treasure, but during the battle the San Jose exploded, losing its cargo and almost the entire crew to the depths of the sea. It is unclear why the ship burst into flames, but now that the wreck has been discovered, archaeologists may be able to determine the source of the explosion. Wager was able to sink another ship in the fleet, the Santa Cruz, but the rest of ships escaped him and sailed on to Cartagena. The Spanish court history recorded the loss of the San Jose’s crew in its records:

Six hundred lives had been destroyed in an instant. Most of them either were vaporized in the explosion or went to the bottom of the Caribbean with the tons of precious metal which had been destined to finance the killing of thousands more on the battlefields of Europe

Competing Claims to the Treasure

President Santos is hailing the discovery as a Colombian success, but a group of American salvage investigators, who call themselves Sea Search Armada, have contested the president’s claim. Sea Search Armada (SSA) claimed that it first found the wreck in 1982 and the Colombian government is trying to cut them out of the profits. According to the Associated Press,

Two years later, Colombia’s government overturned well-established maritime law that gives 50 percent to whoever locates a shipwreck, slashing Sea Search’s take to a 5 percent ‘finder’s fee.’…A lawsuit by the American investors in a federal court in Washington was dismissed in 2011 and the ruling was affirmed on appeal two years later.

SSA claims that the Colombian government recognized how profitable recovering the wreck could be and purposefully changed the existing law to cut out the research team which found the wreck 700 feet below the surface in 1982. The group claims that the original research team from the Glocca Morra Company (contracted by SSA) struck a deal with the Colombian government to receive 35 percent of the treasures of the San Jose. Colombia has not delivered on this deal and SSA managed to win the right to a 50 percent share to any proceeds make off of the wreck in a Colombian court case. However, the government has denied SSA’s claim to the treasure since announcing its recovery last week. The Colombian government is already planning to build a museum dedicated to the San Jose in Cartagena, hoping to draw more tourists into the site of the wreck. The SSA could potentially benefit off of the museum and the treasure itself if it appeal its case in coming months.

The litigation between the Colombian government and SSA has been brewing for decades but this week  an unexpected claimant entered the contest: Spain. Spanish Foreign Minister Jose Garcia-Margallo is obtaining more information on the wreck, hoping to build a case for returning it to its nation of origin. In a recent interview, Garcia-Margallo claimed that Spain wants to resolve any ownership conflict with Colombia in a peaceful manner but also stated that, according to a prior UNESCO convention, the wreck can be considered part of Spain’s national heritage and may fall under Spanish protection. President Santos has struck back at both American and Spanish claims, arguing that the wreck is part of Colombian national heritage and that the claimants throwing their hats into the ring have no right to the wreck. During a recent press conference, Minister of Culture Mariana Garcés discussed how the salvage of the ship was an effort organized and undertaken by Colombians. The three competing claims will most likely have to be processed in multiple courts, making it a truly international legal battle.

The Role of UNESCO

In 2009, the UNESCO Convention on the Protection of the Underwater Cultural Heritage went into effect. According to UNESCO,

Underwater cultural heritage encompasses all traces of human existence that lie or have lain underwater and have a cultural or historical character. Over the course of earth’s history, entire cities have been swallowed by the waves, and thousands of ships have perished at sea. While these ships, structures and other cultural items are not frequently visible from the water’s surface, they have survived at the bottom of lakes, seas and oceans, safely preserved by the submarine environment.  Such heritage provide testimony to various periods and aspects of our shared history; for example, the cruelty of the slave trade, the ferocity of war, the impact of natural disasters, traces of sacred ceremonies and beliefs and the peaceful exchange and intercultural dialogue between disparate regions of the globe.

The 2009 act was designed to protect these underwater sites for generations, both from the ravages of the sea and from looters who steal artifacts and sell them for personal profit. UNESCO has been criticized for being vague in the definition of “cultural heritage” and for poorly defining the procedures for how artifacts should be retrieved and restored. Spain may manipulate those ambiguities in attempts to gain ownership of the wreck of the San Jose but Colombia is not a participating member of the 2009 treaty and therefore has no binding obligation to turn the ship over to Spain. The San Jose was built in Spain but Colombia now considers the wreck to be part of its national history.

This raises an interesting question for future wrecks that pit a former colonial power against a country they once exploited. The ship itself was Spanish but the treasure came from Colombian mines and was uncovered by Colombian laborers. Spain may have been using the treasure to finance its European endeavors, but did the treasure ever truly belong to Spain or was it stolen from Colombian indigenous tribes? With access to the treasures of the wreck, archaeologists may be able to determine who held original ownership of the gold and gems using markings in the gold and shipping records to retrace where they came from. Charles Beeker, Director of the Center for Underwater Science at Indiana University, argues that the wealth aboard the San Jose was taken during conquest and should be returned to the indigenous population.

Conclusion

President Santos has announced that the retrieval of the shipwreck will take years to complete, so neither Colombians nor Americans can expect to benefit off of the San Jose immediately. However, the wreck presents an interesting challenge for policymakers trying to determine ownership of archaeological sites. Should “finder’s fees” be the only reward for researchers who unearth major archaeological finds or should we cut them a bigger piece of the pie?  Do indigenous populations have a right to treasures that were stolen from them decades ago or should colonial powers retain the wealth they captured during the height of imperialism? Discoveries like the San Jose don’t turn up every day so the legal code on how to proceed when they do is far from clear. As the Colombian government enters the international legal quagmire to defend their claim to the wreck, archaeologists and treasure hunters around the world are waiting with bated breath to see who will win the prize.

Resources

Primary

UNESCO: The World’s Underwater Cultural Heritage

Additional

CNN: Colombia Says it Found Spanish Galleon; U.S. Firm Claims Half of Treasure

Facebook: Sea Search Armada

Encyclopedia Britannica: War of the Spanish Succession

Live Science: Sunken Treasure Ship Worth Billions Possibly Found After 300 Years

CBS News: “Holy Grail” of Shipwrecks Found off Colombia

BBC News: Spain Says it has Rights to Colombian Treasure Ship

The City Paper Bogoto: The ‘Rich’ History of the San José

Law of the Sea Institute: Ensuring the Preservation of Submerged Treasures for the Next Generation: The Protection of Underwater Cultural Heritage in International Law

National Geographic: Treasure on Sunken Spanish Galleon Could Be Biggest Ever

Jillian Sequeira

Jillian Sequeira was a member of the College of William and Mary Class of 2016, with a double major in Government and Italian. When she’s not blogging, she’s photographing graffiti around the world and worshiping at the altar of Elon Musk and all things Tesla. Contact Jillian at Staff@LawStreetMedia.com

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This morning, Donald Trump called into “Fox and Friends” to explain what he would do to take down ISIS. While outlining his strategy he voiced some incredibly disturbing, legally questionable, and morally wrong ideas. Check out the clip for yourself:

.@realDonaldTrump: “I’d knock the hell out of ISIS… you have to take out their families.” https://t.co/ju4LYTl0JV

— FOX & Friends (@foxandfriends) December 2, 2015

Yup, Donald Trump said that in order to fight ISIS we have to “take out their families,” and that we’re fighting too politically correct of a war, in which we’re just too worried about civilian casualties.

Here’s the issue: what Donald Trump is advocating for by targeting ISIS members’ families is pretty much a crime against humanity. Whether or not he’d actually ever be held responsible for it is a whole different matter, given that the U.S. is not party to the various international courts that actually punish perpetrators. But what Donald Trump is advocating for isn’t just a show of aggression, or tough tactics against ISIS. It’s fundamentally against what we, as humans, have decided is acceptable in war.

International law is a complicated, very gray field. But there are some basics that it lays out. These are things that we’ve all pretty much universally decided should be illegal in war. There are “peremptory norms,” sometimes referred to as jus cogens, that lay out the things that are never acceptable under any circumstances. Peremptory norms include things like acts of genocide, slavery, and torture. That’s not to say that these things never happen, but more that they are viewed as the worst of the worst. Peremptory norms include crimes against humanity, which specifically forbid killing any civilians on purpose. While it’s pretty well recognized that sometimes civilian casualties are unavoidable, directly targeting civilians is always unacceptable.

There’s also Common Article 3 of the Geneva Conventions which forbids: “murder of all kinds, mutilation, cruel treatment and torture” for “persons taking no active part in the hostilities.” The idea that killing civilians is morally unacceptable has been reiterated in court over and over again, beginning with the Nuremberg Trials. Put very simply: we, as humans, have decided time and time again that directly targeting civilians in war, regardless of who they may be related to, is wrong.

Michael Walzer, a professor emeritus at the Institute for Advanced Study, discussed Trump’s statements with Mic, saying:

The crucial moral and … legal requirement … is to distinguish between combatants and civilians, and noncombatants and to attack only the combatants. To target the innocent is the worst crime of war.

International law truly is a gray area, and the U.S. hasn’t always been great about following it. We haven’t ratified the treaty that created the International Criminal Court, and we have a contentious history with accepting rulings by the International Court of Justice. Yet for one of our leading presidential candidates to argue that we should purposefully and publicly break international principles is beyond the pale. If we stoop to the level of committing atrocities against civilians, we are truly no better than our enemies.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Donald Trump’s New Strategy to Fight ISIS: Crimes Against Humanity? appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team:
Alexis Evans, Hyunjae Ham, Toni Keddell, and Symon Rowlands.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2015.

Click here for information on rankings methodology.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Top 10 Law Schools for International Law: #1 Georgetown University Law Center appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Alexis Evans, Hyunjae Ham, Toni Keddell, and Symon Rowlands.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2015.

Click here for information on rankings methodology.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Top 10 Law Schools for International Law: #2 Columbia Law School appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Alexis Evans, Hyunjae Ham, Toni Keddell, and Symon Rowlands.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2015.

Click here for information on rankings methodology.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Top 10 Law Schools for International Law: #3 Harvard Law School appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Alexis Evans, Hyunjae Ham, Symon Rowlands, and Toni Keddell.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2015.

Click here for information on rankings methodology.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Top 10 Law Schools for International Law: #9 University of Virginia School of Law appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Alexis Evans, Hyunjae Ham, Symon Rowlands, and Toni Keddell.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2015.

Click here for information on rankings methodology.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Top 10 Law Schools for International Law: #10 University of California, Los Angeles School of Law appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Alexis Evans, Hyunjae Ham, Symon Rowlands, and Toni Keddell.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2015.

Click here for information on rankings methodology.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Top 10 Law Schools for International Law: #8 Northwestern University School of Law appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Alexis Evans, Hyunjae Ham, Symon Rowlands, and Toni Keddell.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2015.

Click here for information on rankings methodology.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Top 10 Law Schools for International Law: #7 University of Michigan Law School appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Alexis Evans, Hyunjae Ham, Symon Rowlands, and Toni Keddell.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2015.

Click here for information on rankings methodology.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Top 10 Law Schools for International Law: #6 Fordham University School of Law appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Alexis Evans, Hyunjae Ham, Toni Keddell, and Symon Rowlands.

Click here to read more coverage on Law Street’s Law School Specialty Rankings 2015.

Click here for information on rankings methodology.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Top 10 Law Schools for International Law: #4 New York University School of Law appeared first on Law Street.

Research and analysis done by Law Street’s Law School Rankings team: Alexis Evans, Hyunjae Ham, Symon Rowlands, and Toni Keddell.

Click here for detailed ranking information for each of the Top 10 Law Schools for International Law.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

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The legal industry is changing and law schools are no exception. Applications and enrollment are both down, and the value of the traditional legal education with its current price tag is the subject of continual debate. Law Street Specialty Rankings are a detailed resource for prospective law students as they consider the many law schools across the country. Law Street Specialty Rankings blend the quantitative and qualitative in a way that accurately highlights the top law schools based on specialty programs.

J.D./M.B.A Programs

Full List: Top Schools for J.D./M.B.A. Programs

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1. Yale Law School

2. Harvard Law School

3. Cornell Law School

4. University of Pennsylvania Law School

5. Columbia Law School

6. Notre Dame Law School

7. New York University School of Law

8. Indiana University Maurer School of Law

9. UC Berkeley School of Law

10. University of Texas School of Law

Civil Rights Law

Full List: Top Schools for Civil Rights Law

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1. New York University School of Law

2. Columbia Law School

3. Georgetown University Law Center

4. George Washington University Law School

5. Harvard Law School

6. University of Texas School of Law

7. University of Pennsylvania Law School

8. University of Virginia Law School

9. University of Michigan Law School

10. University of California, Los Angeles School of Law

Criminal Law

Full List: Top Schools for Criminal Law

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1. Harvard Law School

2. Columbia Law School

3. University of Pennsylvania Law School

4. Georgetown University Law Center

5. New York University School of Law

6. University of Chicago Law School

7. University of Colorado, Boulder Law School

8. American University, Washington College of Law

9. Northwestern University School of Law

10. University of Virginia School of Law

Family Law

Full List: Top Schools for Family Law

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1. Loyola University Chicago School of Law

2. University of Colorado, Boulder Law School

3. DePaul University College of Law

4. Seton Hall University School of Law

5. University of Florida Levin College of Law

6. Harvard Law School

7. Fordham University School of Law

8. Columbia Law School

9. Hofstra University, Maurice A. Deane School of Law

10. New York University School of Law

International Law 

Full List: Top Schools for International Law

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1. Georgetown University Law Center

2. Columbia Law School

3. Harvard Law School

4. New York University School of Law

5. American University, Washington College of Law

6. Fordham University School of Law

7. University of Michigan Law School

8. Northwestern University School of Law

9. University of Virginia School of Law

10. University of California-Los Angeles School of Law

Law Street began ranking specialties in 2014, focusing on Intellectual Property Law, Healthcare Law, Business Law, Environmental & Energy Law, and Entertainment Law. Click here to read the 2014 Law School Specialty Rankings.

Click here for information on rankings methodology.

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Research and analysis done by Law Street’s Law School Rankings team: Alexis Evans, Hyunjae Ham, Toni Keddell, and Symon Rowlands.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Law School Specialty Rankings 2015 appeared first on Law Street.

Americans must abide by governing laws at a variety of levels throughout the country. Aside from the U.S. Constitution, each state has its own constitution further detailing the everyday relations between the state government and the people. But what about international law? Can we be affected as individuals by agreements the United States has entered into with foreign countries? Although it may seem a little far fetched, these questions have come up time and again in our court system. You may be surprised by how international law can affect you.

International Law in America

Overview

Two sources primarily make up international law: international agreements and customary practice. In adherence to U.S. law, international agreements can be established by entering into a treaty or an executive agreement. The executive branch has authority over treaties and executive agreements, but treaties need the consent of Congress as well. While Congress may be part of a joint agreement between the executive branch and Congress, that is not necessary; the president is only required to notify Congress of an upcoming executive order. Treaties and executive agreements may or may not be self-executing. Non-self-executing treaties and executive agreements do not immediately establish U.S. law, but evoke a promise to enact domestic legislation in order to enforce them in a timely fashion.

The strength of international law within the U.S. court system depends on a variety of circumstances. Self-executing treaties and executive treaties are generally considered to have equal status to federal law, superior status to state law, and inferior status to the Constitution. Generally speaking, non-self-executing agreements have limited strength. The question still remains whether implemented legislation required from these agreements can be reviewed for validity by the Supreme Court.

The second source of international law is customary international practice. Customary international law is essentially general practice–for example genocide has been forbidden by common practice even before it was codified. It is generally understood that U.S. statutes that conflict with customary international practice will reign supreme, although that phenomenon is relatively rare.

What is the Treaty Power?

The Constitution designates that the President has the authority to sign treaties “with the Advice and Consent of the Senate” and a 2/3 vote in the Senate. The treaty power maintains our system of checks and balances and makes passing a treaty a relatively hard process. The Supremacy Clause of the Constitution calls treaties “the Supreme Law of the Land.”

The U.S. is governed by both federal and state authority, and jurisdiction is established by the Constitution. The 10th Amendment reserves all power to the states when not specifically delegated otherwise or specifically prohibited in the Constitution. So federal authority can ratify a treaty. But what happens when the laws meant to implement the treaty overstep into state jurisdiction? Technically, that could be increasing Congress’ powers. These kinds of inconsistencies make the integration of international law even more of a gray area.

What is the Necessary and Proper Clause?

The clause, also known as the Elastic Clause, under Article 1 of the Constitution empowers Congress “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” The Necessary and Proper Clause grants the federal government power to govern outside its set natural jurisdiction when required to enforce federal laws. This clause is specifically used to justify implemented legislation in enforcing international treaties and executive agreement.

Here is a quick video explaining the clause with regard to the 10th Amendment.

These are, of course, not the only aspects of American law that affect the application of international law, but they are the ones that are most often discussed and considered when attempting to determine the scope of that application.

Case Study: Bond v. United States

In some ways, this case is more apt for a soap opera than the U.S. Supreme Court, but very important legal questions were hidden under the dramatics. In this case, international policy implicitly affected a single person. An individual right, specifically the 10th Amendment, was called into question. In an even rarer scenario, the case was brought before the Supreme Court twice. The first question posed to the Supreme Court was whether we can challenge international laws (treaties) as individuals using our individual rights and the 10th Amendment? The second, can the Supreme Court deem unconstitutional implemented legislation brought on by international law?

Summary of the Initial Case

In Lansdale, Pennsylvania, Carol Bond discovered that her friend, Myrlinda Haynes, was pregnant from an affair with her husband, Clifford Bond. In a flare of passion, she vowed revenge. Bond is a trained microbiologist, and at the time worked for the chemical manufacturer Rohm and Haas. She took advantage of her connection to steal 10-chloro-10H-phenoxarsine from Rohm and Haas and ordered potassium dichromate over Amazon. The chemicals can be poisonous with minimal topical contact. Over the course of at least 24 attempts, Bond spread the chemicals on Haynes’ house and car door handles and mailbox. Fortunately, Haynes was often able to spot the chemicals from noticeable color distortions and only suffered from a mild hand burn that was cleaned with water.

After several attempts to contact local police to no avail, Haynes brought the matter to federal officers of the Postal Service. At the culmination of the investigation, Bond was ultimately charged with two counts of possessing and using a chemical weapon in violation of Title 18 of the United States Code and section 229 of the Chemical Weapons Convention Implementation Act of 1998 and two counts of mail theft. Bond pleaded guilty and had the right to appeal. She was sentenced to six years in federal prison.

What is the Chemical Weapons Convention Implementation Act of 1998?

The Chemical Weapons Convention Implementation Act (CWCIA) of 1998 implements the Chemical Weapons Convention (CWC) into U.S. federal legislation. Section 229 is the penalty provision.

Read More: The Forgotten Chemical WMDs: Chemical Weapons

The United States signed the CWC on January 13, 1993 and initiated it in April 1997. The international convention currently has 190 state parties. The CWC prohibits the development, production, stockpiling, and use of chemical weapons. The National Implementation Measures clause prohibits “natural and legal persons anywhere on its territory … from undertaking any activity prohibited to a State Party under this Convention.” Section 229 of the CWCIA specifically decrees it “unlawful for any person knowingly to develop, produce, otherwise acquire….retain, own, possess, or use, or threaten to use, any chemical weapon.”

The CWC was signed with specific intentions aimed at international peace. It is a ceasefire for all countries involved in the manufacture or possession of chemical weapons or weapons of mass destruction, as means of combat to ensure global safety. The treaty is non-self-executing, meaning the CWC itself didn’t establish any U.S. laws, but evoked a promise from the U.S. to enact future legislation in accordance to the treaty.

First Supreme Court Case

The first question at hand: Does Bond have standing to challenge the federal chemical weapons charges filed against her under the CWCIA claiming her 10th Amendment rights? The answer ended up being yes. The court found that a federally indicted criminal defendant has the right to challenge the statue raising the question of federalism and states’ rights under the 10th Amendment.

The following video recaps the initial case summary and further details the defense’s arguments.

The court also questioned whether the CWCIA is valid under the “necessary and proper” clause to enforce the Treaty Power. The Supreme Court opted out of making that decision and remanded the case to the Third Circuit.

Third Circuit Case

The Third Circuit stated the validity of a treaty was “beyond [its] ken.” The creation of treaties is outside the courts’ powers; they are created by the President and Senate. The court ruled that for a valid treaty, implementing legislation need only to be “rationally related.”

The Third Circuit used the 1920 case Missouri v. Holland as precedent. That case concerned the Migratory Bird Treaty Act of 1918, a treaty established with Great Britain. The regulation of the hunting of migratory birds was previously deemed as a state concern, outside of Congress’ jurisdiction. The former case declared “the premise that principles of federalism will ordinarily impose no limitation on Congress’ ability to write laws supporting treaties” is implicit under the “necessary and proper” clause.

This decision raised natural concerns. Onlookers worried that if the court refused to decide on the validity of treaties, then anything goes. The President and Senate could ultimately ratify a treaty that required implementing laws that would otherwise be gravely illegal. Congress could theoretically grant itself powers it previously lacked through the Treaty Power.

This video features Nicholas Quinn Rosenkranz, a Law Professor at Georgetown University and Senior Fellow at the Cato Institute, further discussing the merits of the Treaty Power with regard to the case. Rosenkranz advocates limited power of the Treaty Power and enforcement of domestic law.

Second Supreme Court Case

The case was brought back to the Supreme Court to further test the scope of the treaty power. The case had an opportunity to create a landmark decision but fell short. The majority response failed to make a decision in that regard. It did side with the defense, however, claiming that Bond’s actions didn’t fall within the CWCIA in the first place.

The Court emphasized the importance of Congress’ intent when implementing federal laws with regard to treaties. The CWCIA was not intended to punish local criminal activity, which has generally been a state concern. The Court also considered the definition of a chemical weapon, and decided Bond’s chemical choices did not fit. Justice Roberts explained, “In sum, the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemi­cal irritant as the deployment of a chemical weapon.” Although Bond’s actions didn’t fall under the CWCIA, the decision casted “serious doubts about whether the treaty power can reach local crimes.”

The Court unanimously decided  in favor of Bond, although Justices Scalia, Alito, and Thomas wrote separate concurring opinions. They did not agree with the majority opinion that Bond’s actions didn’t fall under the CWCIA. They believed the CWCIA expressly prohibited “toxic substances” outside of “peaceful purposes.” The three justices sided with Bond in belief that the CWCIA is unconstitutional and goes outside of Congress’ enumerated powers. Treaties should only concern “matters of international intercourse,” not “matters of purely domestic regulation.”

So although the majority avoided the issues of the Treaty Power, Justices Scalia, Alito, and Thomas faced it right on. While the gray areas of international law and national application still exist, this at least hints to the fact that the Supreme Court may not hold American citizens to international laws that infringe on their rights in the future.

Conclusion

Can Americans be held to International Laws? It seems so. What if they intrude on individual and states’ rights?  The first Bond v. U.S. decision decreed we have the legal right to raise objections. The Supreme Court decision ensures our right as individuals to check the federal government when entering international agreements. It is important that the balance between state and federal government power stays in check. Even if the President and Senate can legally ratify international treaties, it doesn’t mean they should if they “violate traditional American rights, including the individual rights of federalism and the separation of powers.” American law, as always, reigns triumphant in the U.S.

Reources

Primary

Congressional Research Service: International Laws and Agreements

Justia: Bond v. United States

U.S. Chemical Weapons Convention: National Implementation Measures

Additional

Cornell University Law School: 18 U.S. Code & 229

Heritage Guide: Necessary and Proper Clause

Heritage Guide: Treaty Clause

Legal Information Institute: CRS Annotated Constitution

Atlantic: Bond v. U.S. Doesn’t Mean Latvian Cops Are Coming For Your Guns

The Heritage Foundation: Bond v. United States

Slate: Chemical Reaction

Washington Post: Thoughts on Bond v United States

Jessica McLaughlin

Jessica McLaughlin is a graduate of the University of Maryland with a degree in English Literature and Spanish. She works in the publishing industry and recently moved back to the DC area after living in NYC. Contact Jessica at staff@LawStreetMedia.com.

The post What Are Your Individual Rights When it Comes to International Law? appeared first on Law Street.

In discussions of international politics, we hear a lot of talk about nuclear weapons, but another deadly type of weapon often goes overlooked. Chemical weapons have both proven their deadliness on the battlefield and have been deployed with greater frequency in contemporary times. Nevertheless, just two-and-a-half years since President Obama made his infamous “Red Line” speech against the use of chemical weapons in Syria, this issue has drifted from the public consciousness. While interest has waned publicly, these weapons are still being used on battlefields across the globe, even as legislation and efforts are being made to eliminate them for good. Read on to learn about chemical warfare, the legal framework for using chemical weapons, and how successful efforts to eliminate them have been.

History of Chemical Warfare

While chemical weapons in rudimentary forms have been in use for millennia, it was only relatively recently that they were harnessed in a modern sense. Chemical weapons made their debut on the stage of WWI. During that war, toxic gases such as chlorine and mustard gas were released from canisters on the battlefield. The results were devastating for two reasons. Not only were chemical weapons responsible for over a million causalities on the battlefield, but they also left a strong impression on the public’s consciousness. The video below explains the use of chemical warfare, particularly in WWI.

Nevertheless the use of the weapons continued through the inter-war years, particularly in places such as Russia and Africa. Usage was ramped up again in WWII. In the Far East, the Japanese used a variety of chemical agents in their attempted conquest of China. Meanwhile, in the Atlantic theater, chemical weapons were used by a number of parties, most notoriously by the Nazis in their death camps.

Even after WWII chemical weapons continued to be used. In one of the most glaring instances, the United States used instruments such as Agent Orange in Vietnam. The Americans were not alone, as the Soviets later employed chemical weapons in Afghanistan. Iraq utilized the deadly agents in its war against Iran as well as against its own Kurdish citizens.

Additionally, the usage of chemical weapons by individuals and terrorist groups has become a concern too. The most prominent example came in Japan in 1995, when the Aum Shinrikyo cult used nerve agent Sarin in a Tokyo subway. Chemical weapons were also used by terrorists in Iraq and Afghanistan during the American occupation. Even ISIS has deployed chemical weapons in its battles against Iraqi and Kurdish soldiers.

The most recent high profile and controversial use occurred in Syria in 2013. In late March it was reported that the use of chemical weapons had been detected. While both the Syrian military and the rebels denied using the weapons, each blaming the other side, the usage of chemicals had crossed what President Obama called a “red line.”

While the episode in Syria was just one in a long line of chemical weapons attacks, it aroused concern over whether the existing framework to prevent the creation and use of chemical weapons was adequate. So, what is that framework?

Legality of Chemical Weapons

The horror of chemical weapon usage in WWI left a lasting image in the minds of many people. Thus in 1925, the first legislation aimed at prohibiting the dissemination of chemical weapons was passed. This was known as the Geneva Protocol and it prohibited the use of chemical weapons in warfare. However, the treaty proved inadequate in several ways as it allowed for the continued production of chemical weapons. Additionally, it also gave countries the right to use chemical weapons against non-signatories and in retaliation if weapons were used against them.

The Chemical Weapons Convention

Although seemingly inadequate, the Protocol nonetheless proved to be the only protection against chemical weapons for the next 65 years. Finally in 1992 however, the Chemical Weapons Convention was adopted. It was subsequently opened for signature beginning in 1993 and put into force in 1997. Unlike the Geneva Protocol, the CWC has a much clearer and all-encompassing goal: eliminate an entire category of weapons of mass destruction.

Namely what the treaty calls for is the prohibition of the “development, production, acquisition, stockpiling, retention, transfer or use of chemical weapons by states parties.” The chemicals themselves are divided into three different schedules, which may sound similar to those familiar with the U.S. drug classification regime. In addition, the signatories are responsible for enforcing these protocols within their own countries. Along with stopping the production of chemical weapons, states are required to destroy existing stockpiles and production facilities. Lastly, states are obligated to create a verification system for chemicals and must open themselves to snap inspections by other members. The video below details which chemicals are banned and what the CWC requires of its members.

Chemical Weapons Prohibition Regime: Success or Failure?

So is the current chemical weapons convention (CWC) a success or failure? Different metrics tell different stories.

Arguments for Success 

Membership in the treaty certainly casts a positive glow. As of 1997 when the treaty took effect, 190 countries had joined with only five–Israel, Egypt, North Korea, Angola, and South Sudan–not yet ratifying the treaty. Furthermore, real progress has been made in implementing a number of the treaty’s goals. As of 2007, 100 percent of chemical weapons sites had been “deactivated,” 90 percent of which had either been destroyed or switched to peaceful use. Additionally, over 25 to 30 percent of stockpiles had been destroyed and 2,800 inspections had been carried out. The map below indicates countries’ signing status: light green indicates that the country signed and ratified the CWC, dark green indicates that the CWC is acceded or succeeded, yellow countries have signed but not ratified the CWC, and red countries are not signatories.

Image courtesy of Wikimedia

Arguments For Failure

Conversely, while those metrics point to success, there a number that tell the opposite story. The world has failed to meet the 2012 deadline originally set by the treaty for completely disarming all chemical weapons globally. The two main culprits were also two of the main catalysts behind the treaty in the first place: Russia and the United States. These two countries possess the largest stockpiles of chemical weapons, so their compliance with the treaty carries significant weight. The video below shows the failures of the U.S., Russia, and other nations to uphold the treaty’s protocols.

Along with failure to disarm is the question of favoritism. While the U.S. has been critical of other countries’ efforts to disarm, it has not pressured its close ally Israel to ratify the treaty, let alone destroy its acknowledged stockpile.

Other issues also exist. Several countries, despite having ratified the treaty, have not set up the international policing mechanisms necessary and required by the treaty to give it any actual power. Additionally, the inspection process itself has been described as unfair and inadequate. Because labs are transitioning from large factories to smaller compounds, it’s difficult to inspect and punish individual labs for producing illegal compounds. Furthermore, there are a number of non-lethal compounds used by the police–such as tear gas–that are not covered by the CWC and can be harmful. Lastly, while the treaty covers states, it does nothing to prevent groups such as ISIS or Al-Qaeda from using the harmful weapons.

Conclusion

As of June 2014, Syria completed the process of either giving up or destroying all of its declared weapons. This was seen as a major coup as most expected Syria to sandbag, especially after it missed prior several deadlines. Although Syria declared its chemical weapons, it is still suspected that other secret caches remain. Additionally, after the first acknowledged use–the event that overstepped the Red Line and led to the agreement between Russia, the U.S., and Syria–there were several more speculated incidents of chemical weapons use in Syria.

This points to the problem with the Chemical Weapons Convention. Like the Non-Proliferation Treaty for nuclear weapons, there is no governing body that can punish a country for violating it. This is because joining the treaty is voluntary and there is no punishment for not joining or even for joining then quitting. Moreover, most of the countries that did join never had chemical weapons to begin with, thus signing a treaty prohibiting them made no difference. The bottom line then is that when it comes to chemical weapons, much like nuclear or biological weapons, the onus is on the individual country to comply.

Resources

Primary

United Nations Office for Disarmament Affairs: Chemical Weapons Convention

Additional 

Fact Check.org: Obama’s Blurry Red Line

OPCW: Brief History of Chemical Weapons Use

Johnston Archive: Summary of Historical Attacks Using Chemical or Biological Weapons

American Society of International Law: The Chemical Weapons Convention After 10 Years

Arms Control Association: Chemical Weapons Convention Signatories and States-Parties

Washington Times: U.S. and Russia are Slow to Destroy Their Own Chemical Weapons Amid Syria Smackdown

Think Progress: Nobody Thought Syria Would Give Up Its Chemical Weapons. It Just Did

Military.com: U.S. to Destroy Its Largest Remaining Chemical Weapons Cache

Michael Sliwinski

Michael Sliwinski (@MoneyMike4289) is a 2011 graduate of Ohio University in Athens with a Bachelor’s in History, as well as a 2014 graduate of the University of Georgia with a Master’s in International Policy. In his free time he enjoys writing, reading, and outdoor activites, particularly basketball. Contact Michael at staff@LawStreetMedia.com.

The post The Forgotten WMDs: Chemical Weapons appeared first on Law Street.

There’s no gray area quite like international law. Historically speaking it’s a relatively new field, and every nation accepts various parts of it. But essentially there are a number of different treaties, measures, and conventions that mediate the ways in which our nations interact, both in war and peace. Nations have certain obligations, and despite the United States’ abysmal track record when it comes to international law, we’re held to them too. We don’t live in a vacuum. After the collective political hissy fit that 47 Senators just had in the form of a truly condescending letter to Iran, it’s time to remind Senate Republicans of that.

The United States has long been dismissive of international law, and understandably so. For example, we have refused to ratify the Rome Statute–the document that created the International Criminal Court–out of fear that our heads of state could ever be tried in an international court. In fact, the United States has long occupied a position upon a hypocritical throne, condemning the actions of others that don’t fall in line with international norms and agreements while seldom being held to other international standards ourselves. That’s not necessarily a bad thing. The U.S. has been the world’s superpower for decades, and we’ve acted the part.

Just because the United States is the only real superpower doesn’t mean that we got there on our own. We have allies, most of whom belong to NATO and are located in Western Europe. Could we be a superpower without Germany, and the United Kingdom, and France? Probably. Would it be harder? Almost certainly. Here’s an example: yesterday, U.S. Navy Secretary Ray Mabus reached out to our allies asking them for help in the fight against ISIS. At a Senate Armed Services Committee meeting Mabus stated with regard to our international allies’ cooperation in the ISIS fight, “we can’t do it by ourselves and they have to carry their fair share of the burden.” Senator Roger Wicker, a Republican from Mississippi (who also signed the letter to Iran) said:

We are going to have to insist on more of a contribution from our international partners. We keep the lanes open for them. Our friends in Europe, our NATO friends and our other friends are depending upon what you are talking about. We are going to have to collectively come up with a plan to convince our partners that it is in their interests too to make the financial sacrifice.

We could deal with ISIS without our international partners, most likely. But any politicians who put us in that position would face a lot of backlash for the political and financial ramifications.

What does this have to do with Iran, and the remarkable letter that Senate Republicans sent to Iran’s government? Well, it’s important to remember that this deal, like any aspect of international politics, does not exist in a vacuum. Most importantly, this isn’t just a negotiation between Iran and the U.S., it involves five other countries and will be endorsed by a U.N. Security Council Resolution. We would prefer not to piss off the U.K., Germany, and France for the aforementioned reasons. Although our relationship with China is rocky at best, it’s hands down one of our biggest trading partners. Finally, the hot mess that is Putin’s Russia is at the very least a major player on the world stage, and it would probably be in our best interest to not piss it off either.

So, when Senate Republicans wrote that laughably snappish letter to Iran warning about a future president overturning a deal they don’t like “with the stroke of a pen,” that indicates that said fictional future president wouldn’t just be screwing a deal with Iran–they’d be doing the same thing to the U.K., Germany, France, China, and Russia as well. That doesn’t necessarily mean that anything would come of it–it would probably take a hell of a lot more to lose the loyalty of some of our closest allies–but it’s still not a good move for a new president to make.

That’s sort of the crux of the issue though. Either Senate Republicans don’t give a crap about the delicate balance of global politics, or they are so desperate to stick it to President Obama that they no longer care. Either way, the letter was an extraordinarily dumb move by a remarkably short-sighted group.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Hey Senate Republicans: Iran Negotiations Involve Other Countries appeared first on Law Street.

The nation, and quite frankly the world, is reeling after the disclosure of an investigation by the Senate Intelligence Committee into the Central Intelligence Agency’s (CIA) torture practices following September 11, 2001. The report took a long time to come out–there was significant back-and-forth from the Senate, the White House, and the CIA. But now that it has, there’s no doubt–we regularly tortured people, and it didn’t work. The report is revealing, horrifying, and honestly, not entirely unexpected.

It’s an interesting time to be an American. We’re taught, from the youngest possible ages, that if you do something bad you pay the consequences. Our justice system is proof of that–we have the highest incarceration rate in the world. With freedom comes responsibility. Despite that, the CIA operatives, leaders, and anyone else in our government who were involved in this torture will probably never be punished. It’s like the pot calling the kettle black, except the kettle is someone who’s been thrown in jail for a few years for something like well, selling pot, and the pot brutally tortured approximately 100 prisoners.

There’s significant evidence to suggest that legal tracks were covered with regard to how we treated these prisoners. International Law, as grey and ineffectual a field as it is often considered, does exist. The Geneva Conventions dictate how nations behave in war and peace, and the particularly pertinent part is called Common Article 3, which forbids torture of prisoners. Essentially, it says that if someone is no longer an active participant in the conflict because of various reasons–including being detained–they must be treated humanely and the following cannot happen to them:

(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;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

In February of 2002, President George W. Bush signed an executive order proclaiming that Common Article 3 did not apply to Al Qaeda or Taliban prisoners; however, it was ruled four years later by the Supreme Court that Common Article 3 does apply, in a separate case regarding Guantanamo prisoners. The ridiculousness of the fact that Bush decided part of International Law didn’t exist is kind of beyond the point–the Supreme Court has even acknowledged that Common Article 3 can be used in federal court for prisoners’ protection. As The New York Times put it:

Perhaps most significantly, in ruling that Common Article 3 of the Geneva Conventions applies to the Guantanamo detainees, the court rejected the administration’s view that the article does not cover followers of Al Qaeda. The decision potentially opened the door to challenges, by those held by the United States anywhere in the world, to treatment that could be regarded under the provision as inhumane.

Furthermore, the Justice Department has authorized at least some of the torture tactics used, although some of that was after the fact. The Justice Department began an inquiry in 2009, but no charges were ever brought against anyone. It has announced that it’s not going to revisit that decision.

Now, with the disclosure of this report, U.N. officials are demanding that the U.S. do something. As the U.N. High Commissioner for Human Rights, Zeid Raad al-Huseein, put it while calling for prosecutions:

In all countries, if someone commits murder, they are prosecuted and jailed. If they commit rape or armed robbery, they are prosecuted and jailed. If they order, enable or commit torture recognized as a serious international crime they cannot simply be granted impunity because of political expediency.

He also pointed out that the United States did ratify the U.N. Convention Against Torture in 1994. Other U.N. officials, as well as leading humans rights experts have come forward to condemn the U.S.’s actions and demand some sort of accountability. It would be great if there was that accountability, but at this point I would be shocked. Everything the U.S. has done–Bush and Obama administrations alike–indicate that’s not going to happen. Everything in American history indicates that’s not going to happen. We have consistently shied away from the prospect that we could be held internationally accountable for our crimes.

Now, international law is incredibly complicated; the ways in which it applies to American law even more so. No one has the exact answers about what should or could happen here. But what’s almost certainly not going to happen is any sort of American appearance in front of the International Criminal Court (ICC). Located in The Hague, the ICC has the ability to prosecute individuals for various violations of international law. The statute that governs that court–the Rome Statute–has never been ratified by the United States. And the United States has veto power in the U.N. Security Council, meaning we can’t be referred.

The torture report indicates a horrifyingly dark time in this country’s recent history. We have the opportunity to make it clear that we recognize that truth, and an obligation to make sure it doesn’t happen again. We have a chance to show that we screwed up and we’re willing to pay the price. A chance to be an example of all of those ideals–freedom, democracy, right and wrong–that we espouse to other nations. Too bad we’re almost certainly not going to take it.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post The CIA: How to Get Away With Torture appeared first on Law Street.

On Tuesday in a dramatic escalation of the many-sided conflict in Syria, the United States, along with a coalition of Middle Eastern states, showered ISIS strongholds with airstrikes and Tomahawk cruise missiles. Lawmakers, public officials, and pundits have traded arguments over whether the United States has any interest in intervening, whether ISIS poses any threat to United States, and whether the United States has any justification in getting involved in Syria’s three and half year long civil war. In support of the strikes that started on Tuesday, President Obama has invoked several international and domestic legal justifications. Like any justifications for war, however, they aren’t completely solid.

On Tuesday, U.S. Ambassador to the United Nations Samantha Power answered the international justification question in a letter to Secretary General Ban Ki-moon, saying that the United States has the right to carry out self-defense on behalf of Iraq.

Generally, a country can only use force in the territory of another sovereign country if it is authorized to do so by the U.N. Syria is a sovereign country, and Power’s letter to Secretary General Ban only informs him of the attacks, it doesn’t ask for his permission. However, force can be used against a sovereign country without permission if it’s for the sake of self-defense. The United States is arguing that, although Syria is a sovereign state, it isn’t doing anything to stop or weaken ISIS within its own borders, justifying the United States’ defense-based intervention.

President Obama also has to cover his bases for legal justification domestically. To that end, he told Congress on September 9th that he doesn’t need Congressional permission and that he has the authority to take action. This justification can be found in the 2001 Authorization for Use of Military Force (AUMF). That resolution gave the President authority to:

Use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.

The law is vague and has a wide enough breadth that it has been successfully used by the United States for continued military actions across the world.

The organizations targeted in the wording of the AUMF have generally been Al-Qaeda and the Taliban. While ISIS has its origins in Al-Qaeda and claimed to still be affiliated, Al-Qaeda officially cut ties with ISIS in February, prompting controversy over whether the president actually has the legal authority to target them without Congressional approval. But this week’s strikes didn’t target ISIS alone. The Pentagon announced that the attacks also targeted the Khorasan, a little-known terrorist group that does have connections with Al-Qaeda via Jabhat al-Nusra, another Al-Qaeda offshoot in Syria.

Additionally, an incredibly interesting facet of this conflict is that, despite the fact that Obama has previously said that he wanted to eventually repeal the AUMF, he is using it to justify strikes against ISIS. The Obama Administration’s choice of justifications has prompted questions over the president’s apparent change of heart about practicing restraint in counterterrorism. Historically, however, the expanded offensive isn’t so strange, as Obama has bombed half a dozen other countries in the Middle East and North Africa during his presidency.

Remember that just over a year ago, the United States was having the same debate about getting involved in Syria, except that Obama was then insisting that it was necessary to bomb Syrian President Assad, after his regime killed upwards of 1,400 people in a sarin gas attack. That plan was ditched at the last second when Russia made a deal with Syria to dispose of the country’s chemical weapons. But historically speaking, what Obama’s administration did on Tuesday really isn’t a departure from his foreign policy strategies.

Some Obama critics say that if Obama had gone through with those threats against Assad last year, the United States may not be in this mess with ISIS today. A common theory about how ISIS grew to be so powerful is that Syrian President Bashar al-Assad strategically watched idly by as it clashed other rebel groups, who were trying to oust him and create a democratic government, and took over large swaths of land. He even bombed the rebels as they gained ground against ISIS. He did this, some say, in order to have a legitimate claim to having a terrorist threat in Syria and lure in Western powers to help him, and not the rebels. As it turns out, Assad didn’t need to convince the West to join his side. They are, however, giving him a courteous “heads-up” about bombing his enemies.

While his administration has done its homework and technically managed to justify these new attacks on ISIS, Obama’s words and actions surrounding them don’t scream consistency, either. His backing out of the plan last year to strike Assad in Syria suggests that he may have only been talking about strikes to save face. It suggests that only when words like “Islamist” and “terrorist” are being thrown around is it necessary to take action. And using the AUMF to take those actions suggests that it’s acceptable for the president to change his position on that justification whenever it’s convenient.

Zaid Shoorbajee

Zaid Shoorbajee is a an undergraduate student at The George Washington University majoring in journalism and economics. He is from the Washington, D.C. area and likes reading and writing about international affairs, politics, business and technology (especially when they intersect). Contact Zaid at staff@LawStreetMedia.com.

The post Strikes Against ISIS in Syria: Shaky Ground for Obama Administration appeared first on Law Street.

Crimes against humanity such as those committed by the Nazis during the Holocaust should never go unpunished. That seems like a completely obvious statement, one that everyone can get behind. But what if the crime was committed 70 years ago by man who is now 89 years old? That’s the question at issue in the case of Johann Breyer.

Since the end of World War II, the world has been on the hunt for members of Hitler’s administration. If a suspected perpetrator was found, he was usually extradited to Germany and put on trial there. This practice has continued all the way into 2014. But should Breyer, an 89-year-old man with signs of dementia, face trial for crimes he is accused of committing at the Auschwitz Death Camp many decades ago?

Johann Breyer has lived in the United States since 1952 when he immigrated here from Czechoslovakia. His mother was born in the United States, which granted him American citizenship. He worked as a toolmaker in Philadelphia, got married and had kids. Then, in 1992, he was accused of having Nazi ties and the Justice Department attempted to deport him.

He was ultimately allowed to stay, as the Justice Department lacked evidence to prove he took an active role in the killings. Breyer claimed he was a guard in the prison section of the camp, and since he was a minor when he served, he could not be held responsible for his actions. Basically, his argument was he took no active role in the killings and was instead forced to be there. This whole debate had little actual impact on Breyer’s life, as his name stayed out of the public eye.

After its failed deportation effort, the Justice Department attempted to persuade the German government to extradite Breyer, but the Germans didn’t act until very recently. After examining camp rosters and newly disclosed documents, the German government now claims that Breyer was not part of the prison guards, but rather a member of the infamous SS battalion, “Death’s Head,” trained to be particularly brutal to prisoners. The German government has charged Breyer with 158 counts of aiding and abetting murder — one for each train that arrived at the Auschwitz Death Camp during the six months Breyer was present. To put that number in perspective, those trains carried approximately 216,000 Jews.

Breyer faced these charges and potential extradition to Germany on Wednesday morning. Though he seemed confused, he told the judge he understood the charges against him, and he is now being held without bail until his extradition hearing on August 21.

The DOJ has charged more than 130 Nazi suspects in the last 35 years, but none were as old as Breyer. This brings us back to my original question — should a man that old, suffering from the onset of dementia, face charges for the crimes he perpetrated more than half a century ago?

My gut reaction to the thought of a nearly 90-year-old man in jail is that no, he shouldn’t be tried at this point; however, it angers me that Breyer got to live a normal, fulfilling life. He is innocent until proven guilty, but if he is proven guilty he does not deserve to die a free man. If guilty, he was complicit in the deaths of more than 200,000 people, yet has gotten to live without consequences. I would imagine that a Holocaust survivor probably feels quite enraged when he hears that a Nazi responsible for such horrific crimes has gotten to live a free life. We owe it to those victims and their families to bring anyone involved in these crimes to justice, regardless of age. Its been 70 years since Breyer committed these crimes, but time hasn’t run out yet.

—

Matt DeWilde (@matt_dewilde25) is a member of the American University class of 2016 majoring in politics and considering going to law school. He loves writing about politics, reading, watching Netflix, and long walks on the beach. Contact Matt at staff@LawStreetMedia.com.

Featured image courtesy of [Greg Heywood via Flickr]

Matt DeWilde

Matt DeWilde is a member of the American University class of 2016 majoring in politics and considering going to law school. He loves writing about politics, reading, watching Netflix, and long walks on the beach. Contact Matt at staff@LawStreetMedia.com.

The post Accused 89-Year-Old Nazi Facing Extradition to Germany appeared first on Law Street.

Whether you’re for or against drone strikes, it should at least be accepted that regulations should be followed when using drones. The Obama Administration’s drone strike policies have most recently come into question after a wedding procession turned into a funeral. The December 2013 drone strike in Yemen violated the Administration’s own policies to prevent civilian casualties, according to a recent report by Human Rights Watch. A dozen people were killed and many others injured, including the bride. While the government claimed that the strike targeted and killed only militants, Human Rights Watch reported otherwise. This incident begs two questions:

1. What are the Obama Administration’s drone strike regulations?  

2. Are the regulations effective at targeting terrorists and protecting civilians?

Obama cited his administration’s drone policies in a speech last May, stating that strikes are permitted only when there is ‘near certainty’ that no civilians will be hurt. However, the phrase ‘near certainty’ was never officially defined and remains ambiguous. Additional guidelines included the following: ‘near certainty’ of the presence of the enemy; the enemy still poses a threat to the United States; and no possibility of the enemy’s being arrested or captured by different means. According to Human Rights Watch, the U.S. did not meet any of these guidelines in the December Yemeni attack.

Did the U.S. have ‘near certainty’ that the terrorist was among the group in the wedding procession?

The U.S. claimed they did, and that among the members of the targeted group was Yemen’s most-wanted terrorist, Shawqi Ali Ahmed al-Badani; however, the government has not offered any conclusive evidence or video proof that the target was, in fact, present during the attack. The government is not legally required to report the logistics of drone strikes, but this very fact points to a potential flaw in the policies. Without a record, there is no way to demand accountability. Moreover, the government’s claim contradicts statements that Human Rights Watch gathered from witnesses and members at the wedding party, none of whom affirmed the presence of the terrorist or other members of Al-Qaeda.

Was the main target and others involved in the attack a threat to U.S. security? 

Shawqi Ali Ahmed al-Badani is claimed to be an Al-Qaeda affiliate who was involved in the shutdown of around a dozen U.S. diplomatic centers across the Middle East last year. It seems that the target did, in fact, pose a continuing threat to U.S. security. However, the study suggests it is likely that the terrorist was not among the group attacked. Furthermore, Human Rights Watch acknowledged that there was a possibility that some Al-Qaeda associates were among the dead; however, it is unknown whether these people posed imminent threats to U.S. security.

Did the U.S. have ‘near certainty’ that no civilians would be hurt?

The fact that those targeted were part of a wedding makes it hard to believe that the United States was sure no civilians would be killed or injured. Moreover after the attack, Yemeni officials presented money and assault rifles, a traditional gift of apology, to the families of the dead and wounded. The Yemeni officials’ apologetic actions signify that many of those attacked were civilians and were mistakenly targeted. Finally, Human Rights Watch asserted that targeting the whole group to eliminate the terrorist would still not justify an attack by the United States since the attack would involve a disproportionate amount of civilian casualties.

According to the report, the Obama Administrations’ drone strike guidelines were not properly followed. Furthermore, the guidelines are not stringent enough to protect civilian lives, as there is no clear and established meaning of ‘near certainty.’ The phrase leaves much to the interpretation.

As more civilians are killed in the process of targeting terrorists, the United States risks endangering its relationship with countries that are working with them to stop terrorism. The U.S. risks breaching international laws of war due to the amount of civilian casualties. There have been more than 390 drone strikes during the Obama Presidency, and the consequences of these strikes include the deaths of 273 civilians. Lawyers from a British human rights organization have already filed in the ICC for the killing of civilians in a drone strike in Pakistan, which signifies the threat of a violation of international law is real. Not only do drone strikes pose a potential threat to civilian life, but they could also worsen the United States’ diplomatic relations with other countries and its own international reputation.

[Washington Post] [Human Rights Watch] [Bureau of Investigative Journalism] [Truthout] 

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Sarah Shelden (@shelden430)

Featured image courtesy of [doctress neutopia via Flickr]

Sarah Helden

Sarah Helden is a graduate of The George Washington University and a student at the London School of Economics. She was formerly an intern at Law Street Media. Contact Sarah at staff@LawStreetmedia.com.

The post Drone Rules: Are They Enough to Protect Civilians? appeared first on Law Street.

Drones: depending on whom you ask, drones are either the military instruments of the future, or the machines that will incite humanity’s destruction. But no matter how you feel about drones, unmanned aerial vehicles in various forms have been used in combat for years.

The United States may have to answer for their use of drones in the weeks to come. Two United Nations experts by the names of Christof Heyns and Ben Emmerson, have released large UN reports on the overall use of drones. The crux of these reports is a demand for greater transparency from countries who use drones—and for the United States to release more robust data on their use of drones.

According to the United Nations, 33 different drone strikes have been detected that have resulted in the death of civilians. According to the government of Pakistan, since 2004 there have been about 330 drone strikes in the northwest territory of Pakistan. These strikes have supposedly resulted in the deaths of 2200 people, 400 of which have been civilians. Emmerson has stated that in Yemen, up to 58 civilians may have been killed by drones.

In the United States, the CIA is inextricably linked to the use of drones. As a result, much of the information about US drone use is classified.  In his report, Emmerson slams this, stating that it creates, “an almost insurmountable obstacle to transparency.” Emmerson claims that the United States does not accurately self report the civilian casualties caused by drone strikes.

There are serious international law issues tied in with the killing of civilians. International law is a somewhat vague and grey field; although the International Criminal Court, the International Court of Justice, and various tribunals exist, international law still remains a very abstract idea.

At the risk of over-simplifying a very complicated topic, a brief discussion of international law on the topic of civilian killings can be had. This topic falls under the category of International Humanitarian Law, sometimes referred to by its Latin name jus in bello, used to regulate actions during war. The Geneva Convention amendment Protocol I specifically deals with protections afforded to countries involved in international armed conflicts. The Geneva Convention amendment Protocol I does contain protections for civilians, but the United States has not ratified it.

The United Nation’s implications that US actions may violate international law unfortunately fall on mostly deaf ears. The United States is not going to be brought before a tribunal or a court, at best the United Nations can condemn US drone actions, but there really isn’t any action they can take that will show any sort of teeth. The question of the future of drones and their applicability to conflict, will not be answered with these United Nations reports.

[The Guardian]

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Featured image courtesy of [Don McCullough via Flickr]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post The United Nations and Drones appeared first on Law Street.

When is a line more than just a connection between two points? A line, a border, can limit the encroachment of and define a culture, language, religion, and laws. It can also be blurred, changing constantly, like that of India and Pakistan, or Israel and Palestine. When playing jump-rope with those lines, what laws apply?

Making recent global headlines is the story of the White Widow, Samantha Lewthwaite — the British born and raised converted Muslim woman who’s now-dead husband was involved in London’s 7/7 jihad attacks. Although initially condemning her husband’s actions, she seems to have joined his cause. She forged a Somali passport under the name Natalie Webb, and crossed African borders, seamlessly entering Kenya. Now, she is a major suspect in a Nairobi mall bombing, and has been given a Red Notice by INTERPOL. The Red Notice means that the 190 member countries of INTERPOL, an international police organization, are participating in manhunt for her. For her search, other methods Kenya could have taken would have been to reach out to INTERPOL’s close alliance, the United Nation, work in solitude with Kenya’s own national security, or extend for help to independent Kenyan alliances rather than the large coalition, INTERPOL.

From one conservative extremist Muslim, to one liberal extremist, different people with radically different views, are found in similar situations— they are both being sought by authorities. Acclaimed author Salmaan Rushdie, as a result of his unapproved writings about Islam, had a fatwa placed upon him by the Iranian leader, Ayatollah Khomeini, in 1989. A fatwa, unlike the a notice by INTERPOL, is less tied with the government and more with the religion. The fatwa against Salman Rushdie is a religious order commanding the Muslim population worldwide to do an action. In the case of Salman Rushdie, the action was to kill the author.

A more domestic situation that deals with this issue is the anecdote of Edward Snowden. After receiving treason charges in America, Snowden was granted limited asylum in Russia, tarnishing the relationship between the two nations. A stemming problem is the extradition of Edward Snowden. By avoiding America, he was able to avoid his prosecution. Like America, Kenya anxiously awaits the return of the potential criminal, using the Red Notice to catalyze the extradition process.

All of these cases echo the same question about borders that was posed by the Dred Scott Case in 1857: Do the laws of a land no longer extend to you once you step over the line? Is it the responsibility of nations to carry out the jurisdiction of the native ruling county?

[cfr.org] [ Interpol.int]

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Featured image courtesy of [hjl via Flickr]

Vasudha Sadana

The post The Thin Line appeared first on Law Street.