Hostile Protected Persons or Extra-Conventional Persons: How Unlawful Combatants in the War on Terrorism Posed Extraordinary Challenges for Military Attorneys and Commanders

First, this Article reviews policymakers\u27 and commentators\u27 categorization of participants in Operation Enduring Freedom, the armed conflict in Afghanistan against al Qaeda and Taliban fighters. This Article concentrate specifically on the status of participants operating at the fringes of the categories of persons protected by the Geneva Conventions. It shows, for example, how al Qaeda and the Taliban fighters tested the bounds of the Conventions by employing methods of “warfare” which rendered them non-distinct and therefore made a determination of their status unclear. This Article demonstrates how policymakers and ultimately the U.S. President created a class of persons--so-called extra-conventional persons--who participated in hostilities yet failed to qualify for protection under any of the applicable Geneva Conventions. Second, this Article presents the training and education available to the judge advocates who faced these legal issues. it further presents perspectives on the law of war as it appeared from the resources, education, and training commonly available to deployed judge advocates. This Article ultimately concludes that international law and U.S. military doctrine classify many who participate in hostilities as “protected persons” under the Fourth Geneva Convention--a concept ultimately at odds with the determination made by U.S. policymakers.Third, and in concert with the two issues identified above, this Article describes the enormous challenges these issues created for U.S. military persons participating in Operation Iraqi Freedom. Specifically, it illustrates operational and legal challenges faced by military attorneys and the commanders they advised. It then explores legal issues that arose during the detention and occupation operations with respect to fighters associated with Saddam Fedayeen. Observing apparent similarities between Saddam Fedayeen and Taliban fighters earlier categorized as extra-conventional, this Article describes how, despite similarities in applicable law and attributes, judge advocates determined that these irregular fighters were protected persons under the Fourth Geneva Convention. It concludes that judge advocates dealt with these challenges responsibly, providing sound legal advice that balanced commanders\u27 mission requirements with the humanitarian spirit of the law of war

The "empty shell" approach: the setup process of international administrations in Timor-Leste and Kosovo, its consequences and lessons

State-building under the aegis of international administrations has faced various hurdles and obstacles in Kosovo and Timor-Leste — failures that came to full light in March 2004 in Kosovo and in May 2006 in Timor-Leste. However, the international conception buttressing the set up of international administrations — I dub it the "empty-shell" approach — is still present in certain policy circles. This article aims to analyze this international conception by clarifying how the UN came to impose its authority over the two territories in a very similar process. While the literature on each state-building experiment is vast and com- pelling, few authors have attempted to contrast the two case studies, especially regarding the mental conception informing the governance process of these territories since 1999. This article links the empty-shell approach with the delegitimization process that came to be experi- enced by the UN in both cases. The article describes the international policies put in place by the UN to expand its control over the two terri- tories, a mix of co-option of local elites and the marginalization of the local population. Finally, the article reveals some possible solutions in order to avoid the more blatant difficulties pertaining to state-building conducted from the outside-in

EU Policies in the Democratic Republic of Congo: Try and Fail?

This paper argues that even though EU policies in the DRC integrated different components of human security – namely human rights protection, the restoration of law and order, and effective multilateralism – in practice these policies have had mixed success in realizing the objective of human security. This can be explained by three main reasons: (i) EU policies are based on a number of premises about how peace and human security can best be achieved, but these premises are overly simplistic, and in most cases tend to overlook or are disconnected from complexities on the ground; (ii) since the end of the transition in 2006, the EU saw its influence as dominant diplomatic and conflict management actor gradually weakening, and has focused on its role as a development actor, with a specific focus on the implementation of technical projects rather than on the development of a strategic policy on the DRC; and (iii) there is a general lack of political will from Congolese state authorities to engage with donor strategies and to support initiatives that promote a genuine national reform

Watching the Watchers: Enemy Combatants in the Internment Shadow

In the past, the government has avoided accountability for the atrocity of allowing the internment of Japanese Americans during WWII. Kang examines whether the federal judiciary is again shying away from its responsibilities of holding the other branches accountable for their actions as they conduct their war on terror

Beyond Goldwater-Nichols

This report culminated almost two years of effort at CSIS, which began by developing an approach for both revisiting the Goldwater-Nichols Department of Defense Reorganization Act of 1986 and for addressing issues that were beyond the scope of that landmark legislation