Concluding Rejoinder: The Art of International Law and Altruism of International Lawyers

In the introductory essay, I sought to apply The Art of Law in the International Community as a response not only to military force and other ills but to the COVID-19 pandemic. Four colleagues have contributed on how they believe the book works and could work better. They have done so at a time of extraordinary challenge and in a spirit of generosity toward the goal we all seek, the flourishing of the created world

Occupation Failures and the Legality of Armed Conflict: The Case of Iraqi Cultural Property

US Secretary of Defense Donald Rumsfeld dismissed the looting of the Iraqi National Museum in April 2003 by remarking, “stuff happens.” In doing so, he gave an early indication that in planning to invade Iraq, the Bush Administration failed to take seriously the legal obligations of an occupying power. Occupying powers have a variety of binding legal obligations, including obligations to stop looting, protect cultural property, and protect persons in detention. Yet, the Administration sent a wholly inadequate force to fulfill those obligations, and, more seriously, the force received no direct and imperative orders to do so. As a result, in addition to the questionable basis for initiating war the war in the first place, the Administration conducted it in a way that amounts to an independent ground for concluding the decision to invade Iraq on March 19, 2003, violated international law. This article focuses on the Administration’s failure to protect Iraqi cultural property as one clear example of the Administration’s disregard for its obligations. The article discusses cultural property and the long, continuous development of legal principles, through treaties and rules of customary international law for the protection of cultural property in wartime—developments in which the United States has played a leading role. On the eve of the Iraq invasion, no US leader could have been in doubt about the legal requirements to stop looting and protect cultural property. Yet, we find little evidence of any preparation to do so. The article analyzes the literature on Iraqi war planning to understand why this lapse occurred. It further analyzes the consequences of this failures, including: the possibility that individuals will be held accountable; the high cost to the US associated with the war, and Iraq’s right to claim reparations, including in-kind reparations from US holdings of Iraqi cultural property

The Choice of Law Against Terrorism

The Obama administration has continued to apply the wartime paradigm first developed by the Bush administration after 9/11 to respond to terrorism. In cases of trials before military commissions, indefinite detention, and targeted killing, the U.S. has continued to claim wartime privileges even with respect to persons and situations far from any battlefield. This article argues that both administrations have made a basic error in the choice of law. Wartime privileges may be claimed when armed conflict conditions prevail as defined by international law. These privileges are not triggered by declarations or policy preferences

To Kill or Capture Suspects in the Global War on Terror

Presents a speech by law professor Mary Ellen O\u27Connell, delivered at the Case Western Reserve School of Law\u27s War Crimes Research Symposium, February 28, 2003. Legal implications of pursuing terror suspects using military action by the U.S. government; Components of armed conflict; Analysis of the United States\u27 involvement in the internal armed conflict in the Philippines

To Kill or Capture Suspects in the Global War on Terror

Presents a speech by law professor Mary Ellen O\u27Connell, delivered at the Case Western Reserve School of Law\u27s War Crimes Research Symposium, February 28, 2003. Legal implications of pursuing terror suspects using military action by the U.S. government; Components of armed conflict; Analysis of the United States\u27 involvement in the internal armed conflict in the Philippines

Adhering to Law and Values Against Terrorism

The thesis of this article was inspired by the remarks of John 0. Brennan, Assistant to the President for Homeland Security and Counterterrorism, at Harvard Law School on September 16, 2011. Brennan said: “I\u27ve developed a profound appreciation for the role that our values, especially the rule of law, play in keeping our country safe. It\u27s an appreciation, of course, understood by President Obama.... That is what I want to talk about this evening—how we have strengthened, and continue to strengthen, our national security by adhering to our values and our laws.” Brennan\u27s position is backed up by considerable data and analysis from counter-terrorism experts. If the United States adheres to its values and the rule of law, security can be enhanced. He went on in the remainder of his talk to attempt to defend the U.S. record of compliance with American values and the rule of law. That record is poor; however, with respect to a number of fundamental principles U.S. officials claim to be in compliance with the law are too often referring to compliance with a mistaken, false, or distorted version of the relevant rules. The remainder of this article aims at demonstrating the claim of poor U.S. compliance with the rule of law and the fundamental values the law seeks to implement in the counterterrorism context. The first evidence of poor compliance to be offered consists of a set of recommendations made to the Obama transition team in 2008. The recommendations were a set of priorities to get the United States into compliance with important international law obligations. To date, only one of the eight has been fully implemented-the principle aimed at ending the use of torture. The arguably more important recommendation, to end the so-called global war on terrorism has not been implemented. After reviewing what should have been done by the Obama administration, the article will move on to indicate what has been done, focusing on the use of the global war assertion to justify the targeted killing of persons outside armed conflict zones. The final part of the article will consider in some detail why the claim Brennan made at Harvard that the administration is complying with the rule of law in its counter-terrorism policy is inaccurate