An Imperial Security Council? Implementing Security Council Resolutions 1373 and 1390

The UN Security Council has taken important steps against terrorism since the attacks of September 11, 2001. Some of those steps build on previous Security Council counterterrorism efforts; others represent significant innovations. I will focus in particular on Resolution 1373, which the Council adopted on September 28, 2001, and on Resolution 1390, adopted four months later in January 2002

Rethinking War Powers: Congress, The President, and the United Nations

The division of war powers between Congress and the President has never been free of ambiguity or tension. The Constitution grants Congress the power to declare war, to raise and support armies, to provide and maintain a navy, and to make rules for the regulation of those armed forces. The President, on the other hand, is the Commander in Chief of U.S. armed forces. Most scholars agree that the framers sought to strike a balance: the President alone could not commence war, but he could use force to repel sudden attacks on the United States or its armed forces. Reacting against the unilateral power of kings to go to war without the consent of the people, the framers desired a democratic check on the power of the President to initiate armed conflict. Disagreement rages, however, over what the sparse words of the Constitution should mean today, when wars are hardly ever declared in advance, U.S. forces are stationed on foreign soil on a semipermanent basis, and the country\u27s security interests are intertwined with those of other states in an increasingly interdependent international system

Post-Conflict Rule of Law Building: The Need for a Multi-Layered, Synergistic Approach

In recent years, considerable blood, sweat, and treasure have been devoted to building the rule of law in the wake of armed conflicts and military interventions in many parts of the world. From Afghanistan to Iraq, Kosovo to East Timor, and Sierra Leone to Haiti and elsewhere, international interveners and local leaders have struggled to address both security and humanitarian challenges in societies seeking to overcome a legacy of violent conflic

New Paradigms for the Jus ad Bellum?

I am delighted to be here today to honor Ed Cummings, a wonderful colleague and a source of great wisdom for so many of us. I first worked with Ed in the Legal Adviser\u27s Office in the late 1980s. More than fifteen years later, Ed is still the person I turn to for insight on the most difficult issues in the law of armed conflict. Most memorably of all, while serving at the National Security Council in 1999, I worked closely with Ed in achieving an important treaty milestone: the Procotol restricting the use of child soldiers in armed conflict (the Child Soldier Protocol). Ed was the person who first saw the potential for a diplomatic compromise that became the essence of the treaty: namely, allowing voluntary recruitment of seventeen year olds into national armed forces (an important equity for the United States) but barring their deployment into active participation in hostilities prior to the age of eighteen. This compromise allowed for an international agreement that put the spotlight where it ought to be-on prohibiting the forced recruitment and deployment of underage kids-while also setting a clear age-eighteen standard for participation in hostilities. Ed\u27s efforts over many years to achieve this result illustrate several characteristics of his work as a lawyer that I admire most: his savvy understanding of how legal rules work in complex and difficult circumstances; his appreciation for how sensible legal frameworks can safeguard U.S. security interests and advance U.S. values (such as humanity in warfare) in a dangerous world; and his diplomatic skill in finding reasonable common ground that protects U.S. equities while taking into account the perspectives and legitimate concerns of others. These virtues (practical savvy, appreciation of the value of sensible legal rules, and a capacity to find reasonable common ground) are just what we need today for thinking through the current challenges to the jus ad bellum-the legal framework governing the resort to force

The North Atlantic Treaty and European Security After the Cold War

The recent dramatic events in Europe, notably the reunification of Germany, the collapse of Communist rule in Eastern Europe and the Soviet Union, the start of Soviet troop withdrawals, and the demise of the Warsaw Pact, represent an historic political triumph for the countries of the North Atlantic Alliance. At the same time, these developments have called into question the Alliance\u27s continued relevance in a radically new environment

Understanding Constitutional War Powers Today: Why Methodology Matters

With the Cold War over, Americans have grown more introspective about the role of the United States in global affairs. It could hardly be otherwise. America\u27s rise to military preeminence, its overseas commitments and priorities, and its basic sense of international purpose all were forged by circumstances of the past fifty years that have changed dramatically. The Soviet threat is gone; once shaky allies in Europe and Asia are now comparatively stable and prosperous; the specter of cataclysmic nuclear war has receded while regional conflicts, ethnic strife, and humanitarian emergencies have moved to center stage. Although the world is no less violent than it was before, the American public feels comparatively more secure. That fact alone has led many Americans to reassess what the international posture of the United States ought to be and what sacrifices they are prepared to make to advance American interests and values abroad. Moreover, in the absence of an overarching Soviet threat, the commitment of U.S. armed forces overseas has become a more divisive issue domestically, and the question of Congress\u27s constitutional role in such decisions has taken on new significance

Collective Force and Constitutional Responsibility: War Powers in the Post-Cold War Era

The end of the Cold War has inaugurated a new era in international politics. The familiar terrain of the last half century has given way to a world that is, in many ways, more complex and turbulent. Regional conflicts, civil wars, ethnic strife, genocide, and humanitarian emergencies have exploded across the globe. As crises such as those in Bosnia, Somalia, and Haiti have unfolded, the international community increasingly has looked to the United States-as the last remaining superpower- to provide leadership and resources in a broad array of conflict situations

Justice on the Ground: Can International Criminal Courts Strengthen Domestic Rule of Law in Post-Conflict Societies?

The author examines how developments in international criminal law – including creation of the International Criminal Court and various hybrid tribunals – can have an impact on rule-of-law building efforts in post-conflict societies. Although trials of atrocity perpetrators primarily and appropriately focus on fairly trying the accused individuals, these processes also have a wider impact on public perceptions of justice and potentially can influence a society’s ability to embrace rule of law norms. The quality of outreach and capacity-building accompanying these trials may well have a decisive effect on whether these proceedings, on balance, strengthen or undermine public confidence in justice and justice institutions in societies recovering from atrocities. This piece stresses the need to supplement international and hybrid criminal trials with more meaningful outreach to the affected populations, and with more systematic domestic capacity-building and empowerment aimed at both formal justice systems and civil society