The World Of Female Child Soldiers

A Chance at Equality or a Life of Servitude?

By Katie E. Valder

Katie Valder, a third-year student at Albany Law School, graduated magna cum laude with honors from Le Moyne College. She majored in Criminology and Crime & Justice Studies, with a concentration in International Affairs, and she double minored in Peace & Global Studies and Anthropology. At Albany Law, she is currently the Editor-in-Chief of the Government Law Review, a student editor for the Government Law and Policy Journal, a teaching assistant for the Domestic Violence Prosecution Hybrid Clinic. She has worked as an intern at the New York State Attorney General's Office, the Saratoga District Attorney's Office, the Government Law Center, the Civil Rights and Disabilities Law Clinic, and the Domestic Violence Prosecution Hybrid Clinic. Additionally, Katie served as a teaching assistant for Introduction to Lawyering class, and has been active  in multiple pro bono projects, as well as the Women's Law Caucus.This presentation was created for Prof. Bonventre’s Fall International War & Crime Class.

                      (click to enlarge slides)
It is estimated that over 300,000 child soldiers are currently fighting in conflicts across the world in upwards of 30 countries.

The international community has taken action to stop the use of child soldiers. Among the steps taken are:
the United Nations Convention on the Rights of the Child,
the United Nations Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict,
the Rome Statute of the International Criminal Court,
and the Convention Concerning the Prohibition and Immediate Action for Elimination of the Worst Form of Child Labour by the International Labour Office.

These initiatives, however, lack the narrow tailoring necessary to protecting young girls in armed conflict and fail to provide valid reintegration strategies.

This presentation focuses on the use of child soldiers, specifically female child soldiers, in armed conflicts around the world and uncovers the role these young girls play. For some, joining the conflict is an ability to gain equality to their male counterparts. For others, it means a life of sexual servitude and back-breaking labor.
___________________________
For the entire presentation, open HERE.
(It is then best to Download [by clicking on File] and then Open the downloaded power-point presentation.)

Humanitarian Intervention [presentation]

An Introduction to Legal Force

By Andrea A. Long
Andrea Long, a third-year student at Albany Law School, is the Executive Editor of the Center for Judicial Process. She is a magna cum laude graduate of the Crane School of Music at SUNY Potsdam. Andrea is a Senior Editor on the Albany Law Review, she served as Project Director of the Education Pro Bono Project, and she works year-round as a law clerk in the Office of General Counsel of New York State United Teachers. She was both the winner and Best Oral Advocate of the 2011 Domenick L. Gabrielli Appellate Advocacy Moot Court Competition. For the Fall 2012 semester, Andrea is a legal intern in the law school's Domestic Violence Prosecution Hybrid Clinic.
Andrea prepared this presentation for Professor Bonventre's seminar on International Law of War & Crime, Fall 2012. She has previously been published on ILS. (See Just War: Augustine, Aquinas, & Today, Oct. 28, 2012.)

Humanitarian intervention has become a controversial subject in international law. This presentation begins with a brief overview of humanitarian intervention and situations that often require it. The presentation then describes several different international conflicts with an analysis of the humanitarian intervention that occurred. It ends by suggesting methods for future improvements in humanitarian intervention.

(click to enlarge slides)

_____________________________
For the entire presentation, open HERE.
(It is then best to download the presentation and view it from there.)

Legacy of the Nuremberg Trials

A Pithy Contemplation

By Kristen Boyert
Kristen Boyert is a third year student at Albany Law School pursuing a certificate in International Law.  This past summer, she spent five weeks interning in Abidjan, Côte d’Ivoire researching and compiling a report on human rights issues during the 2011 post- electoral crisis for ONG Transparency Justice.  She serves as a Senior Editor for both International Law Studies and the Center for Judicial Process.
This essay was prepared for Professor Bonventre’s International Law of War and Crime Seminar, Fall 2012.

We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow.  To pass these defendants a poisoned chalice is to put it to our own lips as well.

Justice Robert H. Jackson[1]

It is with the best intentions for repair and reconciliation that the Nuremberg Trials took place. The inception of the tribunal intended to repair the wounds so deeply inflicted upon a ravaged region, as well as aid in the prevention of further atrocities. However, the inherent inception of the Nuremberg Trials is based upon the victors, and as critics argue, the jurisdiction of the tribunal is dubious, among other issues.[2]

It is universally accepted—save for a misguided few—that actions taken by the Nazi government and Nazi officials alike rose above the horrors of war to an apex that “shocked the conscience of all civilized peoples . . . .”[3]  It also goes without saying that individuals should face the consequences of their actions. The tribunal “manifested the practicability of a fair trial of war crimes in an international tribunal . . . [and] [i]t established important precedents for the development of international law concerning the definition of certain crimes . . . .”[4]

Nevertheless, as George A. Finch and Quincy Wright discuss, the tribunal steps onto unsteady ground with this venture and opens itself to criticism.[5]  Both authors describe the notion that no country is without blame.[6]  Each has waged war and defended against it.[7]  Although the Nuremberg Trials stand as a glimmer of hope for good-intentions towards persecuting wrongdoers, it also leaves questions regarding jurisdiction and sentencing.[8]

In Côte d’Ivoire, the losing presidential candidate, Laurent Gbagbo, was released into the custody of the International Criminal Court and is currently awaiting prosecution.[9]Based on my speaking to Ivorian civilians and reading partisan newspapers, it seems that some harbor distrust towards the international court and a general fear regarding a “victor’s justice” mentality.[10]

In their eyes, the international courts, and their progenies of  Nuremberg, stand for “justice for some.”[11]  Those who lose a conflict will face the consequences of justice, while those who win inevitably continue to act with impunity and are guarded by the laurels of victory.  This continues to hinder the reconciliation process and foster continued violence.

Currently, South African Archbishop Desmond Tutu is calling for Tony Blair and George W. Bush to face the consequences of their actions for the Iraq war at the International Criminal Court.[12]  Tutu cites the fictitious justification of weapons of mass destruction in order to invade Iraq.[13]

As Finch discusses, “[w]ar itself is the ultimate legal procedure against disturbers of the international peace, and from time immemorial nations have taken summary action against enemies who have fallen into their hands and who are not punishable according to law.”[14]  Although it is an imperfect system, it is still a system.  Sometimes the threat of consequences will keep people from actions rising to the level witnessed in Nazi occupied territory.

As Sir Thomas More wrote: “What you cannot turn to good, you must at least make as little bad as you can.”[15]  This is the purpose of Nuremberg and its legacy.  Perhaps not to exact perfect justice, but to implement a “justice” nonetheless.

---

[1] Justice Robert H. Jackson, Opening Statement at Nuremberg Trials, (Nov. 21, 1945), available at http://www.pbs.org/wnet/supremecourt/personality/sources_document12.html.

[2] E.g., Kevin R. Chaney, Pitfalls and Imperatives: Applying the Lessons of Nuremberg to the Yugoslav War Crimes Trials, 14 Dick. J. Int'l L. 57 (1995)

[3] George A. Finch, , The Nuremberg Trial and International Law, 41 Am. J. Int’l L. 20, 22 (1947).

[4] Quincy Write, The Law of the Nuremberg Trial,41 Am. J. Int’l L. 38, 42 (1947).

[5] See supra notes 3-4.

[6] Id.

[7] Id.

[8] See Write, supra note 4, at 43 (author states that critics “fall into two classes:” ones who object to the decisions and sentences; and those who view the Tribunal as having no jurisdiction under international law and applying ex post facto law); see also Finch, supra note 3 (author reviews the same criticisms in his article).

[9] World Report 2012: Côte d’Ivoire, Human Rights Watch, available at www.hrw.org/world-report-2012/c-te-d-ivoire (last visited 27 JUL 2012); Country Reports on Human Rights Practices for 2011: Côte d’Ivoire, Bureau of Democracy, Human Rights and Labor, U.S. Department of State, http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186187, available at http://www.state.gov/documents/organization/186399.pdf (last visited 5 SEP 2012);  Ivory Coast pro-Laurent Gbagbo General Dogbo Ble on Trial, BBC.co.UK, Oct. 2, 2012, available at  http://www.bbc.co.uk/news/world-africa-19797488(last visited Oct. 4^th, 2012).

[10] Albany Law School, Boyert ’13 Tackles Judicial Transparency in Cote d’Ivoire, Student Spotlight, available at http://www.albanylaw.edu/students/spotlight/Pages/Boyert-%2713-Tackles-Judicial-Transparency-in-Cote-d%27Ivoire.aspx[author spent five weeks in Abidjan, Cote d’Ivoire during her summer 2012 break to intern with Transparency Justice and wrote a report on human rights violations].

[11] Id.

[12] CNN Wire Staff, Desmond Tutu says Blair, Bush should be 'made to answer' for Iraq, cnn.com, Sep. 3, 2012, available at http://edition.cnn.com/2012/09/02/world/europe/desmond-tutu-oped/index.html?hpt=iaf_c2(last visited Oct. 4, 2012).

[13] Id.

[14] Finch, supra note 3, at 34.

[15] Thomas More, Utopia, Book 1 (1516), available at http://etext.lib.virginia.edu/etcbin/toccer-new2?id=MorUtop.sgm&images=images/modeng&data=/texts/english/modeng/parsed&tag=public&part=all.

NATO’s Operation Unified Protector: France’s Goals Realized

By Chelsea A. Cerutti
Chelsea Cerutti, a 2012 graduate of Albany Law School, was the Managing Editor of the Albany Law Review. She did her undergraduate work at the University of Massachusetts, Amherst. She is currently a Court Attorney at New York’s highest court, the Court of Appeals.
Ms. Ceritti wrote this paper for Professor Harrington’s course on International Organizations, Fall 2011.

Over forty-four years after the French Republic’s withdrawal from the North Atlantic Treaty Organization (“NATO”), the country’s blurred and unclear relationship with the organization became clear as France rejoined the military alliance and established its presence as a military leader.  Over two years after announcing France’s intention to re-integrate into NATO’s military structure, French President Nicolas Sarkozy stepped up to help lead the first NATO operation to reach a conclusion.

The NATO operation, known as Operation Unified Protector, resulted in the end of the persecution of Libyan civilians at the hands of the Qadhafi regime.  Beyond representing a victory over those opposed to “principles of democracy, individual liberty and the rule of law,” the operational success of Unified Protector represents a subtle shift to a more equalized sharing of power between the U.S. and NATO’s European member states.

Such a shift may signify the future of NATO and its members’ security and defense policies; a shift arguably needed for the continued sustainability of the transatlantic alliance.

This paper, NATO’s Operation Unified Protector: France’s Goals Realized as US-European Defense Relations Shift, sets out to discuss France’s role within Operation Unified Protector in light of its recent re-integration into NATO’s military command after decades of participating only as a partial member.  Part II outlines an abbreviated history of the circumstances surrounding France’s partial withdrawal from NATO and the resounding military policy that guided France into the mid-1990s.

Part III discusses France’s “flexible” relationship with NATO’s military command structure during the 90s, while Part IV discusses France’s full re-integration into NATO. Finally, Part V discusses France’s role in NATO’s Operation Unified Protector in Libya, arguing that the mission represents the positive direction in which NATO is heading and ultimately suggests that merely years after rejoining NATO, France is making strides towards achieving its goal of shared European defense responsibility and power.
_____________________________
To read the paper, open HERE.

Introduction to the Just War Tradition

By Michelle K. Mallette

Micky Mallette, a third-year student at Albany Law School, is the student Executive Director of the Center. She is a graduate of the United States Military Academy, where she studied law and systems engineering. Currently, Micky serves as the Executive Editor for State Constitutional Commentary for the Albany Law Review.

Prior to law school, she worked for Procter & Gamble as a Marketing Purchases Manager and Technical Engineer. During law school, she has worked as a legal intern at the Third Judicial Department Town & Village Courts and at the Appellate Division, Third Department, and as a summer associate at Couch White, LLP.

Micky's essay is the third in the series on Just War prepared for the International Law of War & Crime Seminar, Fall 2012.

The just war doctrine is driven by two key principles, jus ad bellum—the criteria necessary to establish just cause in declaring war—and jus in bello—the limitations imposed on a party’s conduct while engaged in the act of war.[1] Together these two principles form the foundation in determining whether a State’s resort to aggression complies with international law.[2]

According to Coverdale there are four conditions that must be met in order to classify a war as just: just cause, lawful authority, proportionality, and necessity (or “last resort”).[3] Much of the discussion surrounding these conditions focuses on just cause due to competing theories involving the legality of preemptive self-defense.[4]

Whereas in medieval times justifications for war included “defense against attack, recovering something wrongfully taken, and punishment of evil,” many modern scholars only recognize self-defense as a legitimate cause for aggression.[5] Consequently, determining what qualifies as just cause in declaring war is a hotly debated topic among just war theorists.[6]
Article 51 of the UN Charter provides an exception to the prohibition on the use of force when responding to “an armed attack.”[7] Thus, scholars advocating for a strict interpretation of this provision—restrictionists—argue that resort to force can never be justified unless a State is reacting to an actual armed attack.[8]

The competing viewpoint argues for acceptance of the right to preemptive self-defense. This proposition holds that a State may anticipate an armed attack when “the necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”[9]

Recently, some States have advocated broadening preemption even further to include attacks aimed at preventing "'rogue' States from acquiring nuclear, biological or chemical weapons of mass destruction."[10]While restrictionists are willing to concede that preemption may be necessary in rare circumstances, they strongly reject and criticize broadening preemption to include preventative measures.[11]

Use of force, they argue, can never be justified on the basis that some form of violence might occur in the distant future.[12]Rather, it is only permissible to initiate armed conflict if force is necessary to repel an imminent attack.[13]International law, however, leaves unanswered what the standards for imminence are.[14]

In the event that resort to armed conflict qualifies as just, there are still limitations on what measures may be taken by a State while engaged in that conflict.[15] Within jus in bello there are two core restrictions that guide the use of force: proportionality and discrimination.[16]

The concept of discrimination prohibits State actors from targeting noncombatants—those not directly participating in hostilities—while proportionality requires a balancing test such that any loss of civilian life or property is not excessive when compared with the anticipated military advantage to be gained.[17]

Similar to the principles of jus ad bellum, divergent theories exist surrounding the restrictions of jus in bello as well. For example, the doctrine of military necessity recognizes that “the imperative of winning the war or the battle may justify attacks on legitimate military targets despite their consequences for civilians and civilian objects.”[18]

One theorist suggests that “supreme emergencies,” such as the occupation of Western Europe by Nazi Germany, encourage States to engage in unjust means to secure victory.[19] But not all scholars agree that military necessity can ever justify “collateral damage” of civilians.[20]

“Moral absolutists treat civilian immunity as a flat prohibition”—the direct targeting of civilians can never be justified, no matter the circumstances.[21] Consequentialists on the other hand, believe that discrimination is only one factor in assessing the justification for conducting war, and as such, directly targeting civilians may be morally appropriate in dire circumstances.[22]

Coverdale contends that these theoretical differences in the just war doctrine are not problematic. The issue is a complex one, requiring “a set of questions to guide us in making prudential judgments,” rather than providing a simplistic formula to follow in assessing the just nature of armed conflict.[23] According to him, the lack of answers is not “a valid criticism of the just war tradition.”[24]

As it stands, however, the estimation of whether a war is “just” is entirely dependent upon which side of the dichotomy a theorist falls. Hence, a war may be considered just and unjust at the same time.[25]

This disparity undercuts the main component of international law— offering guidance and precedent for lawfully engaging in armed conflict.[26] Without clear answers to guide States’ action, unjust wars will continue to be waged in the future.
_____________________________
[1] John F. Coverdale, An Introduction to the Just War Tradition, 16 Pace Int’l L. Rev. 221, 223 (2004).

[2] See id. at 223–24.

[3] Id. at 229.

[4] Id. at 242–48.

[5] Id. at 230–31.

[6] Id. at 229.

[7] Id. at 232–33.

[8] John-Alex Romano, Combating Terrorism and Weapons of Mass Destruction: Reviving the Doctrine of a State of Necessity, 87 Geo. L. J. 1023, 1035 (1999).

[9] Joshua Raines, Osama, Augustine, and Assassination: The Just War Doctrine and Targeted Killings, 12 Transnat’l L. & Contemporary Problems 217, 237–38 (2002).

[10] Coverdale, supra note 1, at 244–45.

[11] Id. at 247.

[12] Id. at 242–43.

[13] Id. at 243.

[14] Id. at 248.

[15] Id. at 260.

[16] Id. at 260–61.

[17] See id. at 261, 268.

[18] Id. at 272.

[19] Id. at 274–75.

[20] Id. at 275.

[21] Id. at 277.

[22] Id.

[23] Id.

[24] Id.

[25] Id. at 276–77.

[26] See Jakob Kellenberger, Sixty Years of the Geneva Conventions: Learning from the Past to Better Face the Future (Aug. 12, 2009), http://www.icrc.org/eng/resources/documents/statement/geneva-conventions-statement-president-120809.htm.

Just War: Augustine, Aquinas, & Today

By Andrea A. Long
Andrea Long, a third-year student at Albany Law School, is the Executive Editor of the Center for Judicial Process. She is a magna cum laude graduate of the Crane School of Music at SUNY Potsdam. Andrea is a Senior Editor on the Albany Law Review, she served as Project Director of the Education Pro Bono Project, and she works year-round as a law clerk in the Office of General Counsel of New York State United Teachers. She was both the winner and Best Oral Advocate of the 2011 Domenick L. Gabrielli Appellate Advocacy Moot Court Competition. For the Fall 2012 semester, Andrea is a legal intern in the law school's Domestic Violence Prosecution Hybrid Clinic.
Andrea's essay is the second in the series on Just War prepared for the International Law of War & Crime Seminar, Fall 2012.


Just war is a concept that has been widely debated and philosophized for as long as there has been war. It offers a moderate view of war that is appealing: the concept that in certain circumstances, war is justified without being morally wrong.

Just war encompasses two separate prongs. The first is jus ad bellum, or the right to go to war, and the second is jus in bello, or proper conduct within war.[1] Both prongs must be met in order to consider a war just.

The right to go to war is typically thought to mean war waged in self-defense, or sometimes in defense of another nation. Conduct within war also must be proper in order for the war to be considered just. Proper conduct could mean a proportional response or fair treatment of prisoners of war.

Two philosophers in particular, Augustine and Aquinas, are known for their contributions to just war theory.  Augustine was heavily influenced by his Christian beliefs and the religious beliefs of society in general.[2] His notions of what just war meant to people and Christians were radical for his time period. However, Augustine himself saw the just war concept as an extension of Christian beliefs, rather than a philosophy that diverged from them.

Augustine suggested that in order to preserve justice along with peace, war was sometimes necessary and therefore morally justified.[3] To him, if a wrongdoing was being committed in a time of peace, that conduct was not justice, and it was not morally proper to simply ignore the bad conduct in the name of keeping the peace.

Human nature plays an integral part in Augustine’s just war theory. He believed that our sense of justice is derived from our humanity and inherent flaws. “Love thy neighbor” had a meaning far beyond the superficial to Augustine, where if one person was aware of a systematic oppression suffered by his neighbor, it was his moral duty to intervene and to use violence, if necessary, to end it.[4]

While on an individual scale this model falls apart, when applied to society as a whole it becomes clear that lawless violence is sometimes necessary and the morally responsible means to an end of injustice. Human nature and dignity go beyond a Christian or just war ideology, and according to Augustine this human dignity is important to understanding war of any kind, but just war especially.[5]

In light of events that took place long after Augustine’s time, his just war ideology still seems to apply in our world today. A major example is the Holocaust.

When Hitler began invading countries during times of “peace,” committing mass genocides, and promoting his racist and bigoted ideal world, world leaders were reluctant to step in and get involved, particularly those who felt they were far enough removed from the situation as to not be involved in it at all. Eventually, many countries did step in and World War II occurred before order was somewhat restored.

Had decision makers followed Augustine’s just war theory, they would have stepped in immediately when the injustices began. Fighting those injustices with violence would have provided for the greater good and, for that reason, been moral. Instead, by the time other nations were involved, things had progressed to the point where war on an enormous scale was necessary in order to end the wrongdoing.

Aquinas lived about nine hundred years later than Augustine. But he embraced similar principles of just war, also influenced by his Christianity. Aquinas’ philosophies of just war were no doubt also influenced by the chaotic medieval time period he lived in.

He approached just war from a viewpoint similar to Augustine. He believed there were certain moral justifications for violence. He also formed a narrower standard for what type of situation could conceivably lead to a justified war.

According to Aquinas, for war to be just, three conditions must be met.[6] First, war must occur for a good and just case, not self-gain or motivated by a desire for power.[7] Second, a just war should be declared by a governing body with the power to do so, such as a sovereign state.[8] Third, even upon entering a war, for war to be just the motive must ultimately be attaining peace.[9]

When these factors are applied, the war is ethically just. By only declaring war when there is just cause, order will be restored and the ultimate result will be morally sound. When the motive is pure then there are not other selfish rewards to be reaped. The just war theory thus concentrates on appropriate motives rather than vindictiveness, power or spite.

Requiring a governing body to actually declare war ensures that individuals follow the system in place. That rather than taking matters into their own hands, which could be for selfish reasons instead of for the overall good. Furthermore, giving the governing body the power to declare war provides an element of control and a chance for discussion over the decision to engage in battle.

Finally, where the ultimate motive is attaining peace, moral good will be advanced and the war won’t expand and lose sight of the original wrongdoing being addressed.  Fighting for peace instead of fighting to fight is the core of just war theory.

The just war concept strikes a balance between war without moral implications and complete pacifism. It recognizes the need for war in certain circumstances, and even commands war when morals would be best served by stopping wrongdoing despite the need to use violence. It is, therefore, a theory that is as appealing and applicable to our society today as it was when philosophers first discussed just war.
_____________________________
[1] John F. Coverdale, An Introduction to the Just War Tradition, 16 Pace Int'l L. Rev. 221, 223 (2004).
[2] Jean Bethke Elshtain, The Just War Theory and Natural Law: A Discussion, 28 Fordham Int'l L.J. 742, 745-46 (2005).
[3] Id.
[4] Id. at 751-52.
[5] Id. at 751.
[6] Joseph C. Sweeney, The Just War Ethic in International Law, 27 Fordham Int'l L.J. 1865, 1869-71 (2004).
[7] Id.
[8] Id.
[9] Id.

Essays on Just War

This post introduces a collection of short essays on the concept of just war--jus ad bellum and jus in bello. They were prepared by students in the International Law of War and Crime Seminar at Albany Law School, Fall Semester 2012.

The Just War Philosophy
By Patrick M. Domery
Patrick Domery, a third-year law student at Albany Law School, graduated from Boston University where he majored in philosophy. He is an Associate Editor of the Albany Law Review. Read the Essay.

Just War: Augustine, Aquinas, & Today

By Andrea A. Long

Andrea Long, a third-year student at Albany Law School, is the Executive Editor of the Center for Judicial Process and an Associate Editor of the Albany Law Review. She is a graduate of the Crane School of Music at SUNY Potsdam. (Her essay will appear in the next post.) Read the Essay

Introduction to the Just War Tradition
By Michelle K. Mallette
Micky Mallette, a third-year student at Albany Law School, is the Executive Director of the Center for Judicial Process and the Albany Law Review's Executive Editor for State Constitutional Commentary. She is a graduate of the United States Military Academy. (Her essay will appear in the following post.) Read the Essay

The Just War Philosophy

By Patrick M. Domery
Patrick Domery is a third-year law student at Albany Law School.  Writing about philosophy was a return to old habits for Patrick, who graduated from Boston University in 2009, where he majored in philosophy and mass communications with a concentration in advertising.  Patrick currently works for the New York State Education Department, and is an Associate Editor of the Albany Law Review.  
Patrick's essay is the first in a series on Just War prepared for the International Law of War & Crime Seminar, Fall 2012.


As a philosophical matter, the concept of “just war” is one possible framework for answering a simple question. Any inquiry into just war boils down to the essential question of ethics: What ought we do? In more nuanced terms, just war theorists seek to define the boundaries of when war should be waged, and by what means.[1] Just war discussions have been taken up by a who's-who of classical ethicists such as Aristotle, Cicero,[2] Augustine, and Aquinas.[3] The discussion continues today in the realm of law and international relations.

As one more recent philosophy writer puts it, “War is a brutal and ugly enterprise. Yet it remains central to human history and social change. These two facts together might seem paradoxical and inexplicable, or they might reveal deeply disturbing facets of the human character.”[4] As such, war has proven to be fertile ground for philosophers and legal scholars who seek to rationalize, justify and explain this apparent contradiction.

From this philosophical urge, three major theories have developed: Realism, passivism, and just war theory.[5] The easiest way, it seems, to explain just war theory is to set it apart from the former two theories.


Realists are skeptical of morality's role in international relations, whereas many just war theorists allow morality to play a role in the commencement and means of war.[6] Passivism refers to, in general, a staunch opposition to the “specific kind and degree of violence that war involves.”[7] Passivism can be based on moral objections, or even secular rationales such as utility or humanist conceptions of “wrongness.”[8]

Most pacifists, then, would find “just war” to be an oxymoron built on a supremely faulty assumption. Realists too would find fault with the assumptions of just war, specifically that justice plays a role in the conduct of war at all.[9] Because of its complexity and nuance, just war theory “occupies an especially large and influential space within the discourse.”[10]

Just war theory can be properly framed as a hybrid that accepts the assumption that wars actually can be just, yet allows for (and often depends on) morality in making such judgments.[11] As a result, just war theorists find themselves opposed on both sides for those same assumptions.[12] At this point, with respect to war, the “what ought we do?” question receives an unsatisfying answer: “war ought be conducted justly.” In unpacking that answer, just war theorists tend to disagree, often with shades of pacifism and realism underlying their arguments.

For purposes of background, it is important to note that just war theory is generally composed of three components: Jus ad bellum (the decision to conduct war), Jus in bello (conduct during the war), and Jus post bellum (conduct in ending the war).[13]

The criteria for jus ad bellum include just cause, right authority, right intentions, a reasonable belief in success, and war as a last resort.[14] While these criteria are generally accepted by just war theorists, the question of how to define these concepts not as easily answered. Just war theorists often look to pacifism and realism to fill in those gaps.

The Augustinian conception of just war, recently discussed by Jean Bethke Elshtain, is grounded on Augustine's theory of a naturalistic morality.[15] That is, a moral code embedded in human nature. Within the natural morality, Augustine places concepts such as justice and charity.

As applied to war, Elshain writes, “just war, then, is driven by a call to justice that is embedded in an account of our nature, created and fallen. The aim is to repair that which has been torn asunder by prior violence and to protect a community for which one has responsibility.”[16]

Naturally, appeals to Christianity as a basis for morality is unappealing to secularists and non-Christians, but Elshtain argues that Augustine's Christian ethics have in fact been integrated into international laws and treaties, which perhaps mitigates the problematic connotations of religious ethics as a background for international policy.[17] Furthermore, Elshtain argues that these principals, though Christian in origin, are equally applicable to secular justice.[18]

A more secular view of just war theory, discussed by Joseph Sweeney, takes the normative position that wars conducted in accordance with agreed-upon rules are just.[19] That is, a just war is a war that follows the Charter of the United Nations and other international treaties.[20] Sweeney traces his argument through history, beginning with Thomas Aquinas' view that just wars are fought for just causes.[21]

As time passed, Sweeney points out that formal declarations of war became an early international relations tool for ensuring that wars are conducted for just cause.[22] In the early 20th century, peace treaties began to incorporate the declaration requirement as a way of applying laws to combatants and non-combatants alike.[23] But, after World War II, the need for formal declaration became as outmoded as the medieval philosophers' ideas.[24]

To that end, Sweeney suggests that the United Nations has become the body that decides when war is just.[25] He states unequivocally that the criteria of just war in the 21st century are the “use of force as directed by the [United Nations] Security Council – or use of military force in self defense against an armed attack.”[26] Therefore, the jus ad bellum and just in bello are solely dictated by the international agreements of the United Nations.

If Sweeney's view is a more realist interpretation of just war theory, that laws are more important than morality in determining justice in war, than a passivist counterpart would say that the only allowable justification of war is self-defense. John Coverdale argues that just cause has been supplanted, and self-defense is the only acceptable criteria for war.[27] However, Coverdale concludes that there is no universal answer to whether a given war is just or unjust.[28]

As has been shown, just war theory occupies a middle space between realism and passivism, both intertwined with and opposed to those two theories. Just war theorists, influenced largely by classical and medieval philosophers, agree on certain established criteria of just war, but the definitions of those criteria are subject to interpretation.

In their attempts to elucidate what constitutes what exactly a just war is, theorists tend to branch off towards passivism and realism. The main contention is the role morality plays in assessing just wars, which just war theorists must account for by either incorporating morality or bracketing it altogether.

_____________________________
[1] John F. Coverdale, An Introduction to the Just War Tradition, 16 Pace Int'l L. Rev. 221, 223 (2004).

[2] Brian Orend, War, The Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2008), available at http://plato.stanford.edu/archives/fall2008/entries/war/ (describing Cicero and Aristotle as founders of the just war tradition).

[3] Coverdale, supra note 1, at 225—6.

[4] Orend, supra note 2.

[5] Id.

[6] Coverdale, supra note 1, at 223.

[7] Orend, supra note 2.

[8] Id.

[9] Coverdale, supra note 1, at 223.

[10] Orend, supra note 2.

[11] Coverdale, supra note 1, at 223.

[12] Id.

[13] Orend, supra note 2.

[14] Jean Bethke Elshtain, The Just War Tradition and Natural Law, 28 Fordham Int'l L.J. 742, 751 (2005).

[15] Id. at 745.

[16] Id. at 751.

[17] Id. at 753.

[18] Id. (describing Hugo Grotius as essential in transitioning from a theological to a normative basis to just war theory).

[19] Joseph C. Sweeney, The Just War Ethic in International Law, 27 Fordham Int'l L.J. 1865 (2004).

[20] Id. at 1878.

[21] Id. at 1869.

[22] Id. at 1874.

[23] Id. at 1876.

[24] Id.

[25] Id. at 1877—8.

[26] Id. at 1878.

[27] Coverdale, supra note 1, at 233—6.

[28] Id. at 277.

Serving the Best Interest of the Child

Equality in International Adoption

By John Voyle Hodge
John Hodge graduated from Albany Law School cum laude in 2012 with a concentration in Intellectual Property and completed his undergraduate studies at Nebraska Wesleyan University majoring in Chemistry and minoring in Biology and Physics.  While at Albany Law he interned as a Law Clerk for the New York State Bar Association, and held the positions of Lead Articles Editor for the Albany Law Journal of Science and Technology, Treasurer of the Intellectual Property Society, and Vice President of the Softball Club.
This paper was prepared for Prof. Alexandra Harrington's course in International Child Rights, Spring 2012.


A common thread connecting much of international human rights law is the protection of those who cannot protect themselves. Among those most in need of protection are children.

International agreements, such as the Convention on the Rights of the Child and the Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption, address the fact that children cannot protect themselves and that a child’s best chance for productive development is to be part of strong family unit. In other words, children who are orphaned or otherwise uncared for are at a significant disadvantage.

The need to increase placement of these children into stable family homes is self-evident.This paper addresses the international problem of helpless children left homeless.

The paper argues that the international community should encourage increased adoption as a positive solution for the many children who are otherwise without a family environment. This paper also addresses the need to openly allow same-sex couples the right to participate in the international adoption process as part of the effort to increase the number of children being placed in family environments.
_____________________________
To read the paper, open HERE.

Rape in War [the paper]

By Julia Steciuk
Julia Steciuk prepared this paper for the International Law of War and Crime Seminar, summer 2012, in conjunction with the associated presentation which was previously published on ILS.
As noted then, Julia Steciuk, a second year student at Albany Law School, studied English as an undergraduate at Siena College. During her first year at Albany Law, Julia became Co-Director of Albany Law’s Animal Pro Bono Project, as well as President of the school’s Animal Legal Defense Fund chapter. Julia is a Research Assistant for Professor Vincent M. Bonventre, as well as an Associate Editor for the Center for Judicial Process. She spent her summer interning with the Albany County District Attorney’s Office.

Where there is war there is rape. Throughout history, rape has been used as a tool for a variety of purposes during war. However, it was not until after World War II that rape within the context of war gained the attention of the international legal community and when developments began to be made towards improving the abilities of prosecutors to charge and try rape offenders in the context of war.

Part I of this paper discusses the prosecution of rape in war within the context of the Nuremburg and Tokyo Trials. Part II examines developments in international law towards an increased recognition for victims of rape during such national trials. Parts III and IV discuss how these improvements have been implemented during the Tribunal for the Former Yugoslavia and the Tribunal for Rwanda, while also examining drawbacks that occurred for the prosecution of rape. Part V discusses further developments and limitations in prosecution of rape in war and Part VI concludes this work.
_____________________________
To read the paper, open HERE.

Rape in War [presentation]

By Julia Steciuk
Julia Steciuk, a second year student at Albany Law School, studied English as an undergraduate at Siena College. During her first year at Albany Law, Julia became Co-Director of Albany Law’s Animal Pro Bono Project, as well as President of the school’s Animal Legal Defense Fund chapter. Julia is a Research Assistant for Professor Vincent M. Bonventre, as well as an Associate Editor for the Center for Judicial Process. She spent her summer interning with the Albany County District Attorney’s Office.
She prepared this presentation for the International Law of War and Crime Seminar, summer 2012. (Her associated paper is forthcoming on ILS.)

(click to enlarge on all slides)

 

 

_____________________________

For the entire presentation, open HERE.
(It is then best to download the presentation and view it from there.)

Import Sanctions in Reaction to Currency Manipulation

Are They Necessary and Legal to Cure Resulting Trade Imbalances

By Scott Smith
Scott Smith is an advocate for free market economics, both nationally and globally. He studied Economics at Hillsdale College, and studying the legal framework that inspires economic growth was a passion of his while studying at Albany Law from where he graduated in the Spring of 2012. In his graduating year, Scott received the barrister award for trial and appellate advocacy.

China’s trade policy is hurting the United States and the world. Trading with China costs the U.S. three times more than the benefit, including 2.8 million American jobs.

China’s devalued currency serves to protect its domestic production, while simultaneously granting an unfair advantage to its exported goods in the global marketplace. Other Asiatic countries as well as Brazil, Russia and India have implemented similar currency policies to be competitive with Chinese exports. As a result, significant trade imbalances have fueled a global financial bubble. The international financial organizations, namely the WTO and IMF, which regulate unfair and damaging trade practices, have so far proven ineffective to cure the problem.

China’s actions have effectively created a global anti-stimulus. The anti-stimulus has come in the form of a liquidity gap. China’s currency policy injures the major global economy because the prominent countries are caught in a liquidity gap—they are depressed but unable to generate recovery because the relevant interest rates are already at zero. This liquidity gap has especially affected the Federal Reserve and policy makers as they scramble to boost the economy and cure the U.S. unemployment problem.

The U.S. government has taken a domestic multilateral approach to aiding U.S. economic recovery, including action by the Federal Reserve and proposed legislation known as the American Jobs Act. Among other things, proposed legislation H.R. 2378 would allow a tariff to be placed on imported goods from countries with an undervalued, manipulated currency.*
_____________________________
* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

U.N. Recognition of Palestinian Statehood and Children

The Potential Impact on Their Welfare

By Nadia I. Arginteanu
Nadia Arginteanu, a third year student at Albany Law School, is Editor-in-Chief of the Albany Law Journal of Science & Technology. She is a graduate of Bard College where she majored in political science. She will graduate from Albany Law School in May 2013 with a concentration in International Law.
This paper was prepared for Professor Harrington's course, International Child Rights, Spring 2012.
  
Undoubtedly, one of the most difficult issues that the international community has had to deal with is the question of Palestine. The Arab-Israel conflict over Palestine is nearly intractable and has been a major point of debate and contention for decades.

The military and political conflict that has taken hold of the region has caused a great deal of suffering for the children living in the Occupied Palestinian Territories (“OPT”) comprised of the West Bank and the Gaza Strip. Children in these regions are not only hurt by the violence of warfare, but due to the political turmoil of the region are often denied the fundamental rights that the international community has recognized all children should be afforded, such as education and healthcare.

Though the political status of Palestine has been at a standstill for many years, recently, steps have been made by the current political leadership of Palestine, the Palestinian Authority, to change Palestine’s status both in the United Nations and in the international community as a whole. For example, in October 2011 the United Nations Educational, Scientific, and Cultural Organization (“UNESCO”) recognized Palestine as a full member state. Recognition of Palestine by UNESCO was controversial, but not as controversial as the recent bid on September 23, 2011 by the Palestinian Authority to gain full membership in the United Nations during the 2011 session of the United Nations General Assembly.

This paper will argue that if the United Nations were to recognize Palestinian statehood and admit it as a full member state, or at the very least elevate Palestine to the status of a non-member state observer, either of these changes would have a positive impact on the lives of Palestinian children. Changing the political status of Palestine would change the status of Palestinian children, affording these children increased rights and protections under international law.*
_____________________________
* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.