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Constitutional Options for Bahrain

by Chibli Mallat & Jason Gelbort

A Warm Welcome to VJIL Online

by Dean Paul G. Mahoney

The Bribery Act's New Approach to Corporate Hospitality

by R. Zachary Torres-Fowler & Kenneth Anderson

The Small Steps of the SPEECH Act

by Bruce Brown & Clarissa Pintado

Time for the United States to Directly Participate

by J. Jeremy Marsh & Scott L. Glabe

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VJIL Digest

The International Legal Prohibition on Perfidy and Its Scope in Non-International Armed Conflicts

by Robert Lawton Pratt ~ Feb 18, 2016

Since the beginning of its conflict with al Qaeda, the United States has faced an enemy that relies on its ability to blend into the civilian population to mount attacks and sustain its war-fighting efforts. Disguised as civilians, members of the group have gained proximity to valuable targets and conducted deadly attacks they could not have achieved if they wore their terrorist affiliations openly. In Iraq, Afghanistan, and elsewhere, other terrorist and insurgent groups also rely on similar tactics to inflict maximum damage. Suicide bombers use civilian objects to attack civilian targets, including markets, mosques, and other public places. Combatants hide amongst the local population, cloaking themselves in the legal protections afforded civilians. Facing these enemies in dense, urban environments, U.S. forces often have to work within and rely on their civilian surroundings to attack these combatants and to protect themselves.

These battlefield realities raise questions about compliance with the law of armed conflict—particularly with the prohibition on perfidy and its application in these contexts. Article 37 of Additional Protocol I of the Geneva Conventions defines perfidy as any act “inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Effectively, this provision prohibits parties to armed conflicts between states (i.e., international armed conflicts or “IACs”) from abusing legal protections afforded civilians and some combatants in order to harm the enemy. Examples of this crime include feigning surrender or injury to lure an enemy into an attack or feigning civilian status to gain and betray the confidence of the enemy.

Though both customary international law and Additional Protocol I prohibit perfidy in IACs, whether and to what extent this prohibition applies within the context of non-international armed conflicts (NIACs) remains relatively unclear. NIACs, such as the United States’ conflict with al Qaeda, include conflicts between states and non-state actors or between non-state actors only. To clarify the extent to which the perfidy prohibition applies in this conflict context, this article begins by presenting the legal and practical arguments for and against applying the prohibition on perfidy to NIACs and subsequently assesses the prohibition’s scope using the recent U.S. military commission case against the U.S.S. Cole bombers and the CIA’s involvement in a Mossad car bomb operation that killed a Hezbollah leader. From this analysis, it is clear that the international legal prohibition on perfidy extends to NIACs through customary international law and that a critical component of the crime is the attacker’s abuse of law of war protections.

Myth Meets Reality: Civil Disobedience in the Age of the Internet

by Bryan H. Druzin & Jessica Li ~ Jan 21, 2015

Controlling the information available to citizens is vital to the preservation of political power, and it is one of the essential means by which authoritarian regimes sustain political monopoly. However, with the advent of the Internet, the world of communications has undergone a revolution, creating new possibilities that challenge government control over channels of information, and, by extension, public opinion. Many have asserted that the Internet is uniquely immune to government control. As such, it has been widely posited that Internet technology will precipitate the demise of the authoritarian state. The recent revolutions that set the Arab world aflame, known as the Arab Spring, seem to support this assertion. The Arab Spring has engendered a widespread sense of inevitability that Internet technology, such as social media, will empower opposition movements worldwide. Indeed, the Internet is now broadly hailed as an unstoppable democratizing force for the world.


Yet for anyone who cares to look, China defies this simplistic paradigm. China has been stunningly successful in neutralizing the political power of its Internet. The protests calling for universal suffrage that erupted on the streets of Hong Kong this autumn tell us something important about the political potency of the Internet with respect to China. The failure of the “Umbrella Revolution” to spark wider protests in the rest of China — or even among the greater Hong Kong population — belies the simplistic notion that China is a political tinderbox waiting to be ignited by the correct dose of Internet liberalization and online activism. If the protests in Hong Kong could not galvanize wider dissent even within this unique pocket of China afforded all the legal and technological advantages available, how then can different results ever be expected in the rest of China? Prior to the Hong Kong protests, the international community had yet to witness a Chinese society boasting an advanced use of Internet technology and social media engaging in large-scale public protest. As such, the protests provided a unique opportunity to test the popular meme that the viral nature of social media, once properly activated, is a juggernaut force for political transformation. The Hong Kong protests were a test of this supposition — one that failed.

Drone Law: A Reply to UN Special Rapporteur Emmerson

by Michael N. Schmitt ~ Aug 19, 2014

In January 2013, Ben Emmerson, the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, began examining the use of remotely piloted aircraft (RPA or “drones”) in extraterritorial lethal targeting, commonly labeled “targeted killing.” The following October, he released an interim report surveying the legal framework for the operations. It came on the heels of a report on the same topic by UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Christof Heyns. The two documents marked a sea-change in the ongoing debate over RPAs. Sophisticated yet accessible, the reports surgically dissected jus ad bellum (law governing the resort to force by States), jus in bello (international humanitarian law or IHL), and human rights norms. Together, they helped disentangle the often emotive, counter-factual and counter-normative dialogue that had obfuscated objective analysis.

This March, Emmerson released his 2013 annual report. It analyzes thirty-seven RPA strikes involving civilian casualties, proffers a sample strike analysis, and includes recommendations. In the report, Emmerson invites States to answer various legal questions regarding which “there is currently no clear international consensus, or where current practices and interpretations appear to challenge established legal norms.” States are to do so in advance of the 27th Session of the Human Rights Council in September. For Emmerson, “[l]egal uncertainty in relation to the interpretation and application of the core principles of international law governing the use of deadly force in counter-terrorism operations leaves dangerous latitude for differences of practice by States. . . . [T]hus an urgent and imperative need to reach a consensus” exists. The author agrees.

This essay examines Emmerson’s queries — replicated verbatim below — in an effort to assist States that answer his call. For States that do not, the analysis can serve as a useful tool in evaluating the responses of other States, as well as refining their own legal policy positions regarding RPA operations. Although the author provides his own views, he makes every effort to highlight competing positions.

What Price Financial Stability? Evaluating the European Union Financial Transactions Tax

by Andrew W. Hartlage ~ Aug 04, 2014

Though the global financial crisis reached an identifiable peak in the United States in September of 2008, events unfolded more slowly in the European theater. Banking crises in Cyprus, Greece, Iceland, and Ireland were punctuated by the failures of large financial institutions in Germany, the United Kingdom, and the Benelux countries. Similarly, while the United States reached a significant landmark along its path of financial reform with the passage in July 2010 of the Dodd-Frank Wall Street Reform and Consumer Protection Act,  Europe’s progress has been piecemeal, moving with fits and starts at the national, supranational, and international levels.

Despite some modest progress, significant threats to financial stability in Europe remain unaddressed, and the work of shoring up the European financial system continues. In February 2013, as part of this ongoing programme, the European Commission (“Commission”) proposed that some Member States levy a uniform tax on financial transactions beginning in 2014. This tax, known as the European Union Financial Transactions Tax (“EU FTT”), would apply to financial transactions between or with residents of participating Member States, and to transactions involving securities issued in participating Member States or derivatives of such securities.

This Essay argues that the EU FTT as proposed is flawed policy. Part I discusses how the European Union’s responses to the problem of financial stability are constrained by provisions in the EU’s foundational treaties. Parts II and III discuss the proposal’s wisdom as a matter of policy, and conclude not only that the EU FTT does little to solve the problems of financial instability in Europe, but also that the EU FTT threatens to undermine concurrent regulatory efforts to improve financial stability.

The Small Steps of the SPEECH Act

by Bruce Brown & Clarissa Pintado ~ Mar 19, 2014

     It had become the go-to punch line for English lawyers attending libel conferences in the United States. Speaking at a podium or debating on a panel, asked to explain a decade of growing defamation litigation in Britain against American authors and news organizations, they would shrug their shoulders and quip, with a nod to the late, great Johnny Cash, that London had indeed turned into a “town named Sue.”

     For many years, the joke was on us. Foreign libel plaintiffs had a considerable upper hand over American defendants in U.K. courts. By bringing suit in England, they could circumvent "actual malice" rules under New York Times Co. v. Sullivan and other substantive First Amendment rights.  What is more, contrary to the standards in the United States, English courts were willing to assert personal jurisdiction over a defendant publisher who was not deliberately targeting a British audience.

     That jurisdictional practice had a particularly significant impact in the age of online publishing when posting news articles on a domestic website makes the material available instantaneously around the world. Lack of due process added to a lack of free speech protections and made for a lethal combination. Not only did English defamation law tilt the scales dramatically toward plaintiffs, it also encouraged individuals to bring suit in the United Kingdom even if they had tenuous ties to the forum and the defendant virtually none.

     The SPEECH Act was a measured and modest response to a significant problem that had created a tangible chilling effect on publishers in this country. Enacted in 2010, the SPEECH Act held strong against its first challenge in federal court when the Fifth Circuit opted not to enforce a default defamation judgment from Canada against a Mississippi blogger. In Trout Point Lodge v. Handshoe, the plaintiffs failed to prove the two prime elements of the SPEECH Act: that is, that Canadian defamation law is not as protective of free speech as U.S. law and that defend-ant would have been found liable in a Mississippi court. Handshoe had posted content on his Gulf Coast online forum linking Trout Point to a corruption scandal in Jefferson Parish, Louisiana. In its claim, Trout Point did not make sufficient assertions regarding a key element that a plaintiff must show to comport with U.S. Constitutional standards: falsity.

     Although Trout Point Lodge represents the utility of the SPEECH Act against international forum shopping, the legislation has its critics. The Professors David Anderson and Mark Rosen do not always agree with each other on what they believe is wrong with the SPEECH Act, but they are both critical of Congress's modest but important steps in this area. While this article will briefly respond to their criticisms, much credit is due to the professors for giving the legislation - and the issues behind it - some much-needed academic attention. This is the phenomenon of "libel tourism." While England was not the only problematic foreign jurisdiction, it was by far the most notorious - the "libel capital of the world" - with several high-profile cases that resulted in complete capitulation from publishers. For American media companies, the threat of libel tourism had developed into a real concern. Media defendants were settling suits abroad as U.S. enforcement uncertainties loomed.

 

 

 

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