Laws of war Part 1

The Necessity Procedure: Laws of Torture in Israel and Beyond, 1987 2009
Itamar Mann and Omer Shatz
Unbound: Harvard Journal of the Legal Left
Volume 6, Winter 2010 p.59

This article traces the history of the regulation of torture in Israel, and shows how it foreshadowed the legal understanding of torture in the United States in the wake of “The War on Terror.” Part I of the article demonstrates how the celebrated Israeli Supreme Court decision in Public Committee v. Israel, traditionally understood as a bold prohibition of torture, should instead be seen as institutionalizing and managing torture. Since Public Committee, the Israeli executive and the judiciary worked hand in glove to protect this regime, which we label necessity management. Part II of the article revisits the Landau Commission, convened to investigate torture in the Israeli security services, which ultimately legitimated physical interrogation techniques. We argue that the roots of necessity management, which developed after Public Committee, are already spelled out in the Landau Commission report. These rules emerge from the needs of preserving an undemocratic regime of military occupation. Public Committee, in which the Israeli Supreme Court seemingly struck down the Landau Commission’s conclusions, actually cleared the way for implementing these conclusions behind a veil of prosecutorial discretion. Part III articulates some of the theoretical assumptions underlying the regime of necessity management. We argue that this regime, which originated in the undemocratic political context of occupation, foreshadowed protections for torturers under the Bush and the Obama administrations.

Shaping the Rights of the Guantánamo Bay Detainees: Policymaking or Interbranch Impasse?
Dante Gatmaytan
DePaul Rule of law Journal
Fall 2010

This Article examines the evolution of the rights of prisoners of the war on terror, namely those detained in Guantánamo Bay, Cuba. Although President George W. Bush attempted to create a legal regime that placed detainees beyond the protection of the Constitution and international laws, they eventually challenged his policy by filing suits in federal courts, triggering a policy dialogue at the national level and prompting the Supreme Court to hand down four decisions in seven years. The author also analyzes the Guantánamo Bay policy from an interbranch perspective-the view that policy making is produced not from the acts of any single branch of government but from the interaction of its branches. In this regard, he examines the conditions that encouraged the President to centralize powers in the executive branch and the manner in which other branches of government responded. This Article concludes by positing that the Supreme Court assumed a democracy-promoting role while the rights of prisoners of war were being shaped, inviting Congress to play a larger role in policymaking and urging the executive brach to adhere to congressional prescriptions.

Sovereignty and the Laws of war : International Consequences of Japan’s 1905 Victory over Russia
Douglas Howland
Law and History Review
Volume 29, Number 1, February 2011 p.53-97

The Constitution and the Laws of War During the Civil War
Andrew Kent
Notre Dame Law Review
Volume 85, Number 5, December 2010 p.1839

The Laws of War as a Constitutional Limit on Military Jurisdiction
Stephen I. Vladeck
Journal of National Security Law & Policy
Volume 4, Number 2, 2010 p.295

EMPIRICAL APPROACHES TO INTERNATIONAL LAW: THE INTERNATIONAL LAWS OF WAR AS REFLECTED IN 500 YEARS OF MULTILATERAL TREATY-MAKING
JOHN KING GAMBLE & DANIEL P. HIDO
Willamette Journal of International Law and Dispute Resolution
Volume 16, Number 2, 2008 p.321

Proportionality and War Crimes in Gaza under the Laws of Armed Conflict
Barry A. Feinstein
Rutgers Law Record
Volume 36, Issue 2, Fall 2009

Author: international

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