2003.11.21 -- PEGC Update ========================= SOME SIGNIFICANT PUBLICATIONS Well folks, I've just about had it with all the blather, excuses, denials, and lies I've had to listen to this week... so it's time for some TONIC, and here's a good stout dose: 1) The Army Lawyer, November 2003 -- AFGHANISTAN, QUIRIN, AND UCHIYAMA: DOES THE SAUCE SUIT THE GANDER? By Hon. Evan J. Wallach, U.S. Court of International Trade [ Army Law., Nov. 2003, at 18-47 ] http://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/TJAGSAWeb.nsf/30f3b74ee 458852885256bf200573d18/d82a99316353244085256de5006dcbcc/$FILE/Article%204.pdf It's been a long wait for this article -- I first read a draft of it from Judge Wallach's excellent Law of War web site [ http://www.lawofwar.org/ ] over a year ago -- the same day I first read Prof. Paust's articles on the same topics (thank you Google). So this is highly recommended reading, and in particular I'd like to call everyone's (especially the journalists!!) attention to something Judge Wallach says near the end of it: "If Uchiyama is valid precedent, and 18 U.S.C. § 2441 seems to say it is, then participants in any U.S. military tribunal that followed the Quirin evidentiary and procedural standards should seek counsel. Clearly, an unfair war crimes trial of a POW violates both the GPW and current U.S. and international law. To imagine otherwise would set the law of nations back to the dark days of history when the fate of the captive rested on the whim of their captors." Id. at 46. 2) And speaking of Prof. Paust, he's just had a new article published himself: WAR AND ENEMY STATUS AFTER 9/11: ATTACKS ON THE LAWS OF WAR By Jordan J. Paust, Law Foundation Professor, University of Houston 28 Yale Journal of International Law 325-335 (2003) ** No link for this -- see a hard copy or Westlaw. ** I haven't read this one yet, but I don't need to read it to recommend it: Prof. Paust is one of our most eminent and visionary experts on International Law. Here's a couple of his other papers I came across recently which are also of interest: ASIL Presidential Task Force on Terrorism Series (2002) THERE IS NO NEED TO REVISE THE LAWS OF WAR IN LIGHT OF SEPTEMBER 11TH Jordan J. Paust http://www.asil.org/taskforce/paust.pdf TERRORISM AND THE INTERNATIONAL LAW OF WAR Jordan J. Paust [ 64 MIL. L. REV. 1 (1974) ] http://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/TJAGSAWeb.nsf/998537a74 c7b990885256cfa0052d46c/e4d09b2f0fa527fd85256cfb0065eb24/$FILE/MLR%2027-100-64%2 019740401.pdf Note that last one was written almost 30 years ago. 3) The Army Lawyer, November 2003 -- Judge Wallach's Uchiyama article isn't the only item of interest in the November 2003 issue of Army Lawyer, see also: MILITARY COMMISSIONS: TRYING AMERICAN JUSTICE By Kevin J. Barry, Captain (Ret.), US Coast Guard http://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/TJAGSAWeb.nsf/30f3b74ee 458852885256bf200573d18/d82a99316353244085256de5006dcbcc/$FILE/Article%201.pdf WHY MILITARY COMMISSIONS ARE THE PROPER FORUM AND WHY TERRORISTS WILL HAVE "FULL AND FAIR" TRIALS: A REBUTTAL TO MILITARY COMMISSIONS: TRYING AMERICAN JUSTICE By Colonel Frederic L. Borch III, US Army; Chief Prosecutor, DoD Office of Military Commissions http://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/TJAGSAWeb.nsf/30f3b74ee 458852885256bf200573d18/d82a99316353244085256de5006dcbcc/$FILE/Article%202.pdf Editorial Comment: A RESPONSE TO WHY COMMISSIONS ARE THE PROPER FORUM AND WHY TERRORISTS WILL HAVE "FULL AND FAIR" TRIALS By Kevin J. Barry, Captain (Ret.), U.S. Coast Guard http://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/TJAGSAWeb.nsf/30f3b74ee 458852885256bf200573d18/d82a99316353244085256de5006dcbcc/$FILE/Article%203.pdf The pdf file for the full issue is: http://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/TJAGSAWeb.nsf/30f3b74ee 458852885256bf200573d18/d82a99316353244085256de5006dcbcc/$FILE/TAL%2027-50-366%2 020031101.pdf 4) International Humanitarian Law Research Initiative -- http://www.ihlresearch.org/portal/ihli/portalhome.php Has announced a new section at: http://www.ihlresearch.org/portal/ihli/alabama.php "...developed as a follow-up to the January 2003 Informal High-Level Expert Meeting on the Reaffirmation and Development of International Humanitarian Law. "[U]sers will find a webpage devoted to each of the five main themes raised by the meeting as well as an additional page on the theme of Occupation and Peacebuilding. "Each of these pages is subdivided into four sections including: a briefing paper written by an IHL expert; selected literature; legal materials; and related news. The pages were developed in close cooperation with a group of selected experts. "The themes addressed in these follow-up webpages are: Direct Participation of Civilians in Hostilities; The Impact of High- and Low-Technology Warfare on IHL; Suicide Attacks Against Civilians during an Armed Conflict; Humanitarian Access to the Civilian Population; Compliance with IHL by Non-State Actors (NSAs); Occupation and Peacebuilding. 5) JUDGEMENT AT NUREMBERG: "The Justice Case" -- US v. Alstötter was the case on which the classic movie JUDGEMENT AT NUREMBERG was based. The following article includes commentary by Prof. Linder and extensive quotations from the court's opinion. This is something that I think everyone should read: see especially the section "The Law in Action" -- and compare that to the Bush administration's arguments. A COMMENTARY ON THE JUSTICE CASE by Doug Linder United States of America v. Alstötter et al. 3 T.W.C. 1 (1948), 6 L.R.T.W.C. 1 (1948), 14 Ann. Dig. 278 (1948). http://www.law.umkc.edu/faculty/projects/ftrials/nuremberg/Alstoetter.htm Regards, Charly * * * Charles Gittings Oakland, California +1-510-923-1688 cbgittings@sbcglobal.net Project to Enforce the Geneva Conventions (PEGC) http://PEGC.no-ip.info/ PEGC Update http://PEGC.no-ip.info/PEGC_Update.html