Attention Law 316 Students (IHL &IHRL)

Below is our partial Syllabus for International Humanitarian Law:

Syllabus – Law 316 International Humanitarian Law and Human Rights Law
Second Semester 2018-2019

Course Description: This course will take a close look at key topics in international humanitarian
law (IHL) (also known as the law of war (LOW) and the law of armed conflict (LOAC) – note
that we will use LOW, LOAC and IHL interchangeably). This is not intended to be a survey of
LOAC. Instead, students are expected to come to the course with some background in this area
of the law (either through study or prior experience), or in related fields. Building upon a
foundation of assigned readings on core IHL topics, the professors and students will tailor
classroom work to coincide with the students’ research and writing projects (see below). Given
that students are expected to be familiar with the LOAC generally, each topic will not necessarily
build upon the preceding topics. Indeed, each of the topics chosen for the classroom meeting
could be the subject of a class in its own right, meaning that they each represent topics of
importance that could be the basis for academic research. Therefore, it is essential that everyone
do the readings and come to class to participate actively in discussion and, where it is relevant to
the topic being discussed, we reserve the right to ask you to lead the discussion and share your
own research with other students.

Research and Writing Projects: The course is intended to provide an opportunity for students to
do extensive research on a particular IHL topic of their choosing and to use that research in
writing a significant paper of publishable quality. The technical requirements for the paper
include: (1) use of correct legal forms of citation; (2) timely submission of (i) a detailed outline
and (ii) a first draft of at least 6,000 words (excluding footnotes or endnotes), in accordance with
our instructions and schedule; and (3) submission of a revised final paper of at least 6,000 words
(excluding footnotes or endnotes) based on the professor’s comments.

Please use a 12 point font, double spaced, when submitting papers, and be sure to send all work
in Word. The final paper will be due one week after final examination. We do not anticipate
granting requests for extension except for health or similar reasons.

Papers of 6,000 words (excluding footnotes) in length are at least 25 typewritten pages using
customary margins and spacing. All work must be that of the student in consultation with the
supervising professor or must be cited for attribution to others.

Grading: The course grade will reflect the timeliness and quality of (i) the outline (5%), (ii) the
draft paper (5%); and (iii) the final paper (70%). Class participation (including your presentation
during the final weeks of the course) will also be considered 20% of your grade (see below).

Because a paper must be a product of the student’s own work in consultation with the
supervising professor, students who are interested in using their final paper for other purposes
(such as a law journal note or writing sample for a job application) may do so only: (1) after the
paper has been submitted for grading; and (2) to the extent the student has not received
comments, edits, or other feedback on the paper from individuals other than their grading
professor (or in connection with classroom discussion as overseen by such professor) prior to the
time it is submitted for grading.

Course Objective: To provide you with an opportunity to explore in detail key topics in IHL and
to translate your analysis of one key topic into a seminar paper of publishable quality.

Class Participation: IHL is a fascinating subject and susceptible to many points of view. You do
not have to adopt our views on this subject, but we do require active participation in class
discussions. Class participation will include (i) attendance and active participation in class room
discussion; and (ii) an oral presentation (supplemented if you wish with a few power point
slides) to the class regarding the topic you choose to write on. We reserve the right to assign
short out of class assignments if we believe it necessary to stimulate in-class discussion.

Attendance: As you know, it is College of Law policy that students must regularly attend class.
A student who has not regularly attended and participated [in a course for which he or she is
registered may, at the professor’s option, be withdrawn, excluded from the course or receive a
lowered grade in the course.”

Topics in International Humanitarian Law (IHL)

Topics and Reading Assignments, Second Semester 2018-2019

Notes:

This course is intended to give students with a serious interest in IHL a chance to explore key
aspects of the subject and to pursue in-depth research on a topic of their choosing in
collaboration with any Professor of the College of their own choice. The course does include a
set of readings for students, as well as discussions in a classroom setting. However, we reserve
the right to adjust the readings and the syllabus accordingly if we think it better fits student
interest, knowledge and research. Students will lead classroom discussion. We also may make
changes as developments in the world generally warrant.

Potential topics for discussion include the post 2001 development in the jus ad bellum, the
thresholds for the application of IHL, the minimum standards of protection of civilians and non-
combatants from the effects of conflict, the interface of IHL with human rights law and domestic
law, targeting under IHL, including the concept of direct participation of hostilities, the efficacy
of IHL in current conflicts, remote warfare (including cyber warfare and autonomous weapons),
the standards for detention under IHL, including both permissible duration and treatment, trial of
detainees, and other topics.

The reading materials can be accessed on the Web. You are expected to do all the required
readings and to be prepared to discuss them in class. Please peruse the background readings as
well to see if anything interests you.

The website of the International Committee of the Red Cross (ICRC) (www.icrc.org) contains a
number of resources that we expect to use during the semester. You are encouraged to explore
the ICRC’s website; you may find it useful in developing the topic for your paper. You may also
find it fruitful to review a few of the key national security blogs, such as www.lawfareblog.com,
www.justsecurity.org and www.opiniojuris.org.

Topic 1: Jus ad Bellum vs. Jus in Bello

Possible Topics for Discussion:

If IHL governs when a nation uses military forces to combat its enemies, what are the rules that
govern that nation’s right to resort to military force and how have they changed since 2001?
There is controversy internationally over the rules for the right to resort to self-defense against
the threat of an armed attack. How do the approaches differ among various countries? How about
the rules applied when the enemy is not another State but instead a non-State armed group or
terrorist organization? How does IHL relate to jus ad bellum?
Required Reading:
1. Geoff Corn, Legal Basis for the Use of Armed Force in GEOFF CORN ET AL, THE WAR
ON TERROR AND THE LAWS OF WAR: A MILITARY PERSPECTIVE (2015)

2. Office of the President, REPORT ON THE LEGAL AND POLICY FRAMEWORKS

GUIDING THE UNITED STATES’ USE OF MILITARY FORCE AND RELATED
NATIONAL SECURITY OPERATIONS 1-26 (2016) – available at
https://www.whitehouse.gov/…/docume…/Legal_Policy_Report.pdf

3. D. Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an

Imminent or Actual Armed Attack by Non-State Actors, 106 AM. J. INT’L L. 769 (2012) –
available at http://www.un.org/…/Bethlehem%20-%20Self-Defense%20Article.….

4. J. Wright, UK Attorney General, The Modern Law of Self-Defence (11 Jan 2017), available at
http://www.ejiltalk.org/the-modern-law-of-self-defence/

Background Reading:
TALLINN MANUAL ON THE INTERNATIONAL LAW APPLICABLE TO CYBER
WARFARE, Rules 10-17 (Michael N. Schmitt ed., 2013) - a version you can read on the web is
available at http://issuu.com/nato_ccd_coe/docs/tallinnmanual?e=0/1803379. You also may find
copies on the Internet.
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986
I.C.J. 14 (June 27) - available at http://www.icj-cij.org/docket/files/70/6503.pdf.
Legal basis for UK military action in Syria (U.K. House of Commons Briefing Paper No. 7404)
(Dec. 1, 2015) - available at http://researchbriefings.files.parliament.uk/…/CBP-7404/CBP….
U.S. Dep’t Defense, DOD LAW OF WAR MANUAL, paras. 1.11 and 3.5 (2016), - available at
https://www.defense.gov/…/DoD%20Law%20of%20War%20Manual%20-….
Ashley Deeks, “Unwilling or Unable”: Toward a Normative framework for Extra-
Territorial Self-Defense, 52 VJIL 483 (2012) -available at
http://www.vjil.org/…/vol52/issue3/Deeks_Post_Production.pdf
Topic 2 - The debate over the legal geography of the battlefield

Possible Topics for Discussion:

Scholars have challenged the U.S. claim that its operations against affiliates of al Qaeda outside
of recognized zones of hostilities such as Afghanistan are part of a single armed conflict. What is
the basis for this U.S. claim and what is the critique of the U.S. position? Are there any proposals
for resolving the debate?
Required Readings:
1. Geoff Corn, Triggering the Law of Armed Conflict? in GEOFF CORN ET AL, THE WAR
ON TERROR AND THE LAWS OF WAR: A MILITARY PERSPECTIVE (2015).

2. M. Schmitt, Charting the Legal Geography of Non-International Armed Conflict, 90 INT’L L.

STUD. 1 (2014), available at http://stockton.usnwc.edu/cgi/viewcontent.cgi…

Background Reading:
See pp. 49-57 of 1956 ICRC commentary on GWS article 3, available at
https://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp… and pp. 35-41 of the ICRC Commentary
on GCIV article 3, available at https://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp….
Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on Defence Motion for Interlocutory Appeal
on Jurisdiction, (Int’l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995),
http://www.icty.org/x/cases/tadic/acdec/en/51002.htm.
Jennifer C. Daskal, The Geography of the Battlefield: A Framework for Detention and Targeting
Outside the “Hot” Conflict Zone, 161 U. PA. L. REV. 1165 (2013) available at
https://www.pennlawreview.com/print/index.php?id=394.
Laurie R. Blank, Learning to Live with (a Little) Uncertainty: The Operational Aspects and
Consequences of the Geography of Conflict Debate, 161 U. PA. L. REV. ONLINE 347 (2013),
available at https://www.pennlawreview.com/responses/?id=120.
Kenneth Anderson, Targeted Killing and Drone Warfare How We Came to Debate Whether
There Is a “Legal Geography of War” (2011),
http://media.hoover.org/…/doc…/FutureChallenges_Anderson.pdf.
U.S. Dep’t Defense, DOD LAW OF WAR MANUAL, para. 3.4 (2016) – available at
https://www.defense.gov/…/DoD%20Law%20of%20War%20Manual%20-…

Topic 3 - Application of Human Rights Law in Armed Conflict

Possible Topics for Discussion:A number of scholars and the ICRC have posited that
International Human Rights Law (IHRL) continues to apply in armed conflict though IHL may
be controlling in situations that are unique to armed conflict. The United States traditionally has
taken the position that IHL displaces IHRL in armed conflict. In 2014, however, the United
States agreed that a key IHRL treaty – the Convention Against Torture (CAT) – applies
wherever the United States has control as a governmental authority, including at the detention
facility in Guantanamo, and that while IHL takes precedence over the CAT where the two
conflict, the laws of war do not generally displace the CAT’s application.
The debate raises a number of issues. How is IHRL different than IHL operationally (i.e., when
facing a threat of the use of lethal force by an armed group)? Is IHL a lex specialis or does it
supplant IHRL in such situations? Given the lack of consensus on the relationship of IHL and
IHRL in armed conflict, how has IHRL affected U.S. operations in armed conflict?
Required reading:
1. INT’L COMM. RED CROSS, THE USE OF FORCE IN ARMED CONFLICTS:
INTERPLAY BETWEEN THE CONDUCT OF HOSTILITIES AND LAW ENFORCEMENT
PARADIGMS (2013) available at https://shop.icrc.org/the-use-of-force-in-armed-conflicts-e….

2. U.S. Dep’t Defense, DOD LAW OF WAR MANUAL, para. 1.6 (2016) – available at
https://www.defense.gov/…/DoD%20Law%20of%20War%20Manual%20-….

3. Remarks by the President at the National Defense University, May 23, 2013,
https://www.whitehouse.gov/…/remarks-president-national-def….
Background Reading:
Hassan v. The United Kingdom, App. No. App. no. 29750/09, -- Eur. Ct. H.R. – (2014),
available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx…{"itemid"😞"001-146501"]}.
To save time, you may want to look at the ECtHR’s summary at
file:///C:/Users/Jim%20and%20Monica/Downloads/Hassan%20v.%20the%20United%20Kingdo
m%20[GC].pdf
Harold Koh, Office of the Legal Adviser, U.S. Department of State, Memorandum Opinion on
the Geographic Scope of the International Covenant of Civil and Political Rights (Oct. 19, 2010)
available at https://s3.amazonaws.com/…/…/state-department-iccpr-memo.pdf

Topic 4: Targeting – the debate over who and what are valid military objectives

Possible Topics for Discussion:

While the principle of distinction is not controversial, the definition of who and what may be
targeted can be. The U.S. DoD Law of War Manual lays out the criteria for distinguishing
between those persons and things that are targetable and those that are not. How does the U.S.
view compare to the views of the ICRC and others? For example, does the United States
consider a broader range of individuals to be targetable in armed conflict than the international
community? What about objects that make an economic contribution to enemy capacity to fight?

Required reading:
1. Eric Talbot Jensen, Targeting Persons and Property in GEOFF CORN ET AL, THE WAR ON
TERROR AND THE LAWS OF WAR: A MILITARY PERSPECTIVE (2015).

2. INT’L COMM. RED CROSS, INTERPRETIVE GUIDANCE ON THE NOTION OF

DIRECT PARTICIPATION IN HOSTILITIES (2009) available at
https://shop.icrc.org/interpretive-guidance-on-the-notion-o….

3. U.S. Dep’t Defense, DOD LAW OF WAR MANUAL, paras. 5.7, 5.8 and 5.9 (2015) available
at https://www.defense.gov/…/DoD%20Law%20of%20War%20Manual%20-…

4. Kenneth Watkin, Targeting “Islamic State” Oil Facilities, 90 INT’L L. STUD. 499 (2014)
available at https://www.usnwc.edu/…/Targeting--Islamic-State-Oil-Facili….
5. Executive Order, US Poicy on Pre- and Post-Strike Measures to Address Civilian Casualties in
US Operations Involving the Use of Force (! Jul 2016), available at
https://www.whitehouse.gov/…/executive-order-united-states-…

Background reading:
Bill Boothby, “And for such time as”: The Time Dimension to Direct Participation in Hostilities,
42 N.Y.U.J. INT’L L. & POL. 741 (2010) available at http://nyujilp.org/wp-
conte…/uploads/2012/…/42.3-Boothby.pdf.

W. Hays Parks, Part IX of the ICRC “Direct Participation in Hostilities” Study: No Mandate, No
Expertise, and Legally Incorrect, 42 N.Y.U.J. INT’L L. & POL. 769 (2010) available at.

Michael N. Schmitt, Deconstructing Direct Participation in Hostilities: The Constitutive

Elements, 42 N.Y.U.J. INT’L L. & POL. 697 (2010) available at http://nyujilp.org/wp-
conte…/uploads/2012/…/42.3-Schmitt.pdf.

Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC “Direct
Participation in Hostilities Interpretive Guidance, 42 N.Y.U.J. INT’L L. & POL. 641 (2010)
available at http://nyujilp.org/wp-content/uploads/2012/…/42.3-Watkin.pdf.

Topic 5 – Inculcating IHL Compliance in the Warrior

Possible Topics for Discussion:

What steps can be taken to ensure that those who bear arms comply with IHL? Does IHL really
promote humanity in warfare?

Required Reading:

1. Pages 1-1 to 1-4 in U.S. DEP’T ARMY, THE WARRIOR ETHOS AND SOLDIER
COMBAT SKILLS, TC 3-21.75 (2013) available at https://fas.org/irp/doddir/army/tc3-21-75.pdf

2. U.S. DEP’T DEF., DIR. 2311.01E, DOD LAW OF WAR PROGRAM (2006) available at
https://www.defense.gov/…/DoD%20Law%20of%20War%20Manual%20-…

3. DANIEL MUÑOZ-ROJAS & JEAN-JACQUES FRÉSARD, THE ROOTS OF BEHAVIOUR

IN WAR: UNDERSTANDING AND PREVENTING IHL VIOLATIONS (2004), available at
https://www.icrc.org/e…/assets/files/other/icrc_002_0853.pdf.

4. Geoff Corn & James Schoettler, Targeting and Civilian Risk Mitigation: The Essential Role of
Precautionary Measures, 223 MIL. L. REV. 785 (2015) available at
https://www.jagcnet.army.mil/…/3.%20%20By%20Professors%20Co…

Background reading:
U.S. Dep’t Defense, DOD LAW OF WAR MANUAL, paras. 18.1 – 18.10 (2015),
http://www.dod.mil/dodgc/images/law_war_manual15.pdf.
John Fabian Witt, The Dismal History of the Laws of War, 1:3 U.C. IRVING L. REV. 895
(2011), available at http://www.law.uci.edu/lawreview/Vol1No3Articles/Witt.pdf.
Naz K. Modirzadeh, Folk International Law: 9/11 Lawyering and the Transformation of the Law
of Armed Conflict to Human Rights Policy and Human Rights Law to War Governance, 5 Harv.
Nat’l Sec. J. 225 (2014) available at http://harvardnsj.org/…/uploads/2014/01/Modirzadeh-
Final.pdf.
Chris af Jochnick and Roger Normand, The Legitimation of Violence: A Critical History of the
Laws of War, 35 HARV. INT’L L. J. 49 (1994). You can read this on line at
http://www.scribd.com/…/The-Legitimation-of-Violence-1-A-Cr….

Charles S. Meier, Targeting the City: Debates and Silences about the Aerial Bombing of
World War II, 87 INT. REV. RED CROSS 429 (2005) available at
http://www.icrc.org/e…/assets/files/other/irrc_859_maier.pdf.

Other topics and announcements will be posted soon.

Nota Bene: class reps please pm me asap