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"Lacunae in International Humanitarian Law"
Professor Diane Amann
University of California, Davis
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Thursday, April 24, 2008
4:00 - 5:30 PM
Social Sciences Building (SSB), Room 107
University of California, San Diego
Paper Abstract:
Policies the United States pursued after September 11, 2001, in pursuit of what President George W. Bush called the Global
War on Terror, garnered much criticism. Of particular concern was the manner in which the Bush Administration exploited
preexisting law in order to give legalistic cover to its policies. A plethora of laws had seemed to promise protection for
persons detained in the course of armed conflict. Already in place were the protective customs and treaties - chief among
the latter, the Third and Fourth of the four Geneva Conventions adopted in 1949 - comprising international humanitarian law.
Augmenting these were other systems of law at times called upon to enforce international humanitarian law; the legal systems
of individual nation-states, to be specific, as well as regional and international human rights compliance systems. Both
through actions it took in public and through memoranda it initially kept secret, the United States exposed the patchwork
nature of these laws. Having identified legal lacunæ, U.S. officials then chose to exploit those gaps in the law - to
forsake a prior tradition of enforcing the humanitarian spirit even if the letter of the law did not seem to apply and
instead to find in law's interstices space within which the Executive could and would act free of constraint. Abuse of
detainees at Abu Ghraib and elsewhere ensued. Not only were humanitarian legal principles violated, but violations resulted
in no demonstrable increase in security.
This paper first examines how the public international law tradition enunciated eighty-six years ago in the judgment
entitled Case of the S.S. Lotus preserved room for a state - particularly a unipolar power like the United States - to act
unfettered by law. It further discusses how the United States endeavored to insert "Lotus holes" within its own domestic
legal system. Inspired by the midway game Whack-a-Mole, the paper then posits an alternative model of governance by which
overlapping legal regimes, on the one hand, and interdependent geopolitics, on the other, might combine to check not only
threats posed by global crime-terror networks, but also abuses that arise when nation-states act to combat terrorism.
Biography:
Diane Marie Amann is a Visiting Professor of Law at the University of California, Berkeley, School of Law (Boalt Hall) and Professor of Law at the University of California, Davis, School of Law (Martin Luther King, Jr. Hall). Her scholarship examines law's response to globalization; in particular, the interaction of national, regional, and international legal regimes at play in efforts to combat atrocity and cross-border crime. In March 2007, Professor Amann received the degree of Doctor honoris causa in law from Universiteit Utrecht, the Netherlands. She had received her Juris Doctor degree cum laude from Northwestern University School of Law, after which she served as a law clerk for U.S. District Court Judge Prentice H. Marshall in Chicago and for U.S. Supreme Court Justice John Paul Stevens, then practiced federal criminal defense law in San Francisco. She was graduated summa cum laude with a B.S. degree in journalism from the University of Illinois at Urbana-Champaign, and earned an M.A. in political science from the University of California, Los Angeles. She has been a professeur invitée at the Faculté de droit, Université de Paris 1 (Panthéon-Sorbonne), and a Visiting Professor at the Irish Centre for Human Rights, National University Ireland, Galway. Among her recent publications is Abu Ghraib , 153 University of Pennsylvania Law Review 2085 (2005), named Article of the Year by the American section of the International Association of Penal Law.
This event is co-sponsored by IICAS, California Western School of Law, the American Branch of the International Law Association, and the American Society of International Law-West. |
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Thu 8/21/08 10:04 AM">Thu 8/21/08 10:04 AM
s disease, and environmental degradation
Weapons of mass destruction
Terrorism
Transnational organized crime
IICAS' 2006-07 International Law Speaker Series, which is co-sponsored by the
International Legal Studies Program at California Western School of Law, will
examine each of these threats, offering comments from distinguished scholars and
practitioners about how best to address international security. All
lectures in the series are free and open to the public.
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Last Updated:
Mon 4/14/08 4:18 PM
