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The University of Miami National Security & Armed THE UNIVERSITY OF MIAMI NATIONAL SECURITY & ARMED CONFLICT LAW REVIEW Volume 2 Summer 2012 THE UNIVERSITY OF MIAMI NATIONAL SECURITY & ARMED CONFLICT LAW REVIEW Volume 2 Summer 2012 Copyright © 2013, National Security and Armed Conflict Law Review All rights reserved. No part of this book may be reproduced, stored, or transmitted by any meanswhether auditory, graphic, mechanical, or electronic without written permission of both publisher and author, except in the case of brief excerpts used in critical articles and reviews. Unauthorized reproduction of any part of this work is illegal and is punishable by law. ISBN 978-1-300-44648-4 V THE UNIVERSITY OF MIAMI NATIONAL SECURITY & ARMED CONFLICT LAW REVIEW ________________________________________________ Executive Board Justin Levine Paul Jezierny Editor-in-Chief Staff Managing Editor Joel Feigenbaum Jillianne Pierce Executive Managing Editor External Marketing Editor Editorial Board Greg Widmer Alexander Roth Chief Article Editor Chief Notes & Comments Editor Tricia Robinson Justin Ortiz Symposium Editor Website Articles Editor Senior Article Editors Shawn Brooks Kate Lotz Corey Gray Cole Timonere Members Gretchen Cothron Krysta Markus Jared Dallue Paige Reese Matthew Davis David Roller Mark DeSanto Claire Rumler Timothy J. Green James Slater Alejandra Guarneros Jonathan Stamm Brian Heit Josh Stern Dan Kinney Zachary Ward James Lechter Michael Weiss Grant Lyons Aric Williams VI Article Requirements: The Executive Board of the University of Miami National Security & Armed Conflict Law Review welcomes the submission of articles written by professors, practitioners, and other scholars. The National Security & Armed Conflict Law Review accepts articles written on national security, law of war, and armed conflict-related areas of the law. Manuscripts submitted to this Review should comply with The Bluebook: A Uniform System of Citation (19th ed. 2010). The Review prefers that articles be submitted electronically using Microsoft Word. Once accepted, each article will be published on a rolling basis. NSAC publishes three types of works as follows: x Articles: Articles are designed to advance national security and armed conflict scholarship. x Member case notes: Member case notes are articles written by our members and other student scholars. x Book reviews: Book reviews evaluate a current, published work in the national security field. When submitting any type of work, we request that contributors comply with the following standards: Electronic Submissions: We strongly encourage authors to submit their manuscripts electronically in Microsoft Word format. Submissions should be emailed as an attachment to [email protected] with the word Submissions and the authors last name in the subject line. Length Guidelines: x Articles: Articles are generally between 20-60 pages double-spaced. Shorter or longer works are considered on a case-by-case basis. x Member case notes: Member case notes are between 20-30 pages double-spaced. Works outside this range may be considered in exceptional circumstances. x Book reviews: Book reviews are reviewed on a case-by-case basis. Questions? Please contact: University of Miami School of Law P.O. Box 248087 Coral Gables, FL 33124 [email protected] VII Subscriptions are electronic or paperback. To sign up for a subscription, please send your request to [email protected] accompanied with the email address you wish to receive our subscriptions or a request for a paperback form. Paperbacks are $20 a year and subject to change annually. IX LOOKING FORWARD. A NOTE FROM THE EDITOR IN CHIEF To look beyond tomorrow, we must often look behind us. In few areas of study is this idea more relevant than in the law and its application to national security issues, armed conflict, and global humanitarian efforts. As in the past, todays developments, such as cyberspace, globalization, and technological advancements, diminish the distance between individuals. Yet, as our world shrinks, complicated and new legal frontiers are exposed. That being said, new theories are constantly tested on the international stage and those that meet the demands of the modern global environment survive. This journal, the National Security and Armed Conflict Law Review (NSAC), is a cradle for those ideas. It serves as an opportunity for our authors to study the patterns of the past and as a canvas to propose new concepts and comparative analyses for the future. Fundamental in every articleand the design of the journal itselfis the idea of looking to the trends of the past in an effort to prepare for what lies ahead. Recognizing changing patterns of how readers access information, NSAC became the first primarily online journal at the University of Miami School of Law last year. This year has shown exponential growth. The online journal is more inclusive, interactive, and vibrant. By sidestepping traditional recruiting methods, our staff is more diverse, devoted, and enthusiastic. Our readership continues to expand and as a result, there has been a school-wide initiative for all other University of Miami law journals to follow suit. It is this innovation that is also reflected in our work. So I invite you to read on, andas we havelook forward. Sincerely, Justin Levine Editor-in-Chief CONTENTS LEAD ARTICLES The Ferrini Doctrine: Abrogating State Immunity from Civil Suit for Jus Cogens Violations ................... 1 Natasha Marusja Saputo Weak Loyalties: How the Rule of Law Prevents Coups DÉtat and Generates Long-Term Political Stability ....................................................................................................................................... 38 Ivan Perkins Silent Partners: Private Forces, Mercenaries, and International Humanitarian Law in the 21st Century ...................................................................................................................................................... 86 Steven R. Kochheiser PNR in 2011: Recalling Ten Years of Transatlantic Cooperation in PNR Information Management ............................................................................................................................................ 111 Valentin M. Pfisterer STUDENT NOTES Habeas Corpus Outside U.S. Territory: Omar v. Geren and Its Effects On Americans Abroad ............. 133 John Wright Reevaluating ITAR: A Holistic Approach to Regaining Critical Market Share While Simultaneously Attaining Robust National Security ................................................................................ 150 Justin Levine How Puppet Masters Create Genocide: A Study in the State-Sponsored Killings in Rwanda and Cambodia ................................................................................................................................................. 172 Joel H. Feigenbaum Major League Security: Overcoming Legal Challenges of Sporting Event Security Systems ................. 197 Jorge Martinez ARTICLE The Ferrini Doctrine: Abrogating State Immunity from Civil Suit for Jus Cogens Violations Natasha Marusja Saputo* ABSTRACT Article 10 of the Italian Constitution incorporates generally recognized principles of international law.1 Thus, State immunity from civil suit in the domestic courts of another Statea principle generally recognized in international lawwould apply in Italy. However, the protection of fundamental human rights is another generally recognized principle in international law and the ostensible conflict between these two principles has resulted in a series of controversial rulings issued by the Italian Court of Cassation. These rulings allow for the abrogation of State immunity from civil suit in the domestic courts of another State for alleged violations of jus cogens or peremptory norms2what this paper will refer to as the Ferrini doctrine. Although the central premise behind the Courts reasoning appeals to the values underlying international law, it is by no means authoritative under the international law regime in which rules and principles are developed through consensus of what is generally recognized. As such, the Italian Court of Cassations decisions are not just controversial they are technically unlawful under customary international law. However, such deviation is the sole means through which customary international law changes and evolves. Were the Italian Court of Cassation to make its reasoning logically consistent and, at this initial stage, less sweeping in breadth, the Ferrini doctrine arguably has the potential to be effectively exported to other States thereby furthering a change in customary international law on State immunity. This paper will: (1) provide a brief survey of some of the Italian Court of Cassations controversial rulings regarding State immunity from civil suit; (2) examine the responses to the decisions from other States and academia to evaluate the validity of such a rule; (3) propose a revised version of the Ferrini doctrine which would enhance its viability and impact on customary international law; and (4) reach a conclusion as to whether such a change is advisable. * LL.M., with Distinction and Deans List Honors, Georgetown University Law Center, May 2011. Recipient of the Thomas B. Chetwood S.J. Prize. J.D. Magna Cum Laude, George Mason University School of Law, May 2010. 1 See Art. 10 Costituzione [Cost.] (It.), available at http://www.senato.it/documenti/repository/istituzione/costituzione_ing lese.pdf (English) (The Italian legal system conforms to the
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