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The Army Lawyer Headquarters, Department of the Army Department of the Army Pamphlet 27-50-432 May 2009 Articles Foreword Lieutenant Colonel Michael O. Lacey Remarks to the 2009 Samuel Dash Conference on Human Rights Rule of Law in the Context of Military Interventions Jeh Charles Johnson Seven Detainee Operations Issues to Consider Prior to Your Deployment Major Olga Marie Anderson & Major Katherine A. Krul Rule 99 of the Customary International Humanitarian Law Study and the Relationship Between the Law of Armed Conflict and International Human Rights Law Major J. Jeremy Marsh The Expansive Definition of “Protected Persons” in the War Crime Jurisprudence Major Shane Reeves Cluster Munitions: Wonder Weapon or Humanitarian Horror? Lieutenant Colonel Michael O. Lacey Don’t Call It a SOFA! An Overview of the New U.S.-Iraq Security Agreement Commander Trevor A. Rush Hostile Outsider or Influential Insider? The United States and the International Criminal Court Colonel Stuart W. Risch CLE News Current Materials of Interest Editor, Captain Alison M. Tulud Assistant Editor, Major Ann B. Ching Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly Lawyer welcomes articles from all military and civilian authors on topics of by The Judge Advocate General’s Legal Center and School, Charlottesville, interest to military lawyers. Articles should be submitted via electronic Virginia, for the official use of Army lawyers in the performance of their mail to [email protected]. Articles should follow legal responsibilities. Individual paid subscriptions to The Army Lawyer are The Bluebook, A Uniform System of Citation (18th ed. 2005) and the available for $45.00 each ($63.00 foreign) per year, periodical postage paid at Military Citation Guide (TJAGLCS, 13th ed. 2008). No compensation can Charlottesville, Virginia, and additional mailing offices (see subscription form be paid for articles. on the inside back cover). POSTMASTER: Send any address changes to The Judge Advocate General’s Legal Center and School, 600 Massie Road, The Army Lawyer articles are indexed in the Index to Legal Periodicals, ATTN: ALCS-ADA-P, Charlottesville, Virginia 22903-1781. The opinions the Current Law Index, the Legal Resources Index, and the Index to U.S. expressed by the authors in the articles do not necessarily reflect the view of Government Periodicals. The Army Lawyer is also available in the Judge The Judge Advocate General or the Department of the Army. Masculine or Advocate General’s Corps electronic reference library and can be accessed feminine pronouns appearing in this pamphlet refer to both genders unless the on the World Wide Web by registered users at context indicates another use. http://www.jagcnet.army.mil/ArmyLawyer. The Editor and Assistant Editor thank the Adjunct Editors for their Address changes for official channels distribution: Provide changes to invaluable assistance. The Board of Adjunct Editors consists of highly the Editor, The Army Lawyer, The Judge Advocate General’s Legal Center qualified Reserve officers selected for their demonstrated academic and School, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, excellence and legal research and writing skills. Prospective candidates Virginia 22903-1781, telephone 1-800-552-3978 (press 1 and extension may send Microsoft Word versions of their resumes, detailing relevant 3396) or electronic mail to [email protected]. experience, to the Technical Editor at TJAGLCS-Tech- [email protected]. Articles may be cited as: ARMY LAW., [date], at [first page of article], [pincite]. The Editorial Board of The Army Lawyer includes the Chair, Administrative and Civil Law Department; and the Director, Professional Writing Program. The Editorial Board evaluates all material submitted for publication, the decisions of which are subject to final approval by the Dean, The Judge Advocate General’s School, U.S. Army. The Army Articles Foreword Lieutenant Colonel Michael O. Lacey ................................................................................................................................... 1 Remarks to the 2009 Samuel Dash Conference on Human Rights Rule of Law in the Context of Military Interventions Jeh Charles Johnson .............................................................................................................................................................. 2 Seven Detainee Operations Issues to Consider Prior to Your Deployment Major Olga Marie Anderson & Major Katherine A. Krul ..................................................................................................... 7 Rule 99 of the Customary International Humanitarian Law Study and the Relationship Between the Law of Armed Conflict and International Human Rights Law Major J. Jeremy Marsh ........................................................................................................................................................ 18 The Expansive Definition of “Protected Persons” in the War Crime Jurisprudence Major Shane Reeves ............................................................................................................................................................. 23 Cluster Munitions: Wonder Weapon or Humanitarian Horror? Lieutenant Colonel Michael O. Lacey .................................................................................................................................. 28 Don’t Call It a SOFA! An Overview of the New U.S.-Iraq Security Agreement Commander Trevor A. Rush ................................................................................................................................................. 34 Hostile Outsider or Influential Insider? The United States and the International Criminal Court Colonel Stuart W. Risch ........................................................................................................................................................ 61 CLE News .................................................................................................................................................................. 90 Current Materials of Interest .................................................................................................................................. 99 Individual Paid Subscriptions to The Army Lawyer ........................................................................ Inside Back Cover MAY 2009 • THE ARMY LAWYER • DA PAM 27-50-432 Foreword Lieutenant Colonel Michael O. Lacey Professor and Chair, International and Operational Law Department The Judge Advocate General’s Legal Center and School Charlottesville, Virginia Welcome to the International and Operational Law edition of The Army Lawyer!1 This issue contains not only relevant articles on current International and Operational Law topics, but also a transcript of the remarks given by the new Department of Defense General Counsel―Mr. Jeh Johnson―at a recent Rule of Law symposium co-sponsored by Georgetown University and the University of Virginia School of Law as well as the The Judge Advocate General’s Legal Center and School.2 The articles in this edition cover a wide variety of topics from international agreements to detainee issues at the brigade level. Major Marie Anderson and Major Katherine Krul have written an excellent primer for use by Judge Advocates assigned to a brigade staff that will inevitably face detainee issues.3 Major Jeremy Marsh has written a superior overview of Rule 99 of the ICRC study of Customary International Humanitarian Law which examines the relationship between the Law of War and Human Rights law.4 Major Shane Reeves revisits the Tadic case, a much overlooked war crimes decision that described a more expansive definition of what it means to be a “protected person” of the Fourth Geneva Convention.5 As the Chair of the Department, I chose the easiest topic, a quick overview of the new Oslo Treaty banning cluster munitions and what it might mean for the U.S. military.6 Our Vice-Chair, Commander Trevor Rush, has written an excellent practitioner’s summary of the new Security Agreement with Iraq that should be required reading for anyone deploying to Operation Iraqi Freedom in the next year.7 Finally, the issue concludes with an excellent piece that looks to the future of the law of war. Colonel Stuart Risch looks at the United States and the International Criminal Court.8 As always, it is hoped that these articles will have some relevance to our most important audience―the Judge Advocate serving in the field. It is our honest belief that the best Operational Law attorney is the general practitioner, the individual who can give timely and accurate targeting advice one minute and spot fiscal law implications of the Commander’s Emergency Response Program (CERP)9 expenditures the next. Hopefully, the articles in this edition of The Army Lawyer serve a greater purpose to strengthen the foundational knowledge for our Judge Advocates on key operational law issues. 1 The International and Operational Law Department is composed of eight resident Judge Advocates: Lieutenant Colonel Michael O. Lacey (Chair); Captain Brian J. Bill (USN); Commander Trevor A. Rush USN); Lieutenant Colonel J. Porter Harlow (USMC), Major Christopher R. Brown (ARNGUS), Major Olga Marie Anderson; Major J. Jeremy Marsh (USAF); and Major Shane R. Reeves, and our Administrative Assistant Ms.Terri Thorne. The Department would like to thank our outside contributing authors,
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