Volume I

Introduction and Table of Contents

Professional Articles

Prosecuting the Crime of Aggression In the International Criminal Court
by Johan D. van der Vyver
The crime of aggression was included in the subject-matter jurisdiction of the International Criminal Court (ICC) (Article 5(1)(d) of the ICC Statute), but the competence of the ICC to prosecute aggression was made subject to the adoption of a definition of the crime and of the circumstances under which the ICC could exercise jurisdiction (Article 5(2)). Following years of intensive deliberations, the matter was finally settled by a Review Conference of the International Criminal Court that was held in Kampala, Uganda on May 31 through June 11, 2010.

Bureaucracy and the US Response to Mass Atrocity
by Gregory Brazeal
The U.S. response to mass atrocity has followed a predictable pattern of disbelief, rationalization, evasion, and retrospective expressions of regret. The pattern is consistent enough that we should be skeptical of chalking up the United States’ failures solely to a shifting array of isolated historical contingencies, from post-Vietnam fatigue in the case of the Khmer Rouge to the Clinton administration’s recoil against humanitarian interventions after Somalia. It is implausible to suggest that the United States would have acted to mitigate or end mass atrocities but for the specific historical contingencies that happen to accompany each outbreak of violence. This essay proposes a supplementary explanation for the United States’ history of failed responses to mass atrocity.

Standing Our Ground: A Study of Southeast Asian Counterterrorism Conventions Contributing to a Peaceful Existence
by Major Dennis Hager
Less than a year after the September 11th attacks on New York and Washington D.C., terrorist groups in Southeast Asia carried out a number of high profile attacks in the region. In an area ripe for global terrorism the effects of counter-terrorism conventions can be measured and the possibility of progress in the global war observed. The regional cooperation inherent in these conventions has been crucial to the success of peace for this region, and is especially significant considering the immense cultural and political differences among these nations.

Student Articles

Pulling Back the Covers: Saleh v. Titan Corporation and (Near-) Blanket Immunity for Military Contractors in War Zones
by Ian S. Speir
Private corporations contracting with the U.S. military have been crucial to U.S. war efforts in Iraq and Afghanistan. But, as one might expect, the road to victory is proving to be bumpy. On numerous occasions, military contractors and their employees have been guilty of misconduct, ranging from simple negligence to deliberate, sometimes egregious wrongdoing. When victims try to hold them accountable through remedies provided by state tort law, the question of whether and to what extent contractors in war zones should be liable for their misconduct arises.

PMCs on the High Seas: The Solution to Somali Piracy or a Failure to Learn from History?
by Bryan K. Doeg
The MV Faina, a Ukrainian vessel carrying Soviet-era tanks, artillery, small arms, and other weaponry for delivery to the Kenyan government was hijacked en route by Somali pirates and released in February 2009 after a four and a half month long standoff in exchange for $3,200,000. On April 8, 2009 the American flagged container ship Maersk Alabama was hijacked by pirates off the coast of Somalia, sparking a standoff between the pirates and the US Navy that ended only after Navy SEAL snipers shot three pirates. In November 2009, a second group of pirates attempted another attack on the same vessel but was repelled by armed private security forces aboard the Maersk Alabama who returned fire during the pirates’ assault. In February 2011, an American yacht known as the Quest was hijacked in the same area; negotiations for the release of the four American hostages apparently went badly and the pirates executed all four of their captives before being boarded by American military personnel.

Square Information, Round Categorization: Executive Order 13556 and Its Implementation Challenges
by Austin Harris
The Obama Administration is committed to establishing an unprecedented level of transparency and openness in order to garner the public‘s trust and ensure more effective government. Public access to government information is essential to a democracy, and the ability to share information across federal Executive Branch agencies is critical to the national security of the United States. In theory, President Obama‘s goal of increased openness and transparency in government is well served by the recently-signed Executive Order 13556, which calls for the standardization of Controlled Unclassified Information across the government. The goal of the new, standardized system is to make Controlled Unclassified Information easier to share across agencies and more accessible to the public. However, implementation of Executive Order 13556 faces significant challenges that will frustrate the goals of the Obama Administration, limiting public access and the sharing of Controlled Unclassified Information across the government until those challenges are addressed.

Government Secrets, National Security and Freedom of the Press: The Ability of the United States to Prosecute Julian Assange
by Heather M. Lacey
Julian Assange has gained worldwide fame and notoriety through his role as founder and spokesperson for the whistle-blowing news organization, WikiLeaks. Throughout its existence, WikiLeaks has exposed thousands of classified documents and intelligence related to the national security of the United States and countries throughout the world. Some “leaks” of classified information attributed to WikiLeaks include the publication of thousands of State Department diplomatic cables, the disclosure of classified military documents regarding the wars in Iraq and Afghanistan, and the release of what have become known as the “Guantanamo Files,” a series of classified documents detailing the inner workings of Guantanamo Bay Detention Center. Currently, the Department of Justice is building a criminal case in order to prosecute Assange for the release and publication of classified national security information through the WikiLeaks website.

The Diminishing Free Speech Rights of Military Chaplains in the Aftermath of Repealing “Don’t ask Don’t Tell”
by Elyse Stiner
For many religions homosexuality is a carnal sin. In fact, many religious leaders preach and counsel openly against homosexuality. Many military chaplains support this deeply embedded conviction. The repeal of “Don’t Ask Don’t Tell” creates a clash between these military chaplains and the military‟s interest in eliminating discrimination against homosexuals. In the words of a retired navy chaplain, “Chaplains are entitled to preach whatever they think is necessary … but they certainly wouldn’t be allowed to go around speaking against homosexuality … That would be counterproductive to good order and discipline.”

Terrorism Financing: The Rise and Fall of Counter-Terrorism Policy Primacy
Terrorism Financing and State Responses by Jeanne K. Giraldo, reviewed by Jonathan Vollinger
Throughout this review I will offer a critique of the book in several forms. In addition to the general synopses of the viewpoints expounded throughout the book, I insert my own opinions which corroborate, and, in a few cases, contradict the opinions of the authors. For the most part, as this is a book review, I will critique the main author’s (Giraldo) strategy, recommendations, and of course, her success or failure in her attempts to achieve her stated goal: a comprehensive assessment of the nature of terrorism financing, government responses, and the efficacy of both. However, the structure of State Responses makes it necessary to also summarize and critique the individual contributions as well. Because we are approaching four years since the inception of State Responses, I make an effort to scrutinize the accuracy, or lack thereof, of any predictions made by the contributors.

Snyder v. Phelps

Snyder v. Phelps: The Demise of Constitutional Avoidance
by Emily Horowitz
Over 200 years ago when the First Congress of the United States set forth the Bill of Rights, the application of the First Amendment was a seemingly simple task. This, however, proved not to be the case.

Snyder v. Phelps: Finding the Light at the End of the Tort
by Brendan Mackesey
Perplexing. This word aptly describes First Amendment jurisprudence surrounding tort claims. A number of indeterminable standards masquerade as doctrine for such claims: Is the plaintiff a public or private party? What of the defendant? Does the speech at issue regard a matter of public concern? Is it an assertion of fact? Was the plaintiff in a “public place?” Was he or she part of a “captive audience?” In Snyder v. Phelps, the Supreme Court has a chance to clarify some of these benchmarks. However, the Court must be wary of the influx of tort litigation its holding could trigger.

Snyder v. Phelps: The Destruction of the Equilibrium Between the Right to Free Speech and the Right to Protection From It
by Stewart F. Berkeley
Since the landmark decision of New York Times Co. v. Sullivan, courts have struggled with the crucial goal of balancing First Amendment freedom of speech rights with the “right to avoid unwelcome speech.” However, this fragile balance has been heavily disrupted by the 2009 decision of Snyder v. Phelps. In Snyder, the Fourth Circuit eliminated all potential avenues of recovery to victims who are assaulted with any hateful speech that contains “hyperbolic rhetoric” or can‟t be proven false. Thus, a grieving family (who had just suffered the horrific loss of a child and only wants to mourn in peace) can’t recover for emotional distress when their funeral services are disrupted by bigoted protestors.