CENTER FOR ETHICS AND THE RULE OF LAW​

Using Law to Fight War

Legal Approaches to Combating Violent Non-State Actors

October 27 -
 29, 2016

Co-sponsored By:

The Conference

Recent challenges in international security posed by two terrorist organizations, Al Qaeda and the Islamic State of Iraq and Syria (ISIS), have highlighted an urgent domestic and foreign policy challenge, namely, how to address the threat posed by violent non-state actors while adhering to the rule of law values that form the core of democratic governance. In view of the seriousness of the security threat these organizations pose, combating violent extremism has become the highest national security priority among the U.S. and its allies in recent years.  Yet the legal framework for conducting operations of this magnitude against non-state actors has never been clearly identified.  In order for war to be constrained by law, the rules by which all parties engage must be publicly known, clearly articulated, and consistently applied. Legal scholars and policymakers, however, have had difficulty adapting existing legal frameworks, which focus on relations among states, to the new demands on military practice, a problem made worse by the rapidity of the changes within contemporary armed conflict. With the current project, the Center for Ethics and the Rule of Law (CERL) seeks to sharpen the understanding of policymakers and academics regarding the status of non-state actors under the Law of Armed Conflict (LOAC), and to contribute to the clarification, articulation, and dissemination of a common legal and ethical framework to guide military and political leaders in asymmetric conflict.

LOAC is organized around the assumption that parties to an armed conflict are “combatants,” meaning that they are members of a state military acting in the name of that state.  Norms of conduct are unclear with regard to non-state actors, and there are few consistent legal principles to provide guidance.  The absence of a clear alternative to traditional law of war principles, coupled with the need for a strong defensive response to the threat of terrorism, has a deleterious effect on the maintenance of rule of law values in the current climate, and may also hinder efforts to carry out such a defensive response effectively.  

At present the range of options to address the problem of non-state actors under International Humanitarian Law (IHL) is rather limited:  the response thus far has been nearly entirely of a military nature, where the model of military intervention itself takes the form of traditional state-based conflict.  Non-state actors like members of ISIS and Al-Qaeda, however, are not agents of an organized state-run military.  Under traditional principles of LOAC, they are more like civilians engaged in criminal activity than like combatants in the traditional sense.  Yet there has been little exploration of whether enforcement of criminal law norms might be an effective alternative or adjuvant to high level military intervention.  This project seeks to assess the promise of novel legal alternatives in fighting international terrorist organizations, with the aim of developing, disseminating, and helping to implement such policy alternatives.  

A prominent alternative to top-down military action is provided by the domestic criminal law paradigm involving multi-state cooperation, such as the U.S. has previously employed in the War on Drugs. A significant obstacle to this model lies in the absence of a legal basis for crossing national boundaries of co-equal sovereign states for law enforcement purposes.  Efforts to do so are often opposed as violations of international sovereignty. Nor can domestic law enforcement act with the speed and widespread coordinated effort among other nations to accomplish threat reduction on the level that Al Qaeda and ISIS make necessary. CERL’s current project proposes to explore whether an international criminal law framework can provide a viable alternative to both the military and the domestic law frameworks, or whether an integrated international criminal law and military collaboration might be envisioned to address these challenges.  

A number of subtopics will structure the conference. These include clearly identifying and examining the following: the problems posed by non-state actors in international security and the rule of law, the drawbacks of attempting to fit such cases into a traditional military framework and just war paradigm, the challenges raised by domestic prosecutions, the possibility and limits of trying non-state actors at the International Criminal Court, the limits and weaknesses of the ad hoc tribunal model, the precedents set by and lessons to be learned from the military court model, and the promise of using successful international collaborations addressing terrorist networks, along with the legal frameworks applied in such instances, as a model to confront other international law enforcement challenges. The precedent of civil legal action against violent non-state actors will also be considered, using the Klinghoffer family’s lawsuits against the Palestinian Liberation Organization, following the murder of Leon Klinghoffer aboard the PLO-hijacked Achille Lauro cruise liner, as a case study. CERL approaches these topics against the backdrop of an additional challenge, namely the fragility of the US’s credibility internationally as a leader and a force for shaping norms, following what many see as American violations of the rule of law leading up to and succeeding the US invasion of Iraq in 2003. The military court model may have contributed to this perceived diminution of US legitimacy as well as impaired the ability of the U.S. to provide moral leadership internationally, and this too is topic CERL will address.  

Additionally, both jurisdictional and substantive legal issues are raised by the prosecution of non-state actors. For example, what law applies to a non-state actor that is persecuting individuals of many nationalities or ethnicities?  This falls outside the rubric of current international law. Would international law need to be interpreted in a new manner to allow the prosecution of an entity like ISIS, or would new laws, a new code, have to be drafted?  These questions prompt not only an examination of extant efforts to investigate and prosecute non-state actors but also the need for thinking outside of the well-worn pathway of military action from a distance.  Recent efforts at fighting ISIS, for example, have focused on disrupting its funding apparatus.  ISIS has had widespread success in financing its operations through unlawful activity: through the seizure of oil fields, the looting of antiquities, and the subsequent black market sales of seized oil and artifacts.  What framework is likely to be most effective—pragmatically, ethically, and legally—for tracing and disrupting the funding operations of non-state actors like ISIS?

The ultimate goal of Using Law to Fight Terror is to enhance the effectiveness of our current approach by (a) exploring the merits of different frameworks for responding forcefully to the threats posed by non-state actors while remaining constrained by ethical principles and rule of law values; (b) identifying the current challenges that confront us in our current reliance on military action; and (c) identifying alternative approaches to the security threat posed by non-state actors, ones developed within a legal framework, though perhaps implemented with military aid to civilian authorities.  CERL will bring together a wide and prominent group policymakers, highly placed military leaders, and scholars from a wide variety of different disciplines to collaborate in the development and implementation of strategic complements to current military practice in confronting violent non-state actors.

This event is co-sponsored by the Perry World House, the University of Pennsylvania’s new university-wide hub for international activities, the University of Pennsylvania’s Center for Advanced Research in Global Communication, the University of Pennsylvania’s Penn Global program, and The Carol and Lawrence Zicklin Center for Business Ethics Research at the Wharton School.

Schedule

Location: Perry World House University of Pennsylvania, 3803 Locust Walk, Philadelphia, PA
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THURSDAY, OCTOBER 27

4:00 pm – 4:30 pmRegistration
4:30 pm – 6:30 pmKeynote Panel — Open to the PublicUsing Law to Fight Terror:  Can the Law Create Credible Disincentives to Extremist Violence?Panelists: Brig. Gen. John Baker,  Patricia V. Sellers, Brig. Gen. Charles PedeDr. Abbas KadhimSince 9/11, the predominant response to Al-Qaeda and later ISIS by the U.S. and its allies has been military in nature, whether aerial bombardments or targeted killing operations conducted in theater or by remotely piloted drones.  A distinguished group of experts will explore using the law to create alternative or supplementary methods for addressing violent extremism on the part of non-state actors.  Options range from civil suits to hold states and organizations sponsoring terrorism accountable, to local and international criminal trials, to using legal regulations to freeze terrorist assets and stem the flow of funds to terrorist organizations, to more intangible methods affecting hearts and minds that emphasize rule of law and ethical values as a set of ideals.  This panel will address these themes in an interdisciplinary conversation among experts with a wide range of expertise relating to terrorism and the rule of law.
6:30 pm – 7:30 pmCocktail Reception, Open to the Public
FRIDAY, OCTOBER 28
8:30 am – 9:15 amBreakfast
9:15 am – 9:30 amWelcome Remarks: Bill Burke White, Professor of Law and Inaugural Director of Perry World House, Professor Claire Finkelstein, Founder and Director of CERL, Algernon Biddle Professor of Law
9:30 am – 10:45 amSession 1:  Stemming the Tide of Extremism: The Role of Democratic Values and the Rule of LawModerator: Prof. Claire FinklesteinIn the wake of 9/11 the U.S. took the lead in crafting a military strategy against al-Qaeda and its affiliates, and the same with the more recent emergence of ISIS.  Yet the world continues to see a steady influx of recruits to Jihadism, which military action appears to diminish.  This Session will ask the question whether adherence and dissemination of rule of law values might provide an alternative ideology whose attractions might rival those of Islamic extremism.  It will also consider the clash of ideals that exists among different extremist groups in the Middle East, and it will ask whether rule of law values might be presented to potential extremists in a way that is culturally sensitive and hence maximally attractive.  Finally we will consider the concept of non-state actor organizations with state-like qualities, and ask at what point a large scale organization of non-state actors becomes a state?  When can we recognize that a caliphate is declared and is it a state under customary international law?
10:45 am – 11:15 amBreak
11:15 am – 12:30 pmSession 2:  From the PLO to Saudi Arabia: The Effectiveness Using Civil Suits to Combat State-Sponsored and Organizational TerrorismModerator: Prof. William Burke-WhiteOver time, there have been suits by victims of Hezbollah, the PLO, and most recently the victims of 9/11 who will now, with the passage of the JASTA bill have the right to sue the Saudi government for the losses they sustained during the attacks on the World Trade Center and on Flight 93.  Is the threat of civil suits likely to provide a disincentive to states and organizations sponsoring terrorism?  What are the potential risks inherent in allowing such suits to go forward? What are other means open to cutting off the funding of terrorism? To what degree is a group like ISIS reliant on the funding provided by other sovereign nations and outside organizations?
12:45 pm – 2:00 pmLunchPOD, 3636 Sansom St, Philadelphia, PA 19104
2:15 pm – 3:45 pmSession 3:  Following the Money:  Identifying and Combating Threat FinancingModerator: Mr. Kevin GovernA critical aspect of combating terrorism is identifying and attacking sources of funding to terrorist organizations.  Taking ISIS as a case study, this Session will discuss the structure of ISIS financing and how can it be targeted. What role do oil sales, black markets in cultural property and control of archeological sites play in the funding of ISIS? How much of ISIS’ finances are externally generated and how much internal?  What are the constructs that ISIS has created to gather and distribute its funds? What has the U.S. and its allies done to combat threat financing in recent years?
3:45 pm – 4:00 pmBreak – Walk to Penn Law for Keynote
4:30 pm – 6:30 pmKeynote – Open to PublicOld Laws, New Wars: International Law in an Era of TerrorismSecretary William Lietzau, former Deputy Assistant Secreatry of Defense for Rule of Law and Detainee Policy, will discuss the role of international law and the rule of law in combating terrorism.Commentary will be given by Andrew T. Cayley, CMG QC, United Kingdom’s Director of Service Prosecutions and former Prosecutor of the Cambodian Tribunal, ICC, and ICTYPenn Law Golkin 100, Michael A. Fitts Auditorium
6:30 pm – 7:30 pmCocktail Reception – Invited Participants Only
Penn Law
7:30 pm – 9:30 pmDinner – Invited Participants Only
Penn Law
SATURDAY, OCTOBER 29
8:30 am – 9:15 amBreakfast
9:15 am – 10:30 amSession 4:   Prosecuting Terrorists: Lessons Learned From Military Commissions, Article III Courts, International Courts and Ad Hoc TribunalsModerator: Mr. Nelson ThayerThis Session will review different efforts to prosecute violent non-state actors and compare the success of these efforts across different fora.  Where did the US Military commissions fail and where did they succeed, and how do they compare to prosecutions in Article III courts?   What is the track record of prosecutions of terrorists outside the U.S., and should we encourage local prosecution or favor our own processes?  Domestic and foreign prosecutions should also be compared with prosecutorial efforts in the International Criminal Court (ICC), where the court cannot prosecute a non-state actor without a party state’s referral.  Could the ICC handle such a case and what are the factors that slow down and obstruct the ICC’s path to justice?  The Yugoslav Tribunal (ICTY) has been considered overall a success while the Lebanon tribunal is struggling without any arrests.  Is the ICTY model generally superior as applied to non-state actors?  Additional questions about prosecuting war crimes are whether such prosecutions truly bring peace to survivors and their families or whether “truth and reconciliation” commissions are to be preferred.  Also, when should such prosecutions should take place?  Should we seek to impose justice while battles are still raging?
10:30 pm – 11:00 amBreak
11:00 am – 12:45 pmSession 5: Prosecuting Perpetrators of Sexual Violence :  Can the Criminal Law Be an Effective Deterrent of Sexual Violence in War?How can the perpetrators of horrific sex crimes against women in armed conflict and by extremist groups be deterred?  Does holding perpetrators of international sex crimes contribute to that deterrence, or are such trials largely symbolic efforts with no deterrent value? What justice is available for women who willingly become ISIS brides and then are held as sex slaves for soldiers?The prosecution of sexual violence began with the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR).  This session will consider what varied between these courts.  What can be learned from the Bemba case?  How did the International Criminal Court (ICC) differ from the ICTY and the ICTR, and why was the latter able to hold a senior military leader responsible for the sex crimes of his low level subordinates?  This session will discuss the plight of the Yazidi women among other examples.
12:45 pm – 2:15 pmLunch Time Keynote:
Jessica Stern, Author of ISIS: State of Terror, Terror in The Name of God:
Why Religious Militants Kill, and The Ultimate Terrorists
Wharton, Colloquium Level, 8th Floor, Huntsman Hall
2:15 pm – 3:30 pmSession 6: Looking in the Mirror: Are There Benefits to Domestic Adherence to the Rule of Law in the Fight Against Terrorism?Moderator: Mr. Adam ThurschwellThis session will examine the merits of engaging in domestic prosecutions of individuals suspected of war crimes and crimes against humanity.  What are the costs and benefits of engaging in such prosecutions and what has experience taught us about their merits?  The session will examine recent efforts in the UK to bring soldiers charged with war crimes to justice, and address how these efforts would fare in the U.S. and in other allied nations.  If such prosecutions are potentially effective, what challenges do we face in carrying them out?  If they are costly, what do we risk by failing to prosecute our own?  Finally, if domestic prosecutions are valuable, should these be military court cases or should these cases be handled by a civilian prosecutor?

Participants

Major General John D. Altenburg (ret.)

Of Counsel, Greenberg Traurig LLP

Mr. Joshua Andresen

Robina Human Rights Fellow, Yale Law School

Professor Tom Baker

William Maul Measey Professor of Law and Health Sciences, University of Pennsylvania Law School

Brigadier General John Baker

, Chief Defense Counsel, Military Commissions Defense Organization, Guantanamo Bay

Professor Michael Boyle

Associate Professor of Political Science, LaSalle University

Lieutenant Colonel Bailey Brown

United States Army, JAG Corps

Professor William Burke-White

, Director, Perry World House, University of Pennsylvania Law School

Professor Seth Cantey

Assistant Professor of Politics, Washington & Lee University

Mr. Andrew J. Carswell

Regional Delegate to the Armed and Security Services of Southern Africa, International Committee of the Red Cross

Mr. Sean Carter

Esq., Cozen O’Connor

Mr. Andrew T. Cayley

GMG Q.C., Director of Service Prosecutions for the United Kingdom.

Ms. Andrea M. Cayley

, CERL Program Director, University of Pennsylvania Law School

Mr. William R. Craven

Federal Systems Inc.; CERL Executive Board

Professor John C. Dehn

Assistant Professor, Loyola University School of Law

Ms. Arlene Fickler

Esq., Schnader Attorneys at Law; CERL Executive Board

Professor Claire Finkelstein

Algernon Biddle Professor of Law and Professor of Philosophy, University of Pennsylvania; CERL Founder & Director

Professor Christopher Fuller

Lecturer in History, University of Southampton

Professor Gloria Gaggioli

Assistant Professor, University of Geneva

Professor Kevin H. Govern

Professor of Law, Ave Maria School of Law; CERL Executive Board

Mr. Paul G. Haaga, Jr., Esq.,

Executive Vice-President, National Public Radio; CERL Executive Board Chair

Professor Samuel Helfont

Lecturer, International Relations Program, University of Pennsylvania School of Arts and Sciences

Abbas Kadhim, Ph.D.

Senior Foreign Policy Fellow, Foreign Policy Institute, SAIS – Johns Hopkins

Ms. Ilsa Klinghoffer

Leon and Marilyn Klinghoffer Memorial Foundation

Ms. Lisa Klinghoffer

Leon and Marilyn Klinghoffer Memorial Foundation

Senior Researcher Dustin A. Lewis

, Harvard Law School Program on International Law and Armed Conflict

Secretary William Lietzau

Former Deputy Assistant Secretary of Defense Rule of Law & Detainee Policy

Professor Duncan MacIntosh

Professor and Chair of the Department of Philosophy, Dalhousie University; CERL Executive Board

Professor Barak Mendelsohn,

Associate Professor of Political Science, Haverford College

Mr. Alberto Mora

Senior Fellow, Carr Center for Human Rights; John. F. Kennedy School of Government, Harvard University; former U.S. Navy General Counsel; CERL Executive Board

Professor Christopher Morris

Chair, Department of Philosophy, University of Maryland, CERL Executive Board

Professor Madeline Morris

Professor of Law, Duke Law

Professor Timothy Nichols

, Duke Sanford School of Public Policy

Professor Jens D. Ohlin

Associate Dean & Professor of Law, Cornell Law School; CERL Executive Board

Brigadier General Charles N. Pede

Commanding General and Commandant,The Judge Advocate General’s Legal Center and School, The Judge Advocate General [JAG], United States Department of the Army.

Lieutenant Colonel Douglas A. Pryer

Strategic Planner, Middle East Directorate, Joint Staff J-5

Professor Connie Rosati

Professor of Philosophy, University of Arizona; CERL Executive Board

Professor

 Evan R. Seamone, Mississippi College of Law; Senior Defense Counsel, Army Reserve

Ms. Patricia V. Sellers

Special Advisor on International Criminal Law Prosecution Strategies, International Criminal Court (ICC)

Professor Jessica Stern

Pardee School of Global Studies, Boston University

Mr. Nelson Thayer

Assistant Attorney General, Department of Justice

Mr. Adam Thurschwell,

 General Counsel, Military Commissions Defense Organization

Mr. Carlos Uriarte

Associate Deputy Attorney General at the Department of Justice

Brigadier General (ret.) Stephen Xenakis, MD

Physician for Human Rights, CERL Executive Board Member

Mr. Jules Zacher

Attorney at Law; CERL Executive Board

Background Readings

General Theory and Readings

Waltman, G. Prosecuting ISIS. University of Mississippi School of Law, 2014.

List of All Security Council resolutions dealing with Terrorism

Govern, K. The Legal Way Ahead Between War And Peace (Chapter 16) in, Enemy Combatants, Terrorism, and Armed Conflict Law: A Guide to the Issues. 2008.

Terrorism, Counter-Terrorism and International Humanitarian Law. International Committee of the Red Cross, October 2016. 

What Does International Humanitarian Law Say About Terrorism? International Committee of the Red Cross, January 2015.


Article III Courts

Vladek, S. The Supreme Court, the War on Terrorism and the Separation of PowersA.B.A. Human Rights Magazine. Vol. 38, No. 1, 2011.

American Bar Association Standing Committee on Law and National Security. Trying Terrorists in Article III Courts, Challenges and Lessons Learned. 2009.

Donahue, L. Terrorism Trials in Article III CourtsHarvard Journal of Law & Public Policy, Vol. 38, 2015: 105-143.

Baker, J., Defending the Rule of Law: The Military Commissions Defense Organization. The Champion, Sept-Oct. 2015.

Baker, J. Keynote Speech on Military Commissions,  NATSECDEF Conference, Georgetown University, 2016.

Greenburg, K. Case by Case: ISIS Prosecutions in the United States. Center on National Security, Fordham Law, 2016.

Hodgkinson, S. Are Ad-hoc Tribunals an Effective Tool for prosecuting International Terrorism Cases? Emory International Law Review, Vol. 24, 2010: 515-525.

Waters, T. Yezidis v. ISIS at the ICC: Why the fight for Genocide Charges is an Uphill BattleForeign Affairs, Mar. 29, 2016.

SQ Press, Closing Guantanamo, Sept. 30, 2016


 U.S. Common Law Regarding Guantanamo

Rasul v. Bush, 542 U.S. 466 (2004)

Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

Hamdan v. Rumsfeld, 548 U.S. 557 (2006)

Boumediene v. Bush, 553 U.S. 723 (2008)

US Criminal Prosecutions Regarding Abu Ghraib

U.S. v. Harman, 66 M.J. 710 (1965)

U.S. v. Graner, 66 M.J. 104 (2010)

U.S. v. Smith, 68 M.J. 316 (2010)

U.S. v. England, WL 6842645 (2009)

U.S. Common Law regarding U.S. Detainees and Right to Due Process

Ex parte Milligan, 71 U.S. 2 (1868)

Ex Parte Quirin, 317 U.S. 1 (1942)

Johnson v. Eisentrager, 339 U.S. 763 (1950)

Braden v. 30thJudicial Circuit of Kentucky , 410 U.S. 484 (1973)

Rumsfeld v. Padilla, 542 U.S. 426 (2004)

U.S. Common Law Regarding Judicial Limits on Executive War Powers

Prize Cases, 67 U.S. 635 (1863)

In Re: Yamashita, 327 U.S. 1 (1946)

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

Domestic Adherence to the Rule of Law in the Fight Against Terrorism

Apuzzo, M., Fink, S., & Risen, J. How US Torture Left a Legacy of Damaged Minds, N.Y. Times, Oct. 9, 2016

Johnson, D., Mora, A., & Schmidt, A. The Strategic Costs of Torture: How Enhanced Interrogation Hurt America, Foreign Affairs, September/October 2016.

Wagstaff, R. Terror Detentions and the Rule of Law: US and UK Perspectives, in The Rule of Law, Chapter 5: 114-146. 2014.

Aronofsky, D. The War on Terror: Where We Have Been, Are, and Should Be Going. Denver Journal of International Law & Policy, Vol. 40, 2011.


International Prosecutions Regarding Illegal Detentions and Torture

Rodriguez v. Honduras (1988)

Delalic Case (1997)

Pinochet (2000)

Scilingo Cases (2001) 

Al-Adsani v. United Kingdom (2001)


Ad Hoc Courts

 Updated Statute of the International Criminal Tribunal for the Former Yugoslavia. 2009.

Akhavan, P., et al. The Contribution of Ad Hoc Tribunals to International Humanitarian Law, American University. International Law Review,. Vol. 13, No. 6, 1998: 1509-1539.

Handbook for the Special Tribunal for Lebanon, 2008.

ICC

ICC Has No Jurisdiction to Prosecute ISIS Despite “Crimes of Unspeakable Cruelty”, The Guardian, 2015.

El Shahed, S. Prosecuting ISIS poses Challenges to International Justice, Al Arabiya News, 2014.

Morris, M. High Crimes and Misconceptions: The ICC and Non-Party StatesLaw and Contemporary Problems. Vol. 64, No. 1, 2001: 13-66.

Asymmetric War

Mazzar, M. The Folly of Asymmetric WarThe Washington Quarterly, Vol. 31, No. 3, 2008: 33-53.


Non State Actors, 76 Int’l L. Ass’n Rep. Conf. 686 (2014)
Non State Actors, 75 Int’l L. Ass’n Rep. Conf. 658 (2012)
Non State Actors, 74 Int’l L. Ass’n Rep. Conf. 630 (2010)

For all ILA docs: http://heinonline.org/HOL/Index?collection=intyb (Subscribers only)

Beytenbrod, S. Defining Aggression: An Opportunity to Curtail the Criminal Activities of Non-State Actors. Brooklyn Journal of International Law, Vol. 36, No.2, 2011: 1-19.

Wood, G. What ISIS Really Wants. The Atlantic, 2015.

McCants, W. Islamic Scripture is Not the Problem. Foreign Affairs, 2015. 

Stern, J., and Berger, J.M.  ISIS: The State of Terror. 2015.

McInnis, K. Coalition Contributions to Countering the Islamic State. Congressional Research Service. April, 2016.

Page, Rob. ISIS and the Sectarian Conflict in the Middle East. House of Commons Library. March, 2015.

Statehood

Khatab, S. The Power of Sovereignty: The Political and Ideological Philosophy of Sayyid Qutb. Routledge Studies in Political Islam, First Edition. 2006.

Weber, C. Reconsidering Statehood: Examining the Sovereignty/Intervention BoundaryReview of International Studies, Vol. 18, No. 3, 1992: 199-216.

Lara, R. The Problem of Sovereignty, International Law and Intellectual ConscienceJournal of the Philosophy of International Law, Vol. 5, No. 1,  2014: 1-26.

Grant, T.  Defining Statehood: The Montevidio Convention and its Discontents. Journal of Transnational Law, Vol. 34, 1999: 403-457. 

Lewis, D. Suppressing Foreign Terrorist Fighters and Supporting Principled Humanitarian Action: A Provisional Framework for Analyzing State Practice2015.


Threat Financing

European Commission/US Treasury: Joint Report on Threat Financing. 2013. 


Funding of ISIS

The Center for Analysis of Terrorism, ISIS Financing, 2015.

F.A.T.F. Financing of the Terrorist Organisation Islamic State in Iraq and the Levant (ISIL). 2015.
al-Khatteeb, L. How Iraq’s Black Market in Oil funds ISIS. CNN, 2014.

Oil, Extortion, Crime: Where ISIS gets its money. NBC, 2014.

Davis, J.H. Enforcer at Treasury is First line of Attack against ISIS. The New Work Times, 2014.

Rhodan, M. Treasury Department’s Anti-Terrorism Chief Says cutting off ISIS Fund of High Importance. TIME, 2014.

Di Giovanni, J., Goodman, L., & Sharkov, D. How does ISIS Fund its Reign of Terror? Newsweek, 2014.

Northam, J. UN Security Council Passes Resolution Targeting ISIS Funding, NPR, 2014.

Security Council Resolution 2199. 2015.

Security Council Resolution 2253. 2015. 

Toobin, J. The Legal Logic of the Case Against Hastert. The New Yorker, 2015. 

Friedersdorf, C. Why is it a Crime to Evade Government Scurtiny? The Atlantic, 2015. 

 31 U.S. Code § 5324

United States v. Scanio, 900 F.2d 485 (1990)

Lawsuit against Saudi Arabia

Justice Against Sponsors of Terrorism Act

Justice against Sponsors of Terrorism Act, Pub. L. No. 114-222 (2016)  2040, 105th Cong.

In re Terrorist Attacks on September 1, 2001, No. 03-MDL-1570, slip op. (S.D.N.Y. Sept. 29, 2015) (Opinion Granting The Kingdom of Saudi Arabia and The Saudi High Commission for Relief of Bosnia and Herzegovina Motion to Dismiss)

Foreign Sovereign Immunity United States Law

28 U.S. Code 1603-1611 (1976)

A.L.I. Restatement, Fourth, Foreign Relations Law of the United States- Sovereign Immunity. Tentative Draft No. 1, 2015.

28 U.S. Code 605A (2008)

Purpose of Justice Against State Sponsors of Terrorism Act

Schumer, Cornyn Announce “Justice Against Sponsors of Terrorism Act”. Charles E. Schumer United States Senator for New York, 2015.

Senate Passes Cornyn Bill to Help Victims of Terror Attacks Seek Justice. John Cornyn United States Senator for Texas, 2016. 

Schwartz, F. Senate Passes Bill Permitting 9/11 Victims’ Families to Sue Saudi Arabia. The Wall Street Journal, 2016.

Zengerle, P. Senate Passes Bill Allowing 9/11 Victims to sue Saudi Arabia. Reuters, 2016.

After Rejecting Obama Veto, Lawmakers Now Have Doubts About 9/11 Lawsuit Bill. Fortune, Sept. 30, 2016

Obama Administration’s Response

Graham, D. Why Obama Vetoed the 9/11 Lawsuit Bill. The Atlantic, 2016.

In an Interview With Charlie Rose, President Barack Obama Discusses the Decision to Send More U.S. Troops to Iraq and if the Mysterious 28 Pages of 9.11 Documents Should Remain Classified. CBS News, 2016.

Press Briefing by the Press Secretary Josh Earnest. The White House, 2016.

Saudi Arabia’s Response

Mazzetti, M. Saudi Arabia Warns of Economic Fallout if Congress Passes 9/11 Bill. New York Times, 2016.

Mazzetti, M. Senate Passes Bill Exposing Saudi Arabia to 9/11 Legal Claims. New York Times, 2016.

Justice Against Sponsors of Terrorism Act (JASTA)

August, 2012, Opinion to Judgment Mandate re: Order of District Court on In re Terrorist Attacks on September 11, 2001 (Kingdom of Saudi Arabia et al.)

September 29, 2015, Opinion Granting The Kingdom of Saudi Arabia and The Saudi High Commission for Relief of Bosnia and Herzegovina Motion to Dismiss

June 8, 2016, Brief of Defendants-Appellees The Kingdom of Saudi Arabia and The Saudi High Commission for Relief of Bosnia and Herzegovina Motion to Dismiss

July 25, 2016, Reply Brief for Plaintiffs-Appellants

August 10, 2016, Brief for Plaintiffs Appellants

Other Terrorism Lawsuits


Stempel, J. U.S. Court Voids $655 Million Verdict Against PLO Over Israel attacks. Reuters, 2016.

Sokolow et al v. Palestine Liberation Organization et al, 2nd U.S. Circuit Court of Appeals, No. 15-3135 slip. op. (2d Cir. Aug. 31 2016) 

Rapoport, M. PLO Settles Klinghoffer Suit over Achille Lauro Murder, Wall Street Journal,1997.

Klinghoffer v. PLO, 937 F.2d 44, 19 Fed. R. Serv. 3d (Callaghan) 1277, 1991 AMC 2751, 1991 U.S. App. Decision.

Klinghoffer v. SNC Achille Lauro, 739 F. Supp. 854 (S.D.N.Y. 1990)

Prosecuting Perpetrators of Sexual Violence

Rogers, S. Sexual Violence or Rape as a Constituent Act of Genocide: Lessons from the Ad Hoc Tribunals and a Prescription for the International Criminal CourtGeorge Washington International Law Review, Vol. 48, 2016.

United Nation’s Human Rights Council. “They Came to Destroy’: ISIS Crimes Against the Yazidis.” U.N. Doc. A/HRC/32/CRP.2 (June 15, 2016)

Sellers, P. The Prosecution of Sexual Violence in conflict: The Importance of Human Rights as Means of Interpretation. Guidance Document Office of the United Nations High Commissioner for Human Rights (October 28, 2009).

Required Readings

SESSION 1: STEMMING THE TIDE OF EXTREMISM: THE ROLE OF DEMOCRATIC VALUES AND THE RULE OF LAW

JESSICA STERN AND J.M. BERGER, ISIS: The State of Terror 2015

John C. Dehn,  Transnational Self-Defense: Human Rights-Based Transnational Counterterrorism Norms (abstract)

Claire Finkelstein, Contemporary Armed Conflict and the Non-State Actor (abstract)(article)

Karen Greenberg, Center on National Security at Fordham Law. Case by Case: ISIS Prosecutions in the United States, 2016

Duncan MacIntosh, The Rule of Law and the Laws that Rule: Considerations Towards a Special Status for Rebels (abstract) (article)

“The Islamic Response to the Government’s Nine Accusations”, Joint statement of the 9/11 military commissions accused, 2009.

SESSION 2: FROM THE PLO TO SAUDI ARABIA:  THE EFFECTIVENESS USING CIVIL SUITS TO COMBAT STATE-SPONSORED AND ORGANIZATIONAL TERRORISM

In re Terrorist Attacks on September 1, 2001, No. 03-MDL-1570, slip op. (S.D.N.Y. Sept. 29, 2015) (Opinion Granting The Kingdom of Saudi Arabia and The Saudi High Commission for Relief of Bosnia and Herzegovina Motion to Dismiss)

Justice against Sponsors of Terrorism Act, Pub. L. No. 114-222 (2016)  2040, 105th Cong.

After Rejecting Obama Veto, Lawmakers Now Have Doubts About 9/11 Lawsuit BillFORTUNE, Sept. 30, 2016

Sokolow et al v. Palestine Liberation Organization et al, 2nd U.S. Circuit Court of Appeals, No. 15-3135 slip. op. (2d Cir. Aug. 31 2016) 

Klinghoffer v. PLO, 937 F.2d 44, 19 Fed. R. Serv. 3d (Callaghan) 1277, 1991 AMC 2751, 1991 U.S. App. Decision.

SESSION 3:  FOLLOWING THE MONEY: IDENTIFYING AND COMBATING THREAT FINANCING

The Center for Analysis of Terrorism, ISIS Financing, 2015.

European Commission/US Treasury: Joint Report on Threat Financing. 2013. 



SESSION 4:  PROSECUTING TERRORISTS: LESSONS LEARNED FROM MILITARY COMMISSIONS, ARTICLE III COURTS, INTERNATIONAL COURTS, AND AD HOC TRIBUNALS

Adam Thurschwell, What is a Terrorism Trial? (abstract)

John G. Baker,  Defending the Rule of Law: The Military Commissions Defense Organization, THE CHAMPION, Sept-Oct. 2015

Laura Donohue,  Terrorism Trials in Article III Courts, 38 Harv. J. L. & Pub. Pol. 2015

Seamone, Evan, Counting the Ripples:  The Challenge of Extraterritorial Jurisdiction to Prosecute Non-State Actors (abstract)

Sandra L. Hodgkinson,  Are Ad-hoc Tribunals an Effective Tool for prosecuting International Terrorism Cases? 24 Emory Int’l L. Rev. 515 (2010)

Guenael Mettraux, International Crimes And The Ad Hoc Tribunals 3-4 (2005) (Chapter 1: The Creation and Jurisdiction of the ad hoc Tribunals

Timothy Waters,  Yezidis v. ISIS at the ICC: Why the fight for Genocide Charges is an Uphill Battle, FOREIGN AFFAIRS, Mar. 29, 2016

Excerpts from Al Bahlul v. United States, No. 11-1324, 767 F.3d 1 (D.C. Cir. 2014) 

SESSION 5: PROSECUTING PERPETRATORS OF SEXUAL VIOLENCE :  CAN THE CRIMINAL LAW BE AN EFFECTIVE DETERRENT OF SEXUAL VIOLENCE IN WAR?

Shayna Rogers, Sexual Violence or Rape as a Constituent Act of Genocide: Lessons from the Ad Hoc Tribunals and a Prescription for the International Criminal Court,48 Geo. Wash. Int’l L. Rev. 265 (2016).

United Nation’s Human Rights Council, “They Came to Destroy’: ISIS Crimes Against the Yazidis.” U.N. Doc. A/HRC/32/CRP.2 (June 15, 2016)

Rape and Sexual Violence, Chapter 16, The Geneva Conventions in Context: A Commentary, with Indira Rosenthal, eds. Prof. Clapham, Prof. Geata and Prof. Sassoli, Oxford University Press (2015)

Kevin Govern, Rape As An Act Of Terrorism: Overcoming Impunity With Legal Prescription and International Prosecution. (Abstract)

SESSION 6: LOOKING IN THE MIRROR: ARE THERE BENEFITS TO DOMESTIC ADHERENCE TO THE RULE OF LAW IN THE FIGHT AGAINST TERRORISM?

Matt Apuzzo, Sheri Fink & James Risen, How US Torture Left a Legacy of Damaged Minds, N.Y. TImes, Oct. 9, 2016

Douglas A. Johnson, Alberto Mora & Averell Schmidt, The Strategic Costs of Torture: How Enhanced Interrogation Hurt America, Foreign Affairs, September/October 2016 at 121.

Christopher Fuller, Killing to Save Life: Human Rights Law and the Protection of the Right to Life (article)

Joshua Andresen,  Putting Lethal Force on the Table: How Drones Change the Alternative Space of War and Counterterrorism (article)

ROBERT H. WAGSTAFF, TERROR DETENTIONS AND THE RULE OF LAW: US AND UK PERSPECTIVES 114-146 (2014) (Chapter 5: The Rule of Law)

Press release

CERL CONFERENCE INVESTIGATES LEGAL FRAMEWORKS FOR FIGHTING TERRORISM

Attacks around the world by Al Qaeda and the Islamic State of Iraq and Syria (ISIS) have highlighted the challenge of addressing the threat posed by violent non-state actors while adhering to the rule of law values that form the core of democratic governance. While legal scholars and policymakers have had difficulty adapting existing legal frameworks to the demands of asymmetric warfare, a new project from the Center for Ethics and the Rule of Law (CERL) at the University of Pennsylvania Law School seeks to sharpen the understanding of policymakers and academics regarding the status of non-state actors under the Law of Armed Conflict (LOAC).

On October 27–29, CERL will hold a conference titled Using Law to Fight Terror at the University of Pennsylvania’s Perry World House. In a series of workshop-style, unclassified conversations, alternating with keynote sessions that are open to the public, a diverse and prominent group policymakers, highly placed military leaders, and scholars from a wide array of different disciplines will explore whether international criminal prosecutions and civil suits against countries sponsoring terrorism can provide an effective additional tool in efforts to deter ISIS and other terrorist networks.

“This project seeks to assess the promise of novel strategies in fighting international terrorist organizations, with the aim of developing, disseminating, and helping to implement effective policy alternatives,” said Claire Finkelstein, Algernon Biddle Professor of Law and Professor of Philosophy and Founder and Director of CERL. “We seek particularly to explore using law as a way to fight terror, where adherence to the rule of law can itself provide an effective means of combatting a lawless enemy. Finding the framework that is likely to be most effective — pragmatically, ethically, and legally — for tracing and disrupting the operations of non-state actors like ISIS is an urgent domestic and foreign policy challenge.”

Sessions at the conference will examine: the problems posed by non-state actors in international security and the rule of law, the drawbacks of attempting to fit such cases into a traditional military framework and just war paradigm, the challenges raised by domestic prosecutions, the possibility and limits of trying non-state actors at the International Criminal Court, the limits and weaknesses of the ad hoc tribunal model, the precedents set by and lessons to be learned from the military court model, and the promise of using successful international collaborations addressing terrorist networks, along with the legal frameworks applied in such instances, as a model to confront other international law enforcement challenges.

Prominent participants in the event will include Brigadier General John Baker, Chief Defense Counsel, Military Commissions Defense Organization, Guantanamo Bay; Secretary William Lietzau, Former Deputy Assistant Secretary of Defense Rule of Law & Detainee Policy; General Charles Pede, Commanding General and Commandant,The Judge Advocate General’s Legal Center and School; Patricia Viseur Sellers, Special Advisor on Sexual Violence crimes to the ICC, ICTY, ICTR; and Andrew T. Cayley, GMG Q.C., Director of Service Prosecutions for the United Kingdom, former Chief Prosecutor Cambodia Tribunal, ICTY, ICC.

Co-sponsoring this conference with CERL is Penn’s Perry World House, the University of Pennsylvania’s new university-wide hub for international activities, and The Carol and Lawrence Zicklin Center for Business Ethics Research of the Wharton School.

CERL is a non-partisan interdisciplinary institute dedicated to the preservation and promotion of the rule of law in twenty-first century warfare and national security. The only center of its kind housed within a law school, CERL draws from the study of law, philosophy, and ethics to answer the difficult questions that arise in times of war and contemporary transnational conflicts. It represents the vision of its founder and director, Professor Claire Finkelstein, in uniting scholars and policymakers from various fields in a multi-disciplinary conversation on some of the most challenging issues of our time.

Contact us

For any questions regarding the conference or registration, please contact: Jennifer Cohen at [email protected]

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Using Law to Fight War