376 Combatants, Brigands, Rebels, and States: The Law of Transnational Terrorism

Since September 11, 2001, transnational terrorism has been treated as both crime and war.  Accordingly, the U.S. and other states have captured and held members of Al Qaeda and associated forces as law-of-war detainees, targeted such individuals in major military operations and surgical strikes on the territories of (certain) third-party states, and have prosecuted suspected members of those groups, for “terrorism” offenses and for “war crimes,” in civilian courts and military tribunals.  This course will explore the reasons for this novel development and consider its ramifications for public international law, the law of war, and U.S. constitutional law.  

The reasons for the peculiar legal posture of transnational terrorism are best understood in the context of broader trends in the history of international law.  In 1880, a leading international law treatise stated as axiomatic that “[p]rima facie, a state is responsible for all acts . . . within its territory by which another state is injuriously affected.”  By 2007, the International Court of Justice, ruling on states’ duties under the Genocide Convention, stressed that the Court did not “purport to find whether . . . there is a general obligation on states to prevent the commission . . . of acts contrary to . . . norms of general international law.”  The intervening century had witnessed a diminution in the recognition and enforcement of interstate duties and an increase in states’ acting directly on alien individuals in foreign territories.  Those trends were reflected in claims to a “protective principle” of extraterritorial criminal jurisdiction over aliens in the nineteenth century, the addition of “targeted sanctions” against aliens abroad at the close of the twentieth century, and the emergence, most recently, of “targeted killing” of—or, more broadly, “armed conflict” against—private actors abroad in the twenty-first century.  
 
The course will examine the implications of these developments for the interstate system itself, the law of war (in particular, the distinction between combatants and civilians that forms the core of the jus in bello), and the structures of the U.S. Constitution governing war, crime, and military jurisdiction.
Course Areas of Practice
International and Comparative Law
Evaluation Methods
Final Exam
Class participation
Course Type
Lecture
Learning Outcomes
Knowledge and understanding of substantive and procedural law
2018
Fall 2018
Course Number Course Credits Evaluation Method Instructor Meeting Day/Times Room

376.01 3
  • Final Exam
  • Class participation
 Madeline Morris MW 2:00-3:25 PM 4046

Since September 11, 2001, transnational terrorism has been treated as both crime and war.  Accordingly, the U.S. and other states have captured and held members of Al Qaeda and associated forces as law-of-war detainees, targeted such individuals in major military operations and surgical strikes on the territories of (certain) third-party states, and have prosecuted suspected members of those groups, for “terrorism” offenses and for “war crimes,” in civilian courts and military tribunals.  This course will explore the reasons for this novel development and consider its ramifications for public international law, the law of war, and U.S. constitutional law.  

The reasons for the peculiar legal posture of transnational terrorism are best understood in the context of broader trends in the history of international law.  In 1880, a leading international law treatise stated as axiomatic that “[p]rima facie, a state is responsible for all acts . . . within its territory by which another state is injuriously affected.”  By 2007, the International Court of Justice, ruling on states’ duties under the Genocide Convention, stressed that the Court did not “purport to find whether . . . there is a general obligation on states to prevent the commission . . . of acts contrary to . . . norms of general international law.”  The intervening century had witnessed a diminution in the recognition and enforcement of interstate duties and an increase in states’ acting directly on alien individuals in foreign territories.  Those trends were reflected in claims to a “protective principle” of extraterritorial criminal jurisdiction over aliens in the nineteenth century, the addition of “targeted sanctions” against aliens abroad at the close of the twentieth century, and the emergence, most recently, of “targeted killing” of—or, more broadly, “armed conflict” against—private actors abroad in the twenty-first century.  
 
The course will examine the implications of these developments for the interstate system itself, the law of war (in particular, the distinction between combatants and civilians that forms the core of the jus in bello), and the structures of the U.S. Constitution governing war, crime, and military jurisdiction.
Grading Basis: Graded

Degree Requirements
Pre/Co-requisites
None
Enrollment Restrictions
None
Spring 2018
Course Number Course Credits Evaluation Method Instructor Meeting Day/Times Room

376.01 2
  • Final Exam
  • Class participation
 Madeline Morris M 2:00-3:50 PM 4044

To understand any body of law, it is useful to understand its origins and development.  To understand international law – a body of law based largely on custom and “incremental development” – the study of its history is especially crucial.  The History of International Law will trace the development of the “Law of Nations” from its roots in the ancient world forward to the modern day.  The course will focus on the development of the core concepts of international law, including sovereignty, state responsibility, jurisdiction, territoriality, and nationality, and will trace the evolution of practice and thought on the field’s perennial quandaries, including the bases of international obligations and the mechanisms of enforcement.  By gaining a cohesive overview of the field’s historical underpinnings, students will be equipped with a firm grounding and framework for analysis of issues in the diverse areas of international law that they may study or in which they may practice.

Grading Basis: Graded

Degree Requirements
Pre/Co-requisites
None
Enrollment Restrictions
None
2017
Spring 2017
Course Number Course Credits Evaluation Method Instructor Meeting Day/Times Room

376.01 3
  • Take-home examination
  • Class participation
 Madeline Morris TuTh 11:00-12:20 PM 4044

To understand any body of law, it is useful to understand its origins and development.  To understand international law – a body of law based largely on custom and “incremental development” – the study of its history is especially crucial.  The History of International Law will trace the development of the “Law of Nations” from its roots in the ancient world forward to the modern day.  The course will focus on the development of the core concepts of international law, including sovereignty, state responsibility, jurisdiction, territoriality, and nationality, and will trace the evolution of practice and thought on the field’s perennial quandaries, including the bases of international obligations and the mechanisms of enforcement.  By gaining a cohesive overview of the field’s historical underpinnings, students will be equipped with a firm grounding and framework for analysis of issues in the diverse areas of international law that they may study or in which they may practice.

Degree Requirements
Pre/Co-requisites
None
Enrollment Restrictions
None

*Please note that this information is for planning purposes only, and should not be relied upon for the schedule for a given semester. Faculty leaves and sabbaticals, as well as other curriculum considerations, will sometimes affect when a course may be offered.