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America is at war with terrorism. Terrorists must be brought to justice. We hear these phrases together so often that we rarely pause to reflect on the dramatic differences between the demands of war and the demands of justice, differences so deep that the pursuit of one often comes at the expense of the other. In this book, one of the country's most important legal thinkers brings much-needed clarity to the still unfolding debates about how to pursue war and justice in the age of terrorism. George Fletcher also draws on his rare ability to combine insights from history, philosophy, l

"Advancing a bold theory of the relevance of tort law in the fight against human rights abuses, celebrated US law professor George Fletcher here challenges the community of international lawyers to think again about how they can use the Alien Tort Statute. Beginning with an historical analysis Fletcher shows how tort and criminal law originally evolved to deal with similar problems, how tort came to be seen as primarily concerned with negligence and how the Alien Tort Statute has helped establish the importance of tort law in international cases. In a series of cases starting with Filartiga and culminating most recently in Sosa, Fletcher shows how torture cases led to the reawakening of the Alien Tort Statute, changing US law and giving legal practitioners a tool with which to assist victims of torture and other extreme human rights abuses. This leads to an examination of Agent Orange and the possible commission of war crimes in the course of its utilisation, and the theory of liability for aiding and abetting the US military and other military forces when they commit war crimes. The book concludes by looking at the cutting-edge cases in this area, particularly those involving liability for funding terrorism, and the remedies available, particularly the potential offered by the compensation chamber in the International Criminal Court."--Bloomsbury Publishing

Americans hate and distrust their government, but, at the same time, love and trust their government. These contradictory attitudes are resolved by Fletcher's novel interpretation of constitutional history. He says that the US has 2 constitutions - one catering to freedom and fear, the other to the need for security and social justice.

Intellectual work on the law of war suffers from chronic isolation. The commentators on the Rome Statute are international lawyers who pay no attention to the work either of theoretical criminal lawyers or of the philosophers. The philosophers – Jeff McMahan as an outstanding example – ignore the legal details that dominate the books of the international lawyers. Criminal lawyers have much to contribute to the discussion of international law, but they seem not to be interested. Writers with limited audiences, living in closed worlds, are unaware of what they have to learn from those with a different take on the field. For a dramatic illustration of these differences in discourse, consider the way in which McMahan positions his new book, The Morality and Law of War in the intellectual tradition. He thinks of his work as part of "just war theory" – a discipline that supposedly dates back to the Greeks, but found its finest expression in the Christian writers from Saint Augustine to Thomas Aquinas. After Michael Walzer revived the field with his book Just and Unjust Wars in 1977, a cottage industry grew up around the notion of "just war theory." The writers are philosophers who seem to be unaware that the judges of the International Criminal Tribunal for the former Yugoslavia (ICTY) or the commentators on the International Criminal Court (ICC) would be wary of referring to "just war theory." Even if the judges knew what this philosophical theory was, it would strike them as irrelevant to the legal analysis of jus ad bellum and jus in bello. Perhaps they would be right. The thesis of this article is that while other principles of morality apply, such as reciprocity and the responsibility of commanders and soldiers for criminal acts, justice is not an appropriate consideration in the law of war. Justice does have a particular domain, but that domain does not intersect with the law of war.

Advancing a bold theory of the relevance of tort law in the fight against human rights abuses, celebrated US law professor George Fletcher here challenges the community of international lawyers to think again about how they can use the Alien Tort Statute. Beginning with an historical analysis Fletcher shows how tort and criminal law originally evolved to deal with similar problems, how tort came to be seen as primarily concerned with negligence and how the Alien Tort Statute has helped establish the importance of tort law in international cases. In a series of cases starting with Filartiga and culminating most recently in Sosa, Fletcher shows how torture cases led to the reawakening of the Alien Tort Statute, changing US law and giving legal practitioners a tool with which to assist victims of torture and other extreme human rights abuses. This leads to an examination of Agent Orange and the possible commission of war crimes in the course of its utilisation, and the theory of liability for aiding and abetting the US military and other military forces when they commit war crimes. The book concludes by looking at the cutting-edge cases in this area, particularly those involving liability for funding terrorism, and the remedies available, particularly the potential offered by the compensation chamber in the International Criminal Court. ; https://scholarship.law.columbia.edu/books/1072/thumbnail.jpg

In 2006 the law of war experienced two major shock waves. The first was the decision of the Supreme Court in Hamdan, which represented the first major defeat of the President's plan, based on an executive order of November 2001, to use military tribunals against suspected international terrorists. The majority of the Court held the procedures used in the military tribunal against Hamdan violated common article three of the Geneva Conventions. A plurality offour, with the opinion written by Justice Stevens, based their decision as well on afar-reaching interpretation of the substantive law of war. They held that conspiracy to commit terrorist acts did not fall under the customary international law of war. Congress responded by enacting the Military Commissions Act of 2006. The President signed the bill on October 17. The interpretation of Hamdan and the precedents on which it is based will shape future litigation about the constitutionality of the various provisions of this legislation.

War is with us more than ever. This is true despite the efforts of the United Nations Charter to ban the concept of war from the vocabulary of its member states. The preferred term is armed conflict. True, the Charter does refer to the Second World War, but apart from this concession to historically entrenched labels, the W word appears only once-when the Charter refers to ridding the world of the scourge of war. The Geneva Conventions, adopted a few years later, follow the same pattern. George Orwell could not be more amused. We change the vocabulary and think we have changed the world.