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Geneva Convention Argument Rejected in Prosecution of Alleged Iraqi Insurgent

Robert Chesney
Wednesday, September 28, 2011, 1:51 PM
United States v.

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United States v. Alwan is the case in the Western District of Kentucky involving individuals accused of having been insurgents in Iraq who attacked American troops.  There have been some calls for shifting the case into the military commission system, but don't hold your breath on that.  Meanwhile, the case is moving forward, and DOJ got a predictable but important win yesterday when District Judge Russell rejected a defense motion to dismiss certain charges on the theory that either the laws in question did not apply in an occupation setting or that they were in any event preempted by Article 64 of the Fourth Geneva Convention.  Judge Russell held that:  (i) 18 USC 2332 and 2332a have extraterritorial application, and there is no implied exception precluding their application to contexts of armed conflict overseas; and  (ii) neither is limited by Article 64 of the Fourth Geneva Convention, which merely requires Occupying Powers to permit the courts and legal system of an occupied territory to continue to function subject to certain limitations, and does not preclude concurrent jurisdiction in circumstances like this.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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