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1. Historical Examples of Unauthorized Humanitarian Intervention

Author:
Julia Brower, Ryan Liss, Tina Thomas, and Jacob Victor
Publication Date:
08-2013
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In December 1971, India sent troops into what was at the time known as East Pakistan. For the preceding months, Pakistani forces had been engaged in a violent conflict with a Bangladeshi separatist group.1 The Indo-Pakistani conflict was sparked by the Bangladesh Liberation War, a conflict between the West Pakistanis and the East Pakistanis, who were mainly of Bengali ethnicity.2 In the 1970 Pakistani election, the East Pakistani Awami League secured a simple majority in the Parliament of Pakistan.3 The West Pakistani leadership, however, stalled in relinquishing power.4 The Awami League declared the independence of East Pakistan as Bangla Desh on April 10, 1971.5 West Pakistani forces engaged in violent attempts to end the insurrection, committing widespread atrocities against the Bengali population of East Pakistan.6 Over a million Bengalis were killed.7 And, an estimated 8 million refugees fled to India.8 In December 1971, fighting broke out between India and Pakistan when India sent armed troops into East Pakistan.9 U.N. debates over the conflict took on a distinctly Cold War tone, stalling any action on the part of the United Nations.10 The military conflict between India and Pakistan lasted only thirteen days before Pakistani forces in East Pakistan surrendered.11 By January 4, 1972, the Secretary-General was able to report that the cease-fire between the two states “appeared relatively stable.”12 As a result of India’s intervention, East Pakistan ultimately achieved independence and became modern-day Bangladesh.13 In justifying its unauthorized intervention, India framed the issue as mainly one of self-defense and regional security. Citing the millions of refugees flowing from East Pakistan into India, the Prime Minister of India wrote to the U.N. Secretary General that Pakistan’s actions “pose a serious threat to our security” and that the resulting military action taken against Pakistan was “entirely defensive.”14 The Indian Ambassador to the Security Council argued that Pakistan had committed a crime of “refugee aggression,” that is, its aggression came from the strain its actions placed on India’s social structure and finances.15 India also argued that it had a right to intervene in light of the humanitarian catastrophe engulfing East Pakistan. The Indian Ambassador to the U.N. claimed that India had “absolutely nothing but the purest of . . . intentions: to rescue the people of East Bengal from what they are suffering.”16 India also maintained that its authority to intervene to end the humanitarian catastrophe was based in part on the consent of Bangladeshi people, even though Bangladesh was not yet an independent state.17 In making this argument, India argued that the rule of self-determination might be applied to the Bengali people.18
Topic:
United Nations, Military Strategy, Legal Theory, and Humanitarian Intervention
Political Geography:
Pakistan, India, and Asia

2. Optimal Deterrence: An Evaluation of the Leaks-Regulating Regime

Author:
Ananth Padmanabhan, Tina Thomas, and Jacob Victor
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
Recent high-profile leaks have led to renewed calls, especially from some members of Congress, for a more rigorous leaks-prosecuting regime. In response, others, most visibly the press and certain watchdog groups, have strongly resisted the claim that a more forceful response to unauthorized disclosures benefits the American public. This report evaluates the existing leaks-regulating regime and considers which of the current reform proposals are most likely to provide optimal deterrence. First, this report outlines the myriad and sometimes contradictory interests at stake implicated by unauthorized disclosure of classified information: protecting national security, safeguarding First Amendment rights, ensuring government accountability and transparency, promoting consistency in prosecution, and furthering efficient government functioning. Second, this report examines why it has proven difficult for the government to successfully prosecute leaks. It identifies four leading reasons. First, it can be difficult to identify a leaker, given the vast proliferation of the classification system and the expansion of national security bureaucracy. Second, the government faces significant legal burdens at trial— prosecutors often have to rely on circumstantial evidence; in the case of intangible information disclosure, the government may also have to deal with a heightened scienter requirements. Third, a trial may attract unwanted attention to an issue the government prefers to keep secret and defendants sometimes try to capitalize on this by using “graymail” defenses. Finally, the recipients of unauthorized disclosures—usually members of the press—enjoy robust constitutional protections that can restrict evidence gathering.
Topic:
Governance, Legal Theory, Deterrence, Classification, and Leaks
Political Geography:
Global Focus

3. EU Privacy Regulation: Implications for U.S. and EI Law Enforcement

Author:
Carlton Forbes and Jacob Victor
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In January 2012, the European Commission released drafts of two new pieces of legislation that would provide more stringent and more uniform regulation to the processing of electronic data relating to EU citizens. The proposed General Data Protection Regulation would govern the processing of data for general purposes, while the proposed Criminal Justice Directive would govern data processed in the specific context of criminal investigations. The Data Protection Regulation has proven controversial because of the significant number of requirements it imposes on private data processors, including requirements that the processor notify a consumer when her data is shared with a third party, and requirements that processors respect a number of new individual rights, such as the right of a consumer to request that her data be deleted (a.k.a. “the right to be forgotten”). Furthermore, the Regulation would mandate that many non-EU corporations would need to comply with its requirements when processing the data of EU citizens, or face harsh penalties. This memo summarizes the existing EU data protection regime, analyzes the changes proposed by the new Data Protection Regulation and Criminal Justice Directive, and explores the implications of this new legislation for U.S. criminal and national security investigations. We arrive at three main conclusions
Topic:
Law Enforcement, Law, European Union, Regulation, and Legal Theory
Political Geography:
Europe, North America, and United States of America