The assessment of facts to determine if peacetime law or the law of armed conflict is the correct choice involves the same analysis used in resolving other choice of law questions. Lawyers and judges constantly make choice of law decisions. Choice of law is part of the consideration of every legal matter. … In the terrorism-related cases discussed [here], international law … determines the choice of law. In these cases, choice of international law sends us, generally, to the domestic criminal law of the United States, Pakistan, Yemen, and other states. It does not send us to the law of armed conflict.
By Mary Ellen O’ Connell
Mary Ellen O’Connell is Robert and Marion Short Professor of Law and Research Professor of International Dispute Resolution at University of Notre Dame Law School. O’Connell joined the faculty as the Robert and Marion Short Professor of Law in 2005. Prior to joining the Notre Dame faculty, Professor O’Connell was the William B. Saxbe Designated Professor of Law at the Moritz College of Law of Ohio State University. She earned her B.A. in History, with highest honors, from Northwestern University in 1980. She was awarded a Marshall Scholarship for study in Britain. She received an MSc. in International Relations from the London School of Economics in 1981, and an LL.B., with first class honors, from Cambridge University in 1982. She earned her J.D. from Columbia University in 1985, where she was a Stone Scholar and book review editor for the Columbia Journal of Transnational Law. After graduation, she practiced with Covington & Burling in Washington, D.C. She then taught at Indiana University School of Law, Bloomington; at The Bologna Center of The Johns Hopkins University, Paul H. Nitze School of Advanced International Studies, Bologna, Italy; and the George C. Marshall European Center for Security Studies, Garmisch-Partenkirchen, Germany; and the University of Cincinnati College of Law.View all of Mary Ellen O’ Connell's posts.