forthcoming scholarship

June 14, 2010

* Forthcoming Scholarship

"The Application of IHL in the Goldstone Report: A Critical Commentary"

LAURIE R. BLANK, Emory University School of Law
Email: lblank

Yearbook of International Humanitarian Law, Vol. 12, 2009
Emory Public Law Research Paper No. 10-96

Operation Cast Lead, the Israeli military operation in Gaza that began on December 27, 2008, demonstrated anew the challenges international humanitarian law – otherwise known as the law of armed conflict or the law or war – faces in contemporary conflict. The Goldstone Report presented an opportunity to examine critically how the law applies in complicated modern warfare and how the law might be used to solve difficult problems such conflict poses.

This article analyzes the Goldstone Report’s application of the law to the conduct of both parties in the conflict so as to examine whether the report applies the correct legal standards and interprets them appropriately within the framework of the Gaza conflict. In particular, the article focuses on two main shortcomings in the Goldstone Report’s application of IHL: areas in which the report could have benefitted from a greater sensitivity to the complexities of modern warfare, and areas in which its approach is questionable as a matter of law.

First, I highlight the report’s flawed examination of the challenges posed by contemporary conflicts in two fundamental areas of IHL: distinction and military objectives. Both require that military commanders and soldiers understand who is a civilian and who is a fighter or combatant, and which targets are military targets and which are civilian objects. Without a thorough and sophisticated understanding of how to make these determinations, military commanders, soldiers and policy makers will face grave difficulty in planning and carrying out military operations within the bounds of the law. The challenges presented in Operation Cast Lead are emblematic of some of the most difficult dilemmas modern warfare poses.

Second, the article highlights several areas in which the Goldstone Report’s application of IHL is questionable, either because it uses the incorrect legal standard or because it applies the wrong law when more than one body of law applies. The report errs twice in its treatment of the principle of proportionality, first by approaching jus in bello proportionality retrospectively rather than prospectively, and second by conflating jus ad bellum proportionality with jus in bello proportionality. Additional problems arise in its analysis of the law governing precautions in attack and the treatment of prisoners of war, and its assessment of responsibility for specific crimes, including attacks on civilians, destruction of property and hostage taking.

The Structure of Terrorism Threats and the Laws of War

Matthew C. Waxman
Columbia Law School

Duke Journal of Comparative & International Law, Vol. 20, 2010
Columbia Public Law Research Paper No. 10-240

This article considers a major debate in the American and European counterterrorism analytic community – whether the primary terrorist threat to the West is posed by hierarchical, centralized terrorist organizations operating from geographic safe havens, or by radicalized individuals conducting a loosely organized, ideologically common but operationally independent fight against western societies – and this debate’s implications for both jus ad bellum and jus in bello. Analysis of how the law of armed conflict might be evolving to deal with terrorism should engage in more nuanced and sophisticated examination of how terrorism threats are themselves evolving. Moreover, the merits of legal reform proposals depend on their capacity to meet strategic needs while protecting humanitarian, liberty, and conflict-resolution interests. That capacity, in turn, depends on how well the assumptions underlying those proposals track accurately the anticipated – but uncertain – future terrorism threat environment.

Self-Defense and the Limits of WMD Intelligence

Matthew C. Waxman
Columbia Law School

FUTURE CHALLENGES IN NATIONAL SECURITY AND LAW, Peter Berkowitz, ed., Hoover Institution Press, 2010
Columbia Public Law Research Paper No. 10-241

During the 2008 presidential campaign, then-candidate Barack Obama stated: “Sometimes, the preventive use of force may be necessary, but rarely. The experience of Iraq underscores that often, perceived threats are not as real [as] they may seem, and our intelligence may be imperfect. But, when our intelligence is good and defensible we should not rule out the use of force.” This chapter examines ways of assessing legally whether that intelligence is sufficiently good and defensible. It argues that an objective reasonable necessity approach to WMD capability assessments can serve long-term peace and security objectives and, more specifically, how the law governing use of force might evolve to guide capability assessments. A reasonable necessity approach, combined with an objective standard of assessing WMD capability and operating as a narrow legal alternative to formal U.N. Security Council authorization, can best balance and allocate competing risks in an environment of significant capability uncertainty. Moreover, the substantive evidentiary issues forced to the surface through objective reasonableness analysis are critical to managing some of the dangers of operating outside explicit U.N. Security Council authority, and are critical to the effective operation of the legal processes that the strict UN Charter constructionists advocate.

What Good is Habeas?”

Aziz Z. Huq
University of Chicago Law School

Constitutional Commentary, Forthcoming

This essay examines empirically the effect of the Supreme Court’s 2008 judgment in Boumediene v. Bush, which held that detainees at the Guantánamo Naval Base in Cuba had a right to invoke federal court habeas jurisdiction. Boumediene marked a sharp temporal break because it introduced a new regime of constitutionally mandated habeas jurisdiction for non-citizens detained as “enemy combatants” at Guantánamo. The Boumediene Court envisaged habeas jurisdiction as serving a twofold purpose. First, it claimed habeas vindicates physical liberty interests in line with a longstanding historical understanding of the Writ. Second, the Court viewed habeas as a mechanism to generate or preserve legal boundaries on executive discretion. This essay gathers empirical evidence of the opinion’s effect up to January 2010 to determine whether these goals were fulfilled. While the data is in many respects ambiguous, it strongly suggests the effect of Boumediene on detention policy was not as significant as many believe. For example, less than four percent of releases from the Cuban base have followed a judicial order of release. Even in those cases, it is unclear if judicial action or something else caused release. Because the effects of habeas jurisdiction have been uncertain and perhaps marginal, effusive praise or blame of the Court’s 2008 decision is premature.

Against National Security Exceptionalism

Aziz Z. Huq
University of Chicago Law School

Supreme Court Review, 2010

Terrorist attacks trigger novel policy responses. New policies selected by the federal executive after the 9/11 attacks strained against constitutionally permissible margins, and prompted diverse judicial responses. The resulting scholarly literature is largely normative. But the currently dominant accounts of national security jurisprudence also each include some descriptive claim about what courts in fact do. Each account further claims that courts do something distinctive in these cases. That is, in the course of making a prescriptive argument for what courts ought to do differently in national security cases, these accounts make a descriptive claim about what courts in fact do differently in this class of cases. I argue that this threshold descriptive claim – call it “national security exceptionalism” – finds no empirical support in at least one important class of post-9/11 cases concerning emergency detention policies. Instead, judicial responses to national security emergencies align closely with transubstantive trends in public law and judicial responses to non-security emergencies. Using the Supreme Court’s recent ruling in Ashcroft v Iqbal as a starting point, I examine the close and largely unexamined relationship between national security jurisprudence and the larger domain of public law doctrine and practice. Situating judicial responses to national security emergencies in a more general public law context draws attention to the role emergencies can play in catalyzing larger legal changes law, and the effect of transubstantive trends on emergency responses. It further may have a bearing on the emergent “national security” discipline in the legal academy.

Modeling Terrorist Radicalization

Aziz Z. Huq
University of Chicago Law School

Duke Journal of Law and Social Change, Forthcoming

Recent high-profile terrorism arrests and litigation in New York, Colorado, and Detroit have brought public attention to the question of how the government should respond to the possibility of domestic-origin terrorism linked to al Qaeda. This symposium essay identifies and discussing one emerging approach in the United States and Europe which attends to the process of terrorist “radicalization.” States on both sides of the Atlantic are investing increasingly in developing an epistemology of terrorist violence. The results have implications for how policing resources are allocated, whether privacy rights are respected, and how religious liberty may be exercised. This essay traces the development of state discourses on “radicalization” in the United States and the United Kingdom. It argues that understanding this new “radicalization” discourse entails attention to interactions between nations and between the federal government and states as well as to the political economy of counter-terrorism.