nationalsecuritylaw forthcoming scholarship

* forthcoming scholarship

Wings over Libya: The No-Fly Zone in Legal Perspective

Michael N. Schmitt (Durham University)

36 Yale J. Int’l L. Online 45 (2011)

On March 17, 2011, the United Nations Security Council adopted Resolution 1973, which imposed "a ban on all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians." Excluded from the scope of the ban are humanitarian flights, those evacuating foreign nationals from the country, and any other flights authorized by states enforcing the no-fly zone. Going beyond simply banning aerial activity, the Security Council further authorized "Member States that have notified the Secretary-General and the Secretary-General of the League of Arab States, acting nationally or through regional organizations or arrangements, to take all necessary measures to enforce compliance." The reference to "all necessary means" is the standard phrase the Security Council uses to authorize states to act militarily. Pursuant to the Resolution, states can operate alone, in an ad hoc coalition, through a regional organization such as NATO, or a combination thereof.

In addition to imposing a no-fly zone, Resolution 1973 demands a cease-fire and a "complete end to violence and all attacks against, and abuses of, civilians." Among the various measures sanctioned to achieve this latter aim, the Security Council granted member states permission to "take all necessary measures . . . to protect civilians and civilian populated areas under threat of attack." The Resolution thus authorizes direct military action against Libyan armed and security forces in response to any operations that are placing, or might place, the civilian population at risk. Such permission is indispensable to protecting civilians, for the greatest threat to civilians comes not from air attacks, but rather ground attacks directed against them or in which they might become collateral damage.

Two days after adoption of Resolution 1973, an ad hoc coalition of forces launched combat operations to enforce the zone and to obstruct the Libyan ground attacks that were endangering the civilian population. This Essay focuses on the no-fly zone facet of the Resolution’s enforcement regime, while also situating the no-fly zone in the context of the overall operations in Libya. Part II provides a description of the legal basis for no-fly zones in general, together with a discussion of historical examples of such operations. As no-fly zones represent a unique form of international coercion, Part III assesses the legal parameters governing their maintenance, particularly those deriving from the law of armed conflict. Part IV concludes with an analysis of the Libyan no-fly zone in order to pull these two normative strands together and to identify Resolution 1973’s unique features.

As will become apparent, the Libyan no-fly zone is unprecedentedly robust. In terms of geographical coverage, scope of the ban, and enforcement authorization, it is much broader than any previous no-fly zone. Moreover, maintaining the zone while conducting other combat operations to protect civilians creates a synergy that renders the military enforcement effort highly potent. But at the same time, it is essential to understand that, notwithstanding its aggressiveness, operations to police the zone are still governed by the law of armed conflict, albeit as applied in light of the Security Council’s authorization. These factors make for an especially complex normative regime. But before turning to the Libyan no-fly zone, it is first necessary to examine the law governing such operations in general.

"Humanitarian Uses of Force"

CHRISTIAN J. TAMS, University of Glasgow, School of Law
Email: c.tams

Whether force can be used to further humanitarian causes, is one of the "perennial" questions of international law. This paper addresses it in a succinct way. It proceeds from the basis of the UN Charter regime and questions whether contemporary international law (within or outside the Charter) has come to accommodate humanitarian concerns, or ought to do so. This question has prompted much debate, notably under the rubric of ‘humanitarian intervention’. The subsequent considerations reflect on these debates, but adopt a broader approach that includes other humanitarian uses of force – resort to military violence with a view to protecting human rights of others – as well, notably UN-mandated interventions, armed struggles against colonialism and military operations to rescue nationals from abroad.

WikiLeaks: The Illusion of Transparency

Alasdair S. Roberts
Suffolk University Law School

It has been said that the 2010 WikiLeaks disclosures marked "the end of secrecy in the old fashioned, cold-war-era sense." This is not true. Boosters of WikiLeaks have overestimated the scale and significance of the leaks. They have also overlooked many ways in which the simple logic of radical transparency – leak, publish, and wait for the inevitable outrage – can be defeated in practice. WikiLeaks only created the illusion of a new era in transparency. In fact the 2010 leaks revealed the obstacles to achievement of increased transparency, even in the digital age.

"The Functional Political Question Doctrine and the Justiciability of Employee Tort Suits Against Military Service Contractors"

New York University Law Review, Vol. 85, No. 2, 2010

KRISTEN L. RICHER, affiliation not provided to SSRN
Email: klricher

In recent years, the U.S. military’s use of private contractors in waging its wars has drawn increased attention from the academic literature, largely related to the growing number of cases filed by U.S. servicemen and contractor personnel against companies like Halliburton and Kellogg, Brown & Root. These suits have garnered the attention of the legal academy, particularly as federal courts dismiss such suits as non-justiciable under the political question doctrine – a doctrine of judicial restraint long associated with voting rights and gerrymandering caselaw. The recent application of the political question doctrine to cases involving military contractors raises familiar questions regarding the scope of the judiciary’s role in monitoring the actions of coordinate branches and the pragmatism of the judiciary playing such a role at all. This Note considers these matters through the lens of the functional political question doctrine. It concludes that while federal courts may have the institutional capacity to play some role in administering tort suits against private contractor firms, that participation should be carefully cabined to avoid any judicial interference with the military’s authority to set standards for combat. Thus, while in-field negligence claims will usually present non-justiciable political questions, fraudulent recruitment claims will not.

"Siren Song: The Implications of the Goldstone Report on International Criminal Law" [n.b., Goldstone’s much-discussed op-ed reconsidering his report, published in the Washington Post on April 1, appears here]

Berkeley Journal of International Law (BJIL), Vol. 7, 2011

CHRIS JENKS, Government of the United States of America – Judge Advocate General’s Corps
Email: mcjenks03
GEOFFREY S. CORN, South Texas College of Law
Email: gcorn

We propose a truly academic endeavor – consideration of the Goldstone Report divorced from either or any side of the conflict. We undertake this quixotic task because in our humble estimation there are aspects of the Goldstone Report which are problematic for other nations in general and specifically international criminal law, separate and apart from the context of the Israeli Palestinian conflict.

One such aspect is the Goldstone Report’s ex post facto evaluation of targeting decisions made by the IDF in contravention of a long established principle of war crimes liability. Under this principle, evaluation of targeting decisions requires considering the situation through the perspective of the military commander at the time the judgment at issue was made. Another aspect, two really, both relate to the ICC. The first is that by calling into question Israel’s efforts to investigate alleged IDF violations of the law of armed conflict (LOAC) and invoking the specter of the ICC, the Goldstone Report calls into question the very meaning of complementarity under the Rome Statute. The second stems from the Palestinian Authority’s (PA) attempt to accept ICC jurisdiction following Operation Cast Lead. In summarily rejecting a request by an entity lacking the requisite dramatis personae of a State, the Prosecutor to the ICC has created, or certainly not dispelled, the false impression that the events that occurred in Palestinian territory fall within his discretion, when, under the Rome Statute, they do not. Both these aspects may undermine the long term viability of the ICC.

We conclude that, unchecked, the Goldstone Report may prove an incorrect and dangerous precedent on how inquiries into targeting decisions made during armed conflict are conducted, any resulting criminal liability determined, and the parameters of State responsibility to investigate allegations of LOAC violations.

"Mental Torture: A Critique of Erasures in U.S. Law"

Georgetown Law Journal, Forthcoming
Georgetown Public Law Research Paper No. 11-31

DAVID J. LUBAN, Georgetown University Law Center
Email: luband
HENRY SHUE, University of Oxford
Email: henry.shue

Both international and federal law criminalize mental torture as well as physical torture, and both agree that “severe mental pain or suffering” defines mental torture. However, U.S. law provides a confused and convoluted definition of severe mental pain or suffering – one that falsifies the very concept and makes mental torture nearly impossible to prosecute or repress. Our principal aim is to expose the fallacies that underlie the U.S. definition of mental torture: first, a materialist bias that the physical is more real than the mental; second, a substitution trick that defines mental pain or suffering through a narrow set of causes and effects, ignoring the experience itself; third, a forensic fallacy, in which the due process requirements of specificity in criminal law become wrongly identified with defining characteristics of the crime of torture (an understanding that loops back to corrupt the law); and fourth, a mens rea requirement that excludes all mental torture not committed with the sadistic intention of causing long-lasting harm. Our article begins with an analysis of the concept of mental pain and suffering, as well as a factual discussion of U.S. practice. We also examine the legislative history of the definition in U.S. law. We demonstrate that it derives from political concerns that other countries might accuse U.S. law enforcement personnel of torture. We conclude by examining the specific evil of mental torture: the merciless attempt to break down and occupy the personality of the victim.

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