nationalsecuritylaw forthcoming scholarship

* Forthcoming Scholarship

"Privileging Asymmetric Warfare (Part ll)?: The ‘Proportionality’ Principle Under International Humanitarian Law"

Chicago Journal of International Law, Forthcoming
SAMUEL ESTREICHER, New York University Law School

The laws of war are undergoing a fundamental transformation. The first step was the unmooring of the obligations of states and armies from the binds of reciprocity – the prospect that violations should be avoided because they will result in comparable reprisals from the other side – that began with the Geneva Conventions of 1949 and culminated in the 1977 Additional Protocols (AP I and II). The second major step – still an ongoing process – has been to substitute for the threat of reprisals the grounding of these obligations in enforceable, positive law. What started haltingly with the promulgation of several “grave” offenses in Geneva has—with the establishment of the International Criminal Court, international criminal tribunals for the former Yugoslavia and Rwanda authorized by the UN Security Council, conventions against torture and other practices, and the sustained pressure of a proliferating number of nongovernmental organizations seeking to enforce human and IHL rights violations through international criminal and tort law – reshaped the international legal landscape.

These developments call for closer attention to AP I, the principal legal framework for regulating warfare that many writers on international law believe binds not only ratifying countries, but also all nations and their inhabitants as a matter of customary international law. In an earlier article in this journal, I argued that the growth of “guerrilla” or irregular warfare – involving non-state armed groups locating themselves within dense civilian settlements in order to provoke a military response from occupying or NATO armies that would inevitably cause civilian casualties and generate additional recruits for the insurgent cause – requires a greater emphasis on broadly defining and strongly enforcing the duties of defenders to refrain from locating their military forces and assets among civilians. The overarching objective of IHL is to reduce unnecessary harm to civilians in the armed conflicts that warfare causes. This risk of harm is a joint product of both defenders and attackers and has to be regulated as such.

The focus of this article is on the so-called principle of “proportionality,” which regulates the conduct of warfare in an effort to limit harm to civilians during otherwise legitimate armed conflict. I use the qualifying adjective “so-called” because “proportionality” in this context is a misnomer. The actual obligation, as set forth in Articles 51(5)(b) and 57(2)(b) of AP I, speaks in terms of prohibiting (and deferring) attacks expected to cause incidental civilian losses “which would be excessive in relation to the concrete and direct military advantage anticipated.” Neither the text nor the policy of IHL requires some form of “balancing” or use of a “sliding scale” to ensure that the military objective is “proportionate,” in the sense of being commensurate with the extent of civilian losses? What is required is that the military use no more force than necessary to accomplish concrete, direct military objectives.

The proposed “excessive loss” formulation is not only truer to the text of AP I but provides a sounder, more principled basis for judging violations, for insisting on military commander compliance – than the more elastic, manipulable “proportionality” formulation, which invites commentators and tribunals to second-guess military objectives and compare and weigh essentially non-comparable factors.

"The Conduct of the Prophet in War with Special Reference to Prohibited Acts"

MUHAMMAD MUNIR, International Islamic University Islamabad (IIUI)
Email: mmunir3

This work argues that Islam introduced far reaching reforms to warfare. Burning and drowning the enemy to death was prohibited. Destroying buildings, cutting down trees, committing perfidy, breaching the trust of the enemy, the killing of women, children, servants, old, infirm, sick, wounded, priests, peasants, prisoners of war and envoys was strictly prohibited. Islam prohibited the destruction of harvest, livestock and forests. Looting, plundering and corruption from the war booty and indiscipline were prohibited. Mutilation of bodies was strictly condemned. Genocide and war crimes are strictly prohibited in Islamic law.

"Hybrid Sources of Law: Armed Groups and the Creation of International Law"

Yale Journal of International Law, Forthcoming

ANTHEA ROBERTS, London School of Economics – Department of Law
SANDESH SIVAKUMARAN, University of Nottingham

This article considers a novel and potentially controversial issue: whether non-state armed groups can, do and should play a role in the creation of international humanitarian law applicable in non-international armed conflicts.

International law was traditionally understood as the law created by, and binding upon, states and states alone. It is now broadly accepted that international law regulates the rights and obligations of many non-state actors as well as those of states. Yet any corresponding suggestion that non-state actors could or should play a role in international law-making remains highly contentious. In analyzing the potential role that such actors could play in law creation, we reject the traditional state/non-state distinction underlying the doctrine of sources in favor of a tripartite framework of states, state empowered bodies (such as international courts and international governmental organizations), and non-state actors (such as individuals, businesses, NGOs and armed groups). Focusing on the last category, we explore various theories for justifying some or all non-state actors playing a role in international law-making.

In particular, we assess the merits of giving armed groups a role in the creation of international humanitarian law applicable in non-international armed conflicts. Drawing on a wide range of rarely discussed practice, we demonstrate that armed groups already participate in law-making in a number of circumstances. Building on these developments, we contend that it is possible to move away from the traditional statist approach to sources, which denies armed groups any role in law-making, without moving to the extreme position of giving such groups complete control over their obligations or equal law-making powers with states. Accordingly, we put forward a theory of hybrid sources under which armed groups could be permitted to recognize existing international obligations or undertake new ones, without raising concerns about placing armed groups and states on a par or downgrading international legal standards.

"Nothing to Hide: The False Tradeoff between Privacy and Security"

Daniel J. Solove, NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY AND SECURITY, Chapter 1, Yale University Press, 2011

DANIEL J. SOLOVE, George Washington University Law School

"If you’ve got nothing to hide," many people say, "you shouldn’t worry about government surveillance." Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so.

In addition to attacking the "Nothing-to Hide Argument," Solove exposes the fallacies of pro-security arguments that have often been used to justify government surveillance and data mining. These arguments – such as the "Luddite Argument,"the "War-Powers Argument," the "All-or-Nothing Argument," the "Suspicionless-Searches Argument," the "Deference Argument," and the "Pendulum Argument" – have skewed law and policy to favor security at the expense of privacy.

The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. But protecting privacy isn’t fatal to security measures; it merely involves adequate oversight and regulation.

The primary focus of the book is on common pro-security arguments, but Solove also discusses concrete issues of law and technology, such as the Fourth Amendment Third Party Doctrine, the First Amendment, electronic surveillance statutes, the USA-Patriot Act, the NSA surveillance program, and government data mining.

"Rule Selection in the Case of Israel’s Naval Blockade of Gaza: Law of Naval Warfare or Law of the Sea?"

Yearbook of International Humanitarian Law, Forthcoming

JAMES KRASKA, U.S. Naval War College, Foreign Policy Research Institute (FPRI), Woods Hole Oceanographic Institution – Marine Policy Center, International Institute for Humanitarian Law, Loyola University of Chicago – Inter-University Seminar on Armed Forces and Society (IUS)

The Israeli Navy enforcement of a blockade against Gaza, and the interdiction of the Mavi Marmara on 31 May 2010, raises the issue of whether or how the law of naval warfare applies in the struggle between Israel and Gaza. The law of blockade arose originally as a feature of international armed conflicts (IACs). If the Gaza conflict constitutes IAC, then the law of blockade applies. If, however, the Gaza conflict constitutes a non-international armed conflict (NIAC), the application of the law of blockade is less clear. While blockade originated as a legal concept in IAC, usage, state practice and opinio juris have caused it to migrate into NIAC. The analogy of the American Civil War offers clues for solving this riddle. The US experience suggests that if Gaza were regarded as a sovereign state, then a state of war – IAC – would exist between Israel and Gaza. In such case, there is no doubt that the imposition of blockade is lawful. But this determination places Israel in the same dilemma experienced by the Union during the Civil War. If Israel avails itself of the right to blockade Hamas, is it also willing to grant Hamas lawful belligerent status? If the law of blockade does not apply in the case of the Israeli armed struggle with Gaza because Gaza is not a ‘state’, then this determination produces the absurd result that a nation may defend itself using a lawful instrument recognized by the law of armed conflict in fighting another state, but must voluntarily forgo the option if confronted with an equally powerful entity that does not meet the legal definition. Consequently, the law of blockade applies in the case of Gaza because there is no other rule set that appropriately balances the interests of the belligerents and neutrals.


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