nationalsecuritylaw forthcoming scholarship

Proportionality in Counterinsurgency: A Relational Theory

Evan J. Criddle (Syracuse University College of Law)

87 Notre Dame Law Review (2011)

At a time when the United States has undertaken high-stakes counterinsurgency campaigns in three countries (Afghanistan, Iraq, and Pakistan) while offering support to insurgents in a fourth (Libya), it is striking that the international legal standards governing the use of force in counterinsurgency remain unsettled and deeply controversial. Some authorities have endorsed norms from international humanitarian law as lex specialis, while others have emphasized international human rights as minimum standards of care for counterinsurgency operations. This Article addresses the growing friction between international human rights and humanitarian law in counterinsurgency by developing a relational theory of the use of force. The central insight is that a state’s authority to use force under international law is derived from, and constrained by, the fiduciary character of its relationship with its people. This relational conception of state sovereignty offers an attractive normative framework for addressing conflicts between human rights and humanitarian law. When states engage in internal armed conflict and belligerent occupation, their assertion of control over an affected population entails a concomitant fiduciary obligation to satisfy the strict proportionality standard of international human rights law. Conversely, when states defend their people in traditional international armed conflict and transnational armed conflict against non-state actors, international humanitarian law ordinarily supplies the applicable proportionality standard. Examples from conflicts in Afghanistan, Argentina, Israel, Libya, and Russia illustrate how the relational approach to choice-of-law analysis could lay a more coherent and principled foundation for counterinsurgency regulation under international law.

"The Habeas Corpus Suspension Clause and the Right of Natural Liberty"

JOHN C. HARRISON, University of Virginia School of Law

Important recent scholarship shows that the Habeas Corpus Suspension Clause is aimed mainly at substantive legislation that authorizes confinement by the executive that otherwise would be unlawful. Thus a grant of detention authority that leaves the judicial habeas corpus remedy intact can constitute a suspension subject to the clause. This article emphasizes that at the time of the framing the central example of a suspension of the writ was a grant of extremely broad discretion to the executive to confine people the executive believed to be dangerous. It maintains that broad executive discretion to confine is a necessary condition for a grant of detention authority to qualify as a suspension. Therefore legislative authorization of executive detention for reasons of national security is not a suspension as long as the executive’s discretion is substantially bounded; for example, the confinement of enemy aliens during war does not require suspension of the writ. That is true whether the persons to be detained are citizens or aliens. Congressional grants of legally determinate national security detention authority are thus not limited to cases of rebellion and invasion by the Suspension Clause, because they are not suspensions, and may be applied to citizens and aliens alike.

"Civil Litigation and International Terrorism: An UK-Israeli Reflection on the Role and Impact of US Styled Anti-Terrorism Litigation for the Prevention of Terrorism and the Protection of Human Rights"

SASCHA-DOMINIK OLIVER VLADIMIR BACHMANN, University of Portsmouth – School of Law
Email: sascha.bachmann

Global terrorism relies directly on financial economic support from a multitude of donors, both individual and corporate. Terrorist financing is a global problem which is closely linked to international crimes such as money laundering and organized crime. Consequently, possible responses have to be coordinated, multilateral and multi-faceted under the umbrella of a wide range of international stakeholders such as the United Nations Security Council and the Financial Action Task Force (FATF). Apart from “kinetic” lethal security responses and measures of criminal deterrence another response could be the use of transnational civil litigation by victims of terrorism against both terrorist groups and their sponsors. Corporations, both profit and non profit, such as banks (cf. the US Arab Bank cases and the In re Terrorist Attacks on September 11, 2001 case) and other entities (cf. the Boim litigation cases), as well as individuals, collude as aiders and abettors by providing financial assistance to the perpetrators (cf. UN Consolidated List established and maintained by the 1267 Committee with respect to Al-Qaida et al). Such collusion in acts of terrorism gains additional importance against the background of so called “Hybrid Threats” reflecting on new threats arising from multi-polar threat scenarios. This article reflects on the evolving notion of corporate responsibility for colluding in acts of terrorism and human rights violations as an additional legal form of redress for the individual victim of terrorism from a UK-Israeli perspective. This article acknowledges the interdependence of the different responses to terrorism and argues for the adoption of a holistic approach to combat terrorism.

Rules of Engagement: Law, Strategy and Leadership

Laurie R. Blank

Emory University School of Law

ASPECTS OF LEADERSHIP: ETHICS, LAW AND SPIRITUALITY, Marine Corps University, 2012

This collection of scholarly works from both academia and uniformed service personnel provides PME institutions, the operating forces, and civilian academics a resource of thought-provoking material on the challenging ethical and legal considerations facing Marine leaders and encourage discussion of these issues in an open forum. The project stems directly from the Commandant of the Marine Corps’ most recent planning guidance, directing the forces to focus on "better educat[ing] and train[ing] our Marines to succeed in distributed operations and increasingly complex environments."

This article will examine and refocus the debate about ROE to analyze the critical intersection of law, strategy and leadership that Rules of engagement (“ROE”) represent in during armed conflict. ROE are a key leadership tool. At the same time, leadership plays a critical role in communicating the direct relationship between the overall mission, the law of armed conflict, and the tactical needs on the ground. The top brass and senior commanders see the value of the ROE in their every day operations and relationships with local military and government officials, but many officers and enlisted soldiers complain about what they view as unreasonable restrictions on their ability to use force. When strategic counterinsurgency goals of minimizing civilian casualties are mistaken for legal rules that do not allow for civilian deaths in wartime, the differences between law and policy, between legal parameters governing the use of force and the targeting of persons and tactical considerations driven by strategic policy are being differentiated appropriately.

"The U.S. Supreme Court, the War on Terror, and the Need for Thick Constitutional Review"

Mississippi Law Journal, Vol. 80, No. 4, 2011

MARK KENDE, Drake University Law School
Email: mark.kende

Commentators have praised the U.S. Supreme Court’s three famous “war on terror” cases (Hamdi, Hamdan, and Boumediene) for showing the Court’s courage in rejecting broad wartime claims of executive power. By contrast, this symposium essay criticizes the Court for failing to provide essential legal criteria to govern how the lower courts should handle enemy combatants and the military commission system. Justice O’Connor’s position in Hamdi that the detainees could be held for the duration of the conflict, in a war that could last indefinitely, is just one example. Due to its omissions, the Court effectively allowed many of the Bush Administration’s questionable detention policies to continue with only minor legal adjustments. Indeed the D.C. Circuit was given license to develop the law to problematic effect.

This essay argues that the only viable solution left, to preserve the rule of law and the international stature of the U.S., would be for Article III judges to adjudicate any Guantanamo prosecutions. The commission’s procedural rules should also be as court-like as possible. Unfortunately, the Obama Administration has failed to alter certain key Bush policies on the commissions, even conceding Congressional obstacles. In addition, the essay poses the question of whether the U.S. Supreme Court should remain deferential to the other branches during wartime, given the consistent recent history of government deception on war related issues (as shown by Korematsu, the Gulf of Tonkin incident, the Pentagon Papers, the supposed weapons of mass destruction in Iraq, and Yaser Hamdi’s purported dangerousness).

Israel’s National Security Law: Political Dynamics and Historical Developments

Amichai Cohen (Ono Academic College, Israel)

Routledge

Terror attacks on western civilian targets have stimulated interest in the dilemmas faced by liberal societies when combating threats to national security. Combining the perspectives of political science and law, this book addresses that discourse, asking how democracies seek to harmonize the protection of individual liberties with the defence of state interests.

The book focuses on the experience of Israel, a country whose commitment to democratic values has continuously been challenged by multiple threats to national survival. It examines the legal, legislative and institutional methods employed to resolve the dilemmas generated by that situation, and thus provides a unique interpretation of Israeli national security behaviour. Policy-making and policy-implementation in this sphere, it shows, have reflected not just external constraints but also shifts in the domestic balance of power between the executive, the legislature and the judiciary. The book concludes with an agenda of the measures that each branch of government needs to implement in order to repair the flaws that have developed in this system over time.

Based on a close reading of legislative and court readings, the book proposes a new taxonomy for the analysis of national security legal frameworks, both in Israel and elsewhere in the democratic world. As such it will be of great interest to students and scholars of political science, national security law, Israeli history and civil-military relations.

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