nationalsecuritylaw forthcoming scholarship

"Drones and the Boundaries of the Battlefield"

Texas International Law Journal, Vol. 47

MICHAEL W. LEWIS, Ohio Northern University – Pettit College of Law
Email: m-lewis

The HPCR Manual on International Law Applicable to Air and Missile Warfare appropriately proposes that armed drones be treated as the legal equivalent of manned military aircraft. However it does not address the biggest legal challenge facing the use of drones and that is how the boundaries of the battlefield are defined.

Although the determination of IHL’s scope and the boundaries of the battlefield places limitations on the use of any form of armed force, it has particular relevance to the future of drones due to their capabilities and limitations. Their exceptional endurance and real-time target area monitoring makes them an ideal tool for use in counter-insurgency and counter-terrorism operations. But their extreme vulnerability to even moderately capable air defense systems means that their use is currently restricted to permissive air defense environments, and for reasons of cost and effectiveness they will remain so constrained for the foreseeable future.

Because armed drones are not capable of offering surrender before employing lethal force, they may not be legally employed in a law enforcement environment, but may only be used when the laws of armed conflict (IHL) apply. This makes the question of whether counter-insurgency and counter-terrorism operations are governed by human rights law (IHRL) or IHL critical to the future of drones because, unlike traditional airpower which may be effectively employed in any air defense environment, drones are limited to such low intensity environments.

International and non-international armed conflicts take two different approaches to determining how geography cabins the use force and the application of IHL. In international armed conflicts (IAC’s) IHL applies to the participants in an armed conflict wherever they are found, subject to the restrictions of neutrality law. Non-international armed conflicts rely upon thresholds of violence and group cohesion (Tadic factors) to determine when internal conflicts within a given geographical area should properly be considered a NIAC.

These approaches work well for IAC’s and internal NIAC’s. However attempts to determine the scope of IHL in transnational NIAC’s (like the conflict between the US and al Qaeda) with reference to Tadic-like factors should fail. Accepting such an approach would turn the Geneva Conventions on their head. It would effectively grant sanctuary to and confer an important strategic advantage upon unprivileged belligerents, the same groups that the Conventions otherwise identify as the least protected and least privileged category. In contrast the application of neutrality law principles to transnational NIAC’s would prevent the unilateral use of military force without undermining the foundational principles of the Geneva Conventions.

"The Law of Operational Targeting: Viewing the LOAC Through an Operational Lens"

Texas International Law Journal, Forthcoming

GEOFFREY S. CORN, South Texas College of Law
Email: gcorn
GARY P. CORN, affiliation not provided to SSRN
Email: osmilhos

Understanding how air and missile warfare is planned, executed, and regulated requires more than just an understanding of relevant LOAC provisions. In U.S. practice (and that of many other countries), air and missile warfare is one piece of a broader operational mosaic of law and military doctrine related to the joint targeting process. Air and missile warfare is embedded within this broader targeting process. Accordingly, a genuine understanding of the law of air and missile warfare necessitates understanding how the LOAC influences and is integrated within this targeting process.

How operational commanders select, attack, and assess potential targets and how the LOAC reflects the logic of military doctrine related to this process is therefore the objective of this Essay. To achieve this ‘objective’, the authors will focus on a recent decision by the International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Gotovina. Although the military operation at the center to this case involved only limited use of air and missile warfare, the Tribunal’s extensive focus on the use of artillery and rocket attacks provides a useful and highly relevant illustration of why understanding the interrelationship between law and military doctrine is essential for the logical and credible development of the law. The author’s therefore seek to ‘exploit’ this case as an opportunity to expose the reader to this interrelationship, an interrelationship equally essential to the effective evolution of the law of air and missile warfare.

Risk and Inchoate Crimes: Retribution or Prevention?

Larry Alexander

University of San Diego School of Law

Kimberly Kessler Ferzan

Rutgers, The State University of New Jersey – School of Law – Camden

SEEKING SECURITY: PRE-EMPTYING THE COMMISSION OF CRIMINAL HARMS, Forthcoming
San Diego Legal Studies Paper No. 11-064

In this book chapter we give a definition of inchoat e crimes and argue that inchoate crimes, so defined, are not culpable and do not deserve punishment. Our argument against the culpability of inchoate crimes is based on several points: the ability of the actor who intends a future act that might be culpable if performed to change his mind prior to the act’s performance; the conditionality of all future-oriented intentions; uncertainty regarding the culpability-enhancing or culpability-mitigating circumstances that will exist at the future time of performance; and the roles of vacillation and duration in assessing culpability. We argue that punishment for inchoate crimes should be regarded as preventive rather than retributive.

"The Limits of Change: International Human Rights Under the Obama Administration"

Virginia Public Law and Legal Theory Research Paper No. 2011-30

PAUL B. STEPHAN, University of Virginia School of Law
Email: pbs

As a candidate for President, Barack Obama made “change” a central theme of his campaign. In particular, he railed against the Bush Administration’s human rights policy, including its resort to a war of choice that resulted in many civilian casualties, its detention of suspected terrorists at Guantánamo, its use of military tribunals instead of civilian courts to punish persons accused of terrorism, its expansive sense of what constitutes war crimes and who can be punished for committing them, and its general hostility to human rights litigants. Two-and-a-half years into the Obama administration, we find the nation embroiled in a new war of choice in Libya as well as an expanded conflict in Afghanistan, and an ongoing one in Iraq. Guantánamo remains in business, military tribunals once again have become the preferred option for punishing foreign terrorist ringleaders whom our government cannot kill outright, the law of war remains the dominant model for framing the legal limits of U.S. projections of force overseas, and courts have continued to narrow the scope of human rights litigation without serious resistance from the executive. At a glance, it appears that President Obama has become the person that candidate Obama ran against.

All this is familiar. My response will be limited, but perhaps helpful. Whether the Bush Administration or the Obama Administration responded better to the challenges posed by terrorist threats, in light of our human rights values and commitments, is not my concern. I have no interest in excoriating the current Administration for its human rights failures or defending it for its pragmatism. In 2008 I did not expect candidate Obama, once elected, to reverse, or even change significantly, the course taken by the U.S. government to meet terrorist threats or otherwise to address human rights issues. This expectation has largely been realized. My objective is to explain the institutional dynamics that brought about this result. This little paper’s objective, in other words, is positive, not normative. I want to explain why administrations behave the way they do, not guide them to some other path than the one they have taken.

The institutional constraints that limit what a serving U.S. administration can do regarding human rights include: (1) the challenge to win re-election; (2) the policies and practices developed by career civil servants and military personnel; (3) the profound difficulty of the issues and the risks presented by all conceivable choices, due to the dynamic and uncertain environment that surrounds and forms the modern national security presidency; and (4) the distinct and opposing interests of Congress and the judiciary. I will discuss how each limits the ability of a new administration to break with the past. I then will discuss a particular human rights dispute on which I have done some work, and where the Obama Administration has taken exactly the same approach as did the Bush Administration.

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