nationalsecuritylaw forthcoming scholarship

March 16, 2012

Valor’s Vices: Against a State Duty to Risk Forces in Armed Conflict

Peter Margulies

Roger Williams University School of Law
NEW BATTLEFIELDS/OLD LAWS: SHAPING A LEGAL FRAMEWORK FOR COUNTERINSURGENCY, William Banks ed., Oxford Univ. Press, 2012

This paper questions the claim that armed forces have a categorical duty to risk themselves to protect civilians. Wary of air power that limits risk to an attacking state’s own forces, the great political philosopher Michael Walzer and others have criticized NATO’s Kosovo campaign in 1999 and Israel’s 2008-09 Gaza incursion. While international humanitarian law (IHL) already bars the targeting of civilians and requires proportionality between collateral harm and a military goal, champions of the duty to risk assert that more is required.

Although champions of the duty to risk deploy the rhetoric of valor to justify this new obligation, that rhetoric masks questionable judgment and skewed signals. The duty to risk is a myopic approach that would discourage technological innovation and precautions such as warnings. It would also subject commanders to a withering hindsight bias, in essence imposing strict liability on states for civilian casualties. Finally, the duty to risk send perverse signals in conflicts between states and violent non-state actors like terrorist groups, encouraging non-state groups to intermingle civilian and belligerent operations in order to hamstring state responses. This flawed signaling puts even more civilians at risk.

Lowering civilian casualties calls for a structural approach that enhances deliberation about targeting decisions by military lawyers and senior officials. A state would also have to use the most precise weaponry that is practically available, and use the least amount of force required to disable dual-use targets such as power plants where civilian casualties are likely. Finally, a state would have an ethical obligation to cooperate with international investigations. These measures may not produce more heroes, but they promise to save more civilians.

"Killing in the Fog of War"

Rutgers School of Law-Newark Research Paper, Forthcoming

ADIL AHMAD HAQUE, Rutgers, The State University of New Jersey – School of Law-Newark
Email: adil.haque

This article answers two of the most urgent and important questions facing the contemporary law of armed conflict. First, how certain must a soldier be that a given individual is a combatant and not a civilian before attacking that individual? Second, what risks must soldiers accept to themselves and to their mission in order to reduce the risk of mistakenly killing civilians?

In the absence of clear legal rules, leading states, scholars, and practitioners have embraced a Balancing Approach according to which both the required level of certainty and the required level of risk vary with the balance of military and humanitarian considerations. However, this article shows that the Balancing Approach ignores the moral asymmetries between killing and letting die and between intentionally and unintentionally killing civilians. As a result, in a wide variety of situations, the Balancing Approach would permit soldiers to intentionally kill individuals who are probably, much more likely, or almost certainly civilians rather than combatants. These implausible implications expose the fatal defects of the Balancing Approach and demonstrate the need for a morally defensible alternative.

To meet this need, this article develops a deontological account of both the required level of certainty and the required level of risk. The first part of this new account, Deontological Targeting, prohibits a soldier from intentionally killing an individual whom she believes is a civilian or whom she does not reasonably believe is a combatant. These constraints establish a minimum threshold of certainty that soldiers must reach before using deadly force. Above the reasonable belief threshold, the required level of certainty varies with the relative costs of error but, crucially, also reflects the moral asymmetry between killing and letting die. In particular, except in rare cases, targeted killing operations against individuals who pose no immediate threat are permissible only if there is conclusive reason to believe that the individuals are combatants.

The second part of this new account, Deontological Precaution, requires, at a minimum, that soldiers take as much risk as necessary to reach the required level of certainty. In addition, soldiers must take further precautions unless doing so would increase the risk to the soldiers substantially more than doing so would decrease the risk to civilians. If soldiers are unwilling or unable to reach the required level of certainty or accept the required level of risk then they must hold their fire.

The article concludes by distilling these complex moral principles into new legal rules, reinterpretations of existing legal rules, and model rules of engagement in which soldiers can be trained and that can guide soldiers through the fog of war.  

The Legacy of Rux v. Republic of Sudan and the Future of the Judicial War on Terror

Chad G. Marzen

Florida State University
Cardozo Public Law, Policy and Ethics Journal, Forthcoming

The Republic of Sudan’s material support of terrorism has contributed to the loss of innocent American lives. In 2007, a group of more than 50 surviving family members of 17 United States sailors killed in the October 12, 2000 U.S.S. Cole bombing obtained a $7,956,344 judgment against the Republic of Sudan for its material support of Al-Qaeda that enabled Al-Qaeda to carry out the attack. The award included damages for the sailors’ lost wages and earning potential pursuant to the Death on the High Seas Act, but not for emotional loss. The United States Congress responded by enacting the Justice for Victims of State Sponsored Terrorism Act in 2008 within the National Defense Authorization Act, which allowed the recovery of damages for emotional loss under 28 U.S.C. § 1605A of the Foreign Sovereign Immunities Act.

Despite congressional action, the family members of the deceased sailors still have not recovered damages for emotional loss because of the bombing. Most recently, in September 2011, all but four family members were denied recovery of emotional loss by the United States District Court for the Eastern District of Virginia in the Kumar v. Republic of Sudan decision on the grounds that their claims were barred by res judicata and barred because a contrary decision would violate the doctrine of separation of powers. The pursuit of damages for emotional loss continues, as the decision is currently on appeal with the Fourth Circuit Court of Appeals. This article argues that Kumar was incorrectly decided and, that in the wake of the progression of the Rux line of cases, the Fourth Circuit Court of Appeals is in a current position to uphold the clear intent of Congress to allow recovery of damages for emotional loss. To do so best upholds the clear intention of Congress to provide relief for the family members of victims of terrorism and the policies and purposes of 28 U.S.C. § 1605A.

Overall, the Rux line of cases provides a particularly instructive, yet tragic, story of the pursuit of civil damages for terrorism in American courts. This Article discusses the background, legal issues, and legacy of the Rux line of cases, the policies and purposes behind the state-sponsor of terrorism exception and the Foreign Sovereign Immunities Act, and the future of the judicial war on terror in the wake of the implementation of 28 U.S.C. § 1605A. Rather than being a hindrance to U.S. foreign policy interests, the story of the Rux line of cases and the Republic of Sudan anecdotally exemplifies that the state-sponsor of terrorism exception can actually promote U.S. foreign policy interests and serve as a strong tool in the war on terrorism. Since September 11, 2001, however, Sudan has actually become more of a silent counterterrorism partner whose very status as a state sponsor of terrorism may conceivably be removed in the near future. A more positive future concerning relations between the United States and Republic of Sudan may be on the horizon.

The Israeli Unlawful Combatants Law: Old Wine in a New Bottle?

Yuval Shany

Hebrew University of Jerusalem – Faculty of Law and Institute of Criminology; Israel Democracy Institute
RESEARCH SERIES OF THE MAX PLANCK INSTITUTE FOR FOREIGN AND INTERNATIONAL CRIMINAL LAW, Forthcoming
The Hebrew University of Jerusalem Faculty of Law Research Paper No. 03-12

The Israeli Incarceration of Unlawful Combatants Law of 2002 (the “2002 Law”) is arguably a legal instrument of controversial origins and limited practical utility. Still, its history presents an interesting case study of the way in which legal systems struggle to adapt themselves to new challenges presented by terror groups, and how the dialectic between the legislature and courts can contribute to the fine-tuning of legislation dealing with such issues. Furthermore, the cumulative experience acquired by Israel in applying the law may be of general interest to countries seeking to introduce a preventive detention schemes in the context of their counter-terrorism policies. Part One of this article briefly surveys the background to the enactment of the 2002 Law. Part Two introduces the main features of the 2002 Law and offers a few critical observations thereon. Part Three discusses a 2008 Supreme Court judgment in which a constitutional challenge to the validity of the 2002 Law was discussed and rejected. Part Four summarizes the principal changes introduced by a 2008 amendment to the Law, and Part Five takes stock of the application of the 2002 Law in practice. A few concluding observations are then be offered.

When the United States Disappeared People into Guantanamo, Their Parents, Wives and Children Suffered Torture

Peter Jan Honigsberg

University of San Francisco – School of Law

The United States is a nation that has committed a grave human rights violation. It has disappeared people into Guantanamo Bay, Cuba.

And for nearly thirty years, there has been a well-developed body of international law establishing that parents, wives and children of the disappeared suffer torture or cruel, inhuman or degrading treatment.

This paper argues that the rights of family members were violated when their loved ones were disappeared into Guantanamo. This article also explains how the United States has evaded accountability. The families deserve legal redress.

Beginning with a decision in 1983 from a case that arose in Uruguay, and continuing up to the present, international courts and oversight bodies have determined that families suffer torture or CID for the disappearance of their loved ones.

Family members of men disappeared by America have legitimate claims for torture or CID against the United States government under both international law and American law. However, rather than providing a forum to address the plaintiffs’ sufferings of grave or egregious human rights violations, the United States seeks to block or evade all claims. And, in doing so, the United States has proven to be a powerful and skilled adversary both domestically and internationally.

Not only did the detainees themselves suffer enormously in Guantanamo, but the parents, wives and children of the men who were disappeared into Guantanamo also grievously suffered. My work with the Witness to Guantanamo project inspired me to write of these human rights violations, and informs the content of the article.

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