Much of the international legal debate about regulating force and self-defense takes place on a substantive axis, focusing on the scope of force prohibitions and exceptions. This Article instead focuses on their doctrinal form, or modes of argumentation and analysis through which facts are assessed in relation to legal directives, to illuminate how many of the assumptions about substantive policy goals and risks tend to be coupled with other assumptions about the way international law operates in this field. It shows that the flexible, adaptable standards favored by some states, scholars, and other international actors and the fixed rules and processes favored by others reflect not only competing assessments of threats and the policy utility of force wielded beyond the Security Council’s authorization but also different sets of interlocking, foundational assumptions about international law and the conditions for its effectiveness. These include differences over how legal-doctrinal form relates to external enforcement pressures and how it generates compliance pull within states. This Article shows that exposing and prising apart some assumptions underlying doctrinal orientations – assumptions that are usually obscured or overshadowed when debates are framed in terms of substantive permissiveness versus stringency – opens and clarifies options for reforming the legal regime regulating force, and it proposes avenues of further analysis of doctrinal form in this area.
WADIE E. SAID, University of South Carolina School of Law
Aziz Rana’s article presents clearly the overlooked but crucial question of “Who Decides on Security?” Namely, is determining who or what groups constitute a threat something that we are capable of making ourselves, or must we necessarily cede that authority to those in power — who supposedly have both the access to knowledge and the ability to understand it — to protect us from threats we cannot perceive? Using Rana’s historical analysis as a framework, this Article builds on his thesis to show how the wide latitude granted to the conclusions of the Executive Branch’s national security specialists in political matters has migrated into the criminal justice system. This Article focuses on the specific example of expert witnesses in federal criminal terrorism prosecutions and demonstrates that courts have been overly deferential in allowing such individuals to testify as experts. As a result, courts admit too much expert testimony of questionable methodology and reliability against defendants charged with terrorist crimes. This Article provides several examples of the phenomenon of deference to the government’s experts, as well as a focused critique of the practice of using experts to win convictions in such cases.
LAURIE R. BLANK, Emory University School of Law
Detention at Guantanamo, targeting of individuals with drones, use of civilians to warn the targets of military operations, use of military commissions – courts in the United States and abroad have grappled with these and other questions extensively over the past decade and more. These issues, and others that arise in the course of armed conflict and counterterrorism operations, bring the role of national courts in the implementation and enforcement of international humanitarian law into direct relief. Courts faced with wartime cases encounter two critical determinations before even reaching the merits of the case: whether to apply international humanitarian law and, if so, to what extent. The answers to those two questions will then likely have a major impact on the disposition of the case.
Any actors engaged in the implementation or enforcement of international humanitarian law – whether lawyers, military operators, political leaders or others – must have a clear understanding of how their national courts will approach cases involving international humanitarian law. This essay will analyze what factors cause courts to choose to apply – or not apply – international humanitarian law and how much of it they will apply. Knowing how the law actually applies to the facts at hand is, of course, critical to the preparation of any case, military operation, advocacy campaign or other action. In the international humanitarian law paradigm, however, this analysis must go beyond the specific substantive law. A court’s initial decision about whether to apply IHL or to what extent it applies, relative to human rights law, for example, will have a significant effect on the merits of the case. Because the process – which law and how much law – is substantively determinative, on a broad strategic level, predicting or understanding how courts will approach the legal framework as cases arise is important for effective advocacy, operational and political decision-making and long-term legal analysis.
Journal of Conflict and Security Law 2012 17: 187-209
Notre Dame Legal Studies Paper No. 12-70
MARY ELLEN O’CONNELL, Notre Dame Law School
Which government agency should have primary responsibility for the Internet? The USA seems to have decided this question in favour of the military — the US military today has the largest concentration of expertise and legal authority with respect to cyberspace. Those in the legal community who support this development are divided as to the appropriate legal rules to guide the military in its oversight of the Internet. Specialists on the international law on the use of force argue that with analogy and interpretation, current international law can be applied in a way that allows great freedom without sending the message that the USA is acting lawlessly when it comes to the Internet. Others reject this argument as unnecessary and potentially too restrictive. The USA need not observe international law rules, especially not with respect to the Internet. The way forward is to follow the Cold War strategy of threatening enemies with overwhelming force and preparing to act on these threats. This article also questions the application of international law on the use of force to the Internet. Rather than rejecting international law in general, however, the thesis here is that international law rules governing economic activity and communications are the relevant ones for activity on the Internet. Moving away from military analogy in general and Cold War deterrence in particular, will result in the identification and application of rules with a far better chance of keeping the Internet open and safer for all.
City University of New York (CUNY) – Department of Political Science
American University Law Review, Vol. 61, p. 1331, 2012
In the decade since 9/11, much has been written about the “War on Terror” and the lack of justice for people detained at Guantanamo or subjected to rendition and torture in CIA black sites. A central focus of the critique is the unreviewability of Executive branch action toward those detained and tried in military commissions. In those critiques, the federal courts are regularly celebrated for their due process and other rights protections. Yet in the past ten years, there has been little scrutiny of the hundreds of terrorism cases tried in the Article III courts and the state of the rights of people accused of terrrorism-related offenses in the federal system. The deference to assertions of national security that degraded protections for detainees at Guantanamo has similarly degraded the protections for Muslims facing terrorism charges in the federal courts. This Essay provides a close examination of one of those cases — that of Syed Fahad Hashmi — and reveals rights abridgement throughout the legal process (intrusive surveillance, vague material support charges, the use of prolonged pre-trial solitary confinement, classified evidence, the use of political activities to demonstrate mindset and intent). The federal courts have permitted such rights abridgements,largely abdicating their role as a check on Executive power and imperiling the rights of those being tried in the Article III courts.