Robert J. Delahunty (University of St. Thomas School of Law (Minnesota))
Vermont Law Review (2013, Forthcoming)
Recent years have seen a revival in interest in the work of Robert Jackson – Franklin Roosevelt’s Attorney General and later Associate Justice of the Supreme Court. Jackson’s account of Executive power in his concurring opinion in the Steel Seizure Case is widely celebrated. But that opinion needs to be read against the backdrop of his earlier work as Attorney General and his judicial opinions in other leading war powers cases, including his notable dissent in Korematsu. Starting with a close analysis of Attorney General Jackson’s controversial 1940 opinion in the "destroyer deal" case – which was written at the point at which Hitler seemed poised to defeat Britain – this essay investigates whether and how far Jackson accepted some form of Presidential "prerogative" to act, even unconstitutionally, in the face of critical emergencies threatening the life of the nation.
Dawood I. Ahmed (University of Chicago – Law School)
Journal of International Law and International Relations (Toronto), forthcoming
Victim states occasionally use force to target non-state actors that have allegedly attacked the victim state, on the pretext that the host state is “unwilling or unable” (“ineffective”) to act. The international law permissibility of such force is unclear: state responsibility principles do not hold ineffective states liable, the universe of state practice is small and the International Court of Justice and some scholars deny the legality of such force while others disagree. This article is the first dedicated to a critical analysis of the “unwilling or unable” doctrine from both, a law and policy perspective. It argues that, although a right of self-defense in ineffective host states may be desirable in light of contemporary security threats, extant scholarship on the doctrine suffers from blind spots. Not only has debate been almost exclusively doctrinal but, in focusing myopically on the security concerns of victim states vis a vis non-state actors, scholars have paid little attention to security vulnerabilities of host states vis a vis victim states. In fact, much of the literature on the “unwilling or unable” doctrine unquestionably assumes that it should be the victim state that should self-determine when another state is ineffective and fails to recognize two conditions that make erroneous determinations particularly likely. First, host states tend to be weak states, susceptible to coercion and unable to retaliate against misbehavior by powerful victim states. Second, even if the international community is willing to punish erroneous uses of force, since host state ineffectiveness may not be observable, detection of misbehavior becomes very difficult. This article argues that any serious analysis of the doctrine must be based on an appreciation of these conditions and suggests that a right of self-defense on grounds of state ineffectiveness must thus be subject to corresponding constraints. It accordingly proposes an alternate framework to induce transparency: victim states seeking to rely on ineffectiveness as grounds for self-defense must disclose claims of host state ineffectiveness to the Security Council which acts as a fact-finder and information transmitter for the benefit of the international community. The host state can challenge the claim of ineffectiveness while the Counter-Terrorism Committee can provide empirical information as to that host state’s ability and willingness to comply with anti-terrorism obligations.
The Individualization of War: From Collectivism to Individualism in the Regulation of Armed Conflicts
Gabriella Blum (Harvard Law School)
Law and War, Sarat, Douglas, Umphrey eds., Stanford University Press, 2013
In a celebrated humanitarian move, wartime regulation has evolved from a predominantly state-oriented set of obligations — which viewed war as an inter-collective effort — to a more individual-focused regime. In fact, the regulation of armed conflict increasingly resembles, at least in aspiration, the regulation of police activities, in which it is the welfare of individuals, rather than the collective interest of the state, that takes center stage.
I demonstrate that many contemporary debates over the laws of war, including the distinction between the jus ad bellum and jus in bello, proportionality, detention of combatants, and reparations for victims implicate exactly the tension between collectivism and individualism in the regulation of armed conflict.
I further argue that notwithstanding the humanitarian benefits of the move to greater concern over the human rights of those affected by war, reimagining war as a policing operation harbors real dangers that must not be overlooked. These include imagining more of policing as war, inhibiting military action for the protection of others, and inviting more aggressive acts “short of war” against targets around the world.
The primary focus of this paper is on the legal implications of the geographical disjunction between the location of drone strikes and the primary battlefields for the application of international humanitarian law.
[More, from p.1:]
Defining the geographical scope of an armed conflict is a matter that carries weight in more ways than one.1 Outside the legal sphere the question might seem like one that requires nothing more than common sense – if two (or more) parties are engaged in battle, then the area of conflict is wherever they are fighting. The reality – or at least the legal reality – is unfortunately one that does not conform to simple formulations. Being ‘at war’ or ‘going to war’ does not necessarily mean that the whole of a state is in fact embroiled in an armed conflict. For example, while most of Iraq became a zone of armed conflict in 2003, life for most people in the United States continued uninterrupted while its troops invaded a country on the other side of the globe. This can even be the case for both states involved, as was seen in the 1982 Falklands/Malvinas conflict between the UK and Argentina.2 The same is true for armed conflicts between a state and an organised armed group, which may be raging in one part of the country with little manifestation in other areas as is evident from the armed conflict between the armed forces of the Philippines and the Moro Islamic Liberation Front (MILF), which, for more than 20 years, was largely confined to the southern island of Mindanao.3 Clearly then, the actual hostilities do not necessarily correspond with the borders of the states(s) concerned. Another possibility is to base the determination of geographical scope on the existence of actual fighting. In other words, wherever there are hostilities, there is an armed conflict. But this too has its obstacles, including the question of how to determine what should count as hostilities, and whether there must be a temporal consistency within a specific geographical area that would eliminate occasional flare-ups from the scope. These issues will be returned to in greater detail in later sections.