1. Al-Adahi v. Obama (D.D.C. Feb. 12, 2009) (Kessler, J.)
Judge Kessler has issued an opinion concluding that the government’s “search” obligation when it comes to identifying and disclosing potentially relevant information runs to information reviewed in connection with any GTMO habeas factual return (not just the return for a particular detainee), but that the obligation to does not run more generally. See the opinion and accompanying case management order.
2. Gherebi v. Obama (D.D.C. Feb. 13, 2009) (Walton, J.)
Judge Walton has issued an order instructing the parties in the GTMO petitions to be prepared at a February 18th status conference to set a schedule for resolving the issue of the scope of the government’s military detention authority. Judge Walton did not forbid the administration from arguing for a case-by-case approach as it attempted, unsuccesfully, before Judge Bates in Hamlily v. Obama on the 11th, but he did signal that this is not likely to work and that he wants the government prepared to set a schedule for addressing the general scope of detention authority.
3. Forthcoming Scholarship
Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law
Kal Raustiala (UCLA)
Offshoring is usually thought of in the context of globalization and economic activity. Yet a signal feature of the Bush Administration’s “war on terror” was the offshoring of core security functions. The most famous example is the use of Guantanamo Bay as a detention center, but many other examples of extraterritorial activity exist, such as the practice of “extraordinary rendition.” This chapter, drawn from a forthcoming book from Oxford University Press titled Does the Constitution Follow the Flag?, charts and analyzes these developments, and associated judicial decisions such as Boumediene v. Bush, with reference to larger trends in American politics and jurisprudence.
Following the attacks of 9/11, President George W. Bush declared that the United States was in a “global war on terrorism”. His administration claimed the wartime privileges to kill without warning and detain without trial anyone suspected of association with terrorist organizations anywhere in the world. These claims were made in the face of contrary international law. Under international law, a war or armed conflict is characterized by organized armed groups engaged in intense, armed hostilities. To meet these criteria, such groups are associated with territory. In addition to the concept of armed conflict, the concept of conflict zone is important. Killing combatants or detaining them without trial may be permissible when done in a zone of actual armed hostilities. Outside such a zone, however, authorities must attempt to arrest a suspect and only target to kill those who pose an immediate lethal threat and refuse to surrender.
States hire private military or security companies [PMSCs/contractors] in armed conflict and occupation to fulfil tasks formerly exclusively handled by soldiers, including combat, guarding and protection, and detention and interrogation. PMSC personnel, like soldiers, can and do violate or act incompatibly with International Humanitarian Law and Human Rights Law. Relying on the International Law Commission’s Articles on State Responsibility, the article compares the responsibility of states for such conduct of their soldiers with that which states incur with respect to the conduct of contractors they hire. It reveals a regulatory gap which states seeking to reduce their exposure to international responsibility can exploit. Positive obligations of states under International Humanitarian Law narrow this gap to some degree. An analysis of the duty to prevent demonstrates that the potential of positive Human Rights Law obligations to bridge the gap – although important – remains limited by their due diligence nature, and problems of extraterritorial applicability. It is then argued that the conduct of certain contractors exercising coercive functions can be attributed to the hiring state as that of persons forming part of its armed forces in the sense of the customary provision enshrined in Article 3 of Hague Convention IV of 1907 and Article 91 of Additional Protocol I. Where this is the case, the state will be responsible for their conduct as it would be for that of its soldiers, which fully eliminates the regulatory gap.
TARCISIO GAZZINI, affiliation not provided to SSRN
The article discusses the impact of recent military interventions in Kosovo, Afghanistan and Iraq on the rules governing the use of force in international law. It argues that, in spite of some egregious violations, existing rules have not been changed or fallen into desuetude. The attempt to dismantle the collective security system and the claim to relax beyond recognition the general prohibition on the use of force have found the strong opposition of the overwhelming majority of the UN membership. Furthermore, existing rules and Article 51 of the UN Charter have proved flexible enough to protect States against the threats posed by terrorism and weapons of mass destruction. Their application, nonetheless, remains extremely problematic and confirms the need for a collective control over the use of military force.
This article explores the temporal dimension of the right of self-defense, in particular, the controversy relating to the possibility of responding to the potential threat of attack which has resulted from the publication by the U.S. Government of its National Security Strategy document in 2002, in which the U.S. Government claimed a right to use force to pre-empt such threats. In assessing the temporal scope of self-defense an examination is made of the dual customary-Charter nature of the right of self-defence and conclusion is drawn that both sources of law are relevant in assessing any claim to use force in advance of an armed attack on the basis of the Caroline criteria of immediacy, necessity and proportionality, which are still relevant today.
Change has been the source of many recent proposals concerning United Nations (UN) reform, and because that report has also been a focal point of discussion concerning the law that ought to govern the use of force, it is appropriate to consider closely the report’s treatment of that subject. Viewing the topic afresh, one would suppose that a useful commentary would have addressed four questions:
(1) What security threats do states face in the twenty-first century?
(2) What rules are in place to meet those threats?
(3) Do the rules work?
(4) If not, how can they be fixed?
NOËLLE QUÉNIVET, affiliation not provided to SSRN
In 2004, the United Nations Secretary-General published the report of the high-level panel of experts on threats, challenges and change that projected a comprehensive strategy to fight various types of scourges that afflict humankind and notably terrorism. The report and the following world summit documents inscribe themselves in established trends set by the State community and the United Nations in the past decades. Since 11 September, five different wide-encompassing strategies have been offered to the State community to come to terms with terrorism. This article focuses on this proliferation of documents and their inconsistency in terms of content. Yet, it also pinpoints the common thread that runs through the documents, namely that the comprehensive strategy must address the root causes of terrorism, strengthen States and promote the rule of law and human rights, three targets that can be reached by the implementation of a strong policy of capacity-building. In all cases, the State community works on the premise that weak and rogue States will consent to be helped in building national and regional capacity to combat terrorism. Undoubtedly, convincing weak and rogue States to abide by international standards will require more than just capacity-building to deflect terrorism. Rather, the United Nations will need to conceptualise general measures to prevent and reverse state failure, which in turn means that the strategy must be indeed ‘comprehensive’.
SUSAN C. BREAU, affiliation not provided to SSRN
This article examines the impact of the doctrine of the Responsibility to Protect on Peacekeeping in the United Nations. One of the key debates in peacekeeping is whether there is a duty to use force to protect civilians from genocide, crimes against humanity and war crimes. The practice of UN peacekeeping is evolving in many instances, with the notable exception of Darfur, into robust peacemaking actions with a positive responsibility to protect civilians within the field of operations. This article reviews the development of the concept of the responsibility to protect and then applies the various parts of the doctrine to actual situations of threats to international peace and security.
NATALINO RONZITTI, affiliation not provided to SSRN
Since the entry into force of the UN Charter, self-defence has become the preferred excuse for States to justify their use of force, for use of force is in principle banned not only by the Charter but also by modern constitutions. The author examines how States are stretching the notion of this permissible use of force to justify their armed actions in foreign territory. Although it is still the object of controversy between continental and overseas lawyers, a consensus seems to be emerging on the lawfulness of anticipatory self-defence, provided that it is given a narrow interpretation. On the contrary, pre-emption has not gained currency within the international community. Another emerging consensus is related to the origin of an armed attack, which may come not only from States but also from non-State entities to trigger the right of self-defence. The author suggests that a declaratory GA resolution, such as the ones on Friendly Relations and on the Definition of Aggression, could clarify the subject. However, his conclusion is pessimistic, because States prefer to leave the boundaries of self-defence undefined to retain their freedom of action.
MARTEN ZWANENBURG, University of Leiden
The leitmotiv of this article is the recommendation by the High-Level Panel on Threats, Challenges and Change that authorisation from the Security Council should in all cases be sought for regional peace operations. It discusses the legal basis for such operations, and three recent regional peace operations are analysed in detail: African Union Mission in Sudan (AMIS), Economic Community of West African States in Cote d’Ivoire (ECOFORCE) and Economic and Monetary Community of Central Africa in the Central African Republic (FOMUC). This article concludes that the practice with respect to these operations does not support a requirement of Security Council authorisation, where there is consent of the parties or, it appears, the government of the host state alone.
ERIC ROSAND, affiliation not provided to SSRN
This article first briefly outlines the current terrorist threat posed by militant Islamist radical terrorism and the complexity and evolving nature of threat. It highlights the lack of consensus in academic and policy communities regarding the underlying causes of this terrorism. It them posits that the overarching challenge in the next few years will be to maintain the broad-based international co-operation in the fight against terrorism that has existed since 11 September 2001, which is essential to address the threat effectively. Elements of this challenge include dispelling the notion that the US-led counterterrorism effort is targeting Islam and keeping the global South engaged. Durable, effective and flexible mechanisms are needed at the global, regional and national levels to ensure that multifaceted, holistic strategies are developed and implemented to address these issues. The article then outlines the current capacity of multilateral institutions to contribute to the fight against terrorism. The performance of the main UN counterterrorism bodies – led by the Security Council’s different counterterrorism entities – as well as some of the key regional and functional ones, this article concludes, has been uneven. Different organisations have developed counterterrorism programs and units, but these have emerged from political reactions rather than strategic decisions with corresponding achievable technical objectives. The duplication of efforts, overlapping mandates and lack of co-ordination at the international, regional and sub-regional levels have limited the different bodies’ overall contribution to the global non-military counterterrorism effort and have left many of the world’s vulnerabilities to terrorism unaddressed. This article concludes that maintaining international co-operation and the focus on capacity-building and other non-military counterterrorism measures, as well as the need to address the proliferation of counterterrorism bodies, highlights the need for an effective multilateral body at the center of the effort. The UN Security Council’s Counter-Terrorism Committee was supposed to be this body, but it has been unable to fulfill its broad mandate effectively. The article details the limitations of the current UN Security Council-led approach and the inherent, political, administrative and budgetary challenges of operating within the UN system that would make it difficult to co-ordinate global capacity-building efforts effectively. While it proposes a possible short-term improvement – the consolidation of the different parts of the Security Council counterterrorism program into as single body – in the end, it argues that a new international body dedicated to counterterrorism outside of, but perhaps related in some way to, the UN may be needed.