forthcoming scholarship

Leveling the Deference Playing Field

Kathryn E. Kovacs (Rutgers)

Judicial deference to federal agency expertise is appropriate. What is not appropriate is the judicial tendency to give the military more deference than other agencies not only in cases that directly implicate military expertise, but also in administrative law cases raising constitutional, environmental, and employment issues. This article argues that the military should receive no greater deference than other agencies under the Administrative Procedure Act. The APA established a single standard of judicial review for all agencies. Recent empirical studies have confirmed, however, what the case law has long revealed: that courts often apply different standards of review to different agencies, and specifically a “super-deference” standard to the military. This article demonstrates that the APA’s exception for “military authority exercised in the field in time of war,” interpreted correctly, insulates core military functions from judicial review, thus removing any basis for giving the military heightened deference as a matter of course. That exception accommodates separation of powers concerns raised by judicial interference with the President’s authority as Commander in Chief, and it removes concern about courts second-guessing military expertise in particular by making actions that directly implicate that expertise unreviewable.

 

“Regulating the Irregular – International Humanitarian Law and the Question of Civilian Participation in Armed Conflicts” Description: Free Download

EMILY CRAWFORD, University of Sydney – Faculty of Law

In the more than thirty years that have passed since the adoption of the Additional Protocols to the Geneva Conventions of 1949, there has been no revisiting of the Geneva laws, to see whether they still effectively regulate their subject-matter. Indeed, even if the Geneva Conventions were debated for revision, it seems highly unlikely that such revision would go ahead. There are so many parties that have a stake in the conduct of armed conflict that it seems doubtful that any kind of consensus could be reached. A graphic example of the difficulties of achieving consensus was seen during the Expert Process convened to discuss the concept of Direct Participation in Hostilities. Disagreements over the final text, known as the Interpretive Guidance on Direct Participation in Hostilities, resulted in almost a third of the fifty experts involving withdrawing their names from the document. Given this background, this paper will look at the history of international humanitarian law relating to regulating irregular participation in armed conflict, as a case study to demonstrate the increasingly difficult task of achieving consensus on the international plane. From the first provisions in the Hague Regulations regarding levee en masse, to the Geneva Conventions and the Additional Protocols, this paper will look at how non-conventional combatancy has been regulated, and examine the debates surrounding the expansion of the category of combatant. This paper will culminate in an analysis of the ICRC Expert Process on Direct Participation in Hostilities; and argue that both the final Interpretive Guidance, and the controversy leading up to and surrounding its publication, is demonstrative of the obvious stumbling blocks facing any new treaties regarding participation in armed conflict.

Homeland Security: What Is It and Where Are We Going?”

 

Amos N. Guiora (Utah)

CRC Press (2011)

 

As the ten-year anniversary of 9/11 approaches, one critical question persists. Have policies enacted to protect us from terrorist attacks actually made us safer, or have they merely mollified the concerned public with a false sense of security? Homeland Security: What Is It and Where We Are Going combines professional experiences, personal reflections, and academic  scholarship to provide a realistic assessment of current policy effectiveness.

Determining a Legitimate Target: The Dilemma of the Decision Maker

Amos N. Guiora  (Utah)

Texas International Law Journal, Forthcoming
Nation states are under attack by non-state actors; whether non-state actors present an existential threat to nation states is debatable, probably unlikely. Nevertheless, the threat to innocent human life that terrorism poses must not be underestimated. Because terrorist organizations have defined the innocent civilian population as legitimate targets, the state must develop and implement aggressive counter terrorism measures. That, in a nutshell, is the state of the world post 9-11. While reasonable minds may disagree as to the degree of threat that terrorism poses, there is little (never say never) disagreement that terrorism poses a (not necessarily the) threat to the nation state.

This reality has forced decision makers to address terrorism and terrorists literally ‘on the fly’. In retrospect, Tuesday morning September 11, 2001 not only caught world leaders by surprise, most were unprepared and untrained to respond in a sophisticated and strategic manner. In the US, as thoroughly documented elsewhere, the lack of preparation directly contributed to significant violations of human rights including torture, rendition, indefinite detention and unauthorized wiretapping. The executive branch in the US chose a path of granting itself unprecedented powers, with Congress and the Supreme Court largely acquiescing.

While historians will judge whether this combination made America safer, the wise words of Benjamin Franklin – “those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety” – were largely ignored in the aftermath of 9/11. The ten year anniversary of 9/11 serves as a useful benchmark for looking back to gauge what measures have been implemented, to what degrees of effectiveness, and at what cost. The anniversary additionally serves as a useful benchmark for looking forward and addressing how to develop, articulate and implement changes to existing counterterrorism strategy. This article will not offer a broad retrospective of post 9/11 decisions; rather, the article will focus on the definition of legitimate target.

Discussion regarding the AMW manual is particularly relevant to the question of legitimate target. After all, air and missile warfare is directly related to the legitimate target dilemma. Any analysis of air and missile warfare must include discussion regarding defining a legitimate target and then, subsequently, determining when the individual defined as legitimate is, indeed, legitimate. In that context, the link between legitimate target and AMW is inexorable.

Two central questions with respect to operational counterterrorism are who can be targeted and for when is the identified legitimate target a legitimate target. Those two questions go to the heart both of self defense and the use of power. In a counterterrorism regime subject to the rule of law, use of power is neither unlimited nor unrestrained. Regimes subject neither to external or internal restraints may engage in maximum use of force; needless to say, operational results will be uncertain.

A comparative survey of operational counter terrorism is telling for it highlights how distinct approaches color the legitimate target discussion: The Russian experience in Chechnya presents a particularly stark example of maximum force with questionable results. Conversely, Spain’s experience in the aftermath of the Madrid train bombing reflects a different paradigm, one implementing minimum force and maximum restraint. Seven years after 204 Spaniards found their deaths at the hands of Islamic extremists, Spain – as these lines are written – has not experienced a second attack. China’s policy regarding Uyghur’s in Xinxiang Province is best captured in its name: “Strike Hard” campaigns; India, largely in the face of Pakistani supported and facilitated terrorism, has adopted a policy of restraint predicated, largely, on mutual assured deterrence. Colombia’s policy, in the face of twin threats posed by drug cartels and terrorists is aggressive, not dissimilar from China’s. Israel and the US have largely, but certainly not consistently, sought to implement person-specific counterterrorism policies. Policies implemented by the US and Israel include targeted killing/drone attacks, Operation Cast Lead, and detainment of thousands of individuals in Afghanistan and Iraq, often for what can best be described as little, if any, cause.

With the primary focus on who is a legitimate target and when is the target legitimate, the article will be organized as follows: Section I offers a ‘word of caution’ in an age of uncertainty; Section II discusses operational counter terrorism; Section III offers a survey of how the term legitimate target has historically been defined and applied in the battlefield; Section IV focuses on the non-state actor and international law; Section V discusses defining the legitimate target; Section VI focuses on the practical application of the legitimate target discussion from the commander’s perspective; the conclusion proposes a road map moving forward regarding both definition and application of legitimate target.

 

Seductive Drones: Learning from a Decade of Lethal Operations

Mary Ellen O’Connell (Notre Dame)

JOURNAL OF LAW, INFORMATION & SCIENCE AND FACULTY OF LAW, UNIVERSITY OF TASMANIA

The world’s fleets of unmanned combat vehicles (UCVs) are growing exponentially. This contribution aims to raise awareness that the very existence of UCV technology may well be lowering the inhibitions to kill. At least two sets of data indicate a problem: First, we have evidence from psychological studies that killing at a distance using unmanned launch vehicles may lower the inhibition to kill on the part of operators. Second, we have a decade of evidence of US presidents deploying military force where such force was unlikely to be used prior to the development of UCVs. This evidence indicates that the availability of UCVs lowers political and psychological barriers to killing. At the same time, an increasing number of international law specialists are arguing that it is lawful to kill terrorism suspects wherever they are found or to kill them if they are found in ‘weak states.’ These arguments seem intended to support policy decisions already taken, rather than providing rigorous analysis of the relevant international law.

International law establishes a high bar to lawful resort to lethal force. That high bar is derived from the Just War Doctrine and so reflects not just a legal norm, but a moral norm as well. Much policy on resort to lethal force, by contrast, appears to be related to Realist power politics ideology rather than international legal authority. Within Realism, resort to lethal force, killing, is acceptable to send a message of strength or to promote the perception of power in the form of military power. Even among policy makers not committed to Realist power projection there may be a belief in the utility of lethal military force to suppress terrorism that is not warranted by the record.

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