Category Archives: Human Rights

Requiem for Korematsu?

Stephen Dycus reviews Professor Eric K. Yamamoto’s timely book In the Shadow of Korematsu: Democratic Liberties and National Security, published just weeks before the Supreme Court decided Trump v. Hawaii. Dycus draws out the book’s core themes, highlighting Yamamoto’s analysis of the Korematsu decision and its continued relevance in American jurisprudence. The review concludes with a discussion of Yamamoto’s proposed process for judicial review in cases that involve both national security and civil liberties.

From Protecting Lives to Protecting States: Use of Force Across the Threat Continuum

Retired Brigadier General Kenneth Watkin’s new book, Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict, helps address some of the issues with the increasingly blurred line between international humanitarian law and human rights law. Professor Mitt Regan’s review addresses the trends that Watkin regards as posing novel challenges for states accustomed to traditional concepts of the use of force and discusses Watkin’s concepts that are especially relevant to the question of how much the traditional categories of law enforcement guided by human rights principles and armed conflict governed by international humanitarian law should continue to frame thinking about the use of force. Regan also critiques Watkin’s use of the binary framework of law enforcement and armed conflict to guide analysis.

Countering the Prominence Effect: How US National Security Lawyers Can Fulfill Non-Prominent Humanitarian Objectives

Decision researchers describe a “prominence effect” that leads decision makers to choose an option with more defensible attributes when quantitative assessment of those options is difficult. Prominence is hypothesized as a factor in US policy decisions not to use military force to prevent or stop humanitarian crises. Prominence is also regarded as a behavioral failure affecting both the general public and public officials that can be mitigated to improve welfare outcomes in transnational security decisions. This article—by David G. Delaney and Paul Slovic—considers those hypotheses as they relate to attorneys advising the US president and other senior public officials addressing transnational security issues. It proposes a combination of institutional, organizational, and individual steps to mitigate prominence and related behavioral failures.

Preventive Detention for National Security Purposes in Israel

By Dvir Saar & Ben Wahlhaus

Since the beginning of the 21st century, democratic states have increasingly been forced to confront the threat of terrorism on multiple fronts: at home, at the borders, and abroad. One tool that states have employed to protect the population is preventive detention. While highly effective in countering national security threats, significant steps need to be taken to avoid the risk of unjustified detention.

In this article, Saar and Wahlhaus aim to contribute to the ongoing deliberation on this issue by presenting the Israeli experience regarding preventive detention against the backdrop of international law, experience acquired while contending with a wide range of national security threats over several decades.

The authors explore the three different Israeli legal frameworks that regulate preventive detention in Israel, by describing and analyzing the different legislation and conducting a comprehensive survey of the case law (including previously unpublished cases). A comparative analysis of the three frameworks concludes the article.

Lessons from the diverse Israeli experience may serve to inform other states that are attempting to strike the proper balance between national security and avoiding the risk of unjustified detention, as well as inform contemporary international initiatives concerning detention.

Preventive Detention for National Security Purposes in Israel

The Border and Beyond: The National Security Implications of Migration, Refugees, and Asylum Under US and International Law

In the United States, the discussion about immigration is dominated by a narrow focus on the security of the borders, particularly the southern border, and the potential threats posed by people who seek enter the country. However, the national security implications of the refugee crisis go way beyond the borders. Protecting refugees, rather than keeping them out, is a national security imperative.

The Border and Beyond: The National Security Implications of Migration, Refugees, and Asylum Under US and International Law