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Estreicher on Defender’s Duties in Armed Conflict

NYU Law Pro­fes­sor Samuel Estre­ich­er has post­ed an inter­est­ing work­ing paper on SSRN, titled Priv­i­leg­ing Asym­met­ric War­fare?: Defend­er Duties Under Inter­na­tion­al Law.  Here is the abstract:

Schol­ar­ship and advo­ca­cy needs to bring defend­er duties to the fore­front of any dis­cus­sion and inves­ti­ga­tion of armed con­flicts. The nec­es­sar­i­ly joint con­tri­bu­tion of attack­ers and defend­ers alike to civil­ian harm must be rec­og­nized. Any inves­ti­ga­tion of an armed con­flict must focus on the duties of both par­ties and eval­u­ate the fea­si­bil­i­ty of attack­er com­pli­ance with some of the more open-end­ed oblig­a­tions of inter­na­tion­al human­i­tar­i­an law (IHL), such as the so-called duty of pro­por­tion­al­i­ty, as a func­tion in part of the extent of defend­er com­pli­ance with its duties.

There are open areas in IHL. States that have acced­ed to Addi­tion­al Pro­to­col (AP) I are not nec­es­sar­i­ly bound by ICRC inter­pre­ta­tions and they and states that have declined to rat­i­fy AP I can play an active role in for­mu­lat­ing and urg­ing oth­ers to adopt rules of prac­tice that strike the right bal­ance between attack­er and defend­er duties. Even if, for exam­ple, there is wide­spread inter­na­tion­al recog­ni­tion that, at some abstract lev­el, the duty of pro­por­tion­al­i­ty is ground­ed in cus­tom­ary law, the con­tent of that duty is not nec­es­sar­i­ly iden­ti­cal to the word­ing con­tained in AP Arti­cle 57. The effec­tive­ness of such a duty, includ­ing the abil­i­ty of mil­i­tary com­man­ders to imple­ment it in the air and on the ground, may well depend on seri­ous con­sid­er­a­tion, elab­o­ra­tion and imple­men­ta­tion of defend­er duties, for defend­ers are often in the supe­ri­or posi­tion to min­i­mize civil­ian expo­sure to the dan­gers of mil­i­tary oper­a­tions.

Defend­er duties in armed con­flicts is a neglect­ed area of IHL. This needs to change if the over­all mis­sion of this body of law – min­i­miza­tion of harm to civil­ians – is to have any rea­son­able prospect of being real­ized.

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Making Amends

Over at Opinio Juris this morning, my good friend and colleague Scott Paul introduced the Making Amends Campaign, which is led by the Campaign for Innocent Victims in Conflict (CIVIC).  Scott and CIVIC are working to develop a general practice…

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Book Review: The Least Worst Place (Karen Greenberg)

Con­tin­u­ing with the theme of armed con­flict, deten­tion, and ter­ror­ism, the lat­est install­ment in our occa­sion­al series of book reviews address­es Karen Greenberg’s The Least Worst Place: Guantanamo’s First 100 DaysThis review may also be found in Issue 42:3 of the Jour­nal of Inter­na­tion­al Law and Pol­i­tics.

By John Wun­der­lin

In the pref­ace to The Least Worst Place: Guantanamo’s First 100 Days, Karen Green­berg briefly sets out the aim of the book: to describe the ear­ly days of the Guan­tanamo Bay deten­tion facil­i­ty, in which few abus­es occurred despite incred­i­bly try­ing cir­cum­stances, and to ask whether this nar­ra­tive sheds any light on how lat­er abus­es came to occur and how such abus­es might be avoid­ed in the future. Per­haps in def­er­ence to the com­plex­i­ty and dif­fi­cul­ty of the sub­ject, Green­berg nev­er tries to for­mu­late the lessons as a set of pol­i­cy pre­scrip­tions. Nev­er­the­less, she suc­ceeds in devel­op­ing a strong under­stand­ing of how cer­tain forces and cir­cum­stances gath­ered to cre­ate a dis­as­ter at Guan­tanamo while oth­er forces worked to keep dis­as­ter at bay.

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Book Review: Terrorism, War and International Law (Myra Williamson)

This occa­sion­al series will high­light the book anno­ta­tions that con­sti­tute the back pages of every issue of the NYU Jour­nal of Inter­na­tion­al Law and Pol­i­tics.  We are begin­ning with this review of Myra Williamson’s Ter­ror­ism, War and Inter­na­tion­al Law: The Legal­i­ty of the Use of Force Against Afghanistan in 2001, because it rais­es the cru­cial ques­tion of the right of States to use force in self-defense against non-State actors.  This issue sits in the back­ground of much of the current debates about the use of force, most recent­ly in Pro­fes­sor Alston’s Tar­get­ed Killings report.

By Gra­ham F. Dumas

Myra Williamson’s Ter­ror­ism, War and Inter­na­tion­al Law: The Legal­i­ty of the Use of Force Against Afghanistan in 2001 comes at a time when the con­flict in Afghanistan is return­ing to the fore of U.S. for­eign pol­i­cy and as the fight against ter­ror­ism con­tin­ues to expand. Yet many of the legal ques­tions sur­round­ing this con­flict were sim­ply glossed over at the time of the invasion and have not yet been sat­is­fac­to­ri­ly resolved.

Bas­ing her argu­ment main­ly on legal his­to­ry, Williamson asserts that the use of force against Afghanistan could not be legal­ly con­sid­ered self-defense accord­ing to the U.N. Char­ter because there was no armed attack for the pur­pos­es of Arti­cle 51, because the Secu­ri­ty Coun­cil did not autho­rize uni­lat­er­al force in Res­o­lu­tion 1368, and because Al Qaeda’s actions could not be attrib­uted to the Tal­iban. Sim­i­lar­ly, the author argues that the inva­sion of Afghanistan was not legal under cus­tom­ary inter­na­tion­al law because it was nei­ther nec­es­sary nor pro­por­tion­ate, and there was no imme­di­ate threat of attack in the weeks fol­low­ing Sep­tem­ber 11.

In vig­or­ous­ly assert­ing the ille­gal­i­ty of the inva­sion of Afghanistan, Williamson rais­es a num­ber of inter­est­ing points
and pro­vokes a great deal of thought, espe­cial­ly with respect to the many weak­er links in the argu­ment for the invasion’s law­ful­ness. As she notes, the Inter­na­tion­al Court of Jus­tice (ICJ) has held on numer­ous occa­sions that Arti­cle 51 applies only to armed attacks by states, and the link between Al Qae­da and the Tal­iban is indeed ten­u­ous, espe­cial­ly under a clas­si­cal inter­pre­ta­tion of the law. Par­tic­u­lar­ly insight­ful is the study of the opinio juris of var­i­ous NATO mem­bers with respect to that organization’s dec­la­ra­tion that an armed attack occurred; the author sug­gests that what appeared to be a unan­i­mous dec­la­ra­tion that Sep­tem­ber 11 was suf­fi­cient to trig­ger the inher­ent right of self-defense was in fact any­thing but. Despite these effec­tive points, Ter­ror­ism, War and Inter­na­tion­al Law is a dis­ap­point­ing and ulti­mate­ly unsuc­cess­ful effort which leaves out more than it includes, treats as fact sev­er­al high­ly con­tentious claims nec­es­sary to sup­port the main the­sis, and often fails to address the post-Afghanistan era’s most press­ing legal ques­tions.

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Thoughts on the Targeted Killings Report

By Ben Heath

To con­tin­ue the dis­cus­sion of Pro­fes­sor Philip Alston’s report on tar­get­ed killings, I can imag­ine no bet­ter dis­cus­sion on the self-defense ratio­nale for drone strikes than that pre­sent­ed by Marko Milanovic at the EJIL blog.  (At Opinio Juris, Ken­neth Ander­son promis­es a response, which will most cer­tain­ly pro­vide for inter­est­ing debate.)

I also ful­ly agree with Milanovic’s cri­tique of Alston’s asser­tion that, out­side of armed con­flict, “the use of drones for tar­get­ed killing is almost nev­er like­ly to be legal.”  This state­ment is unnces­sar­i­ly con­clu­so­ry: there should be some lim­it­ed room for these strikes in the law enforce­ment par­a­digm of human rights, pro­vid­ed that the tar­get pos­es a sig­nif­i­cant dan­ger, that no oppor­tu­ni­ty for cap­ture exists, etc.  One imag­ines that this might be the case in coun­tries where the gov­ern­ment holds only loose con­trol over wide swaths of ter­ri­to­ry.  But, to be sure, drone strikes on the New Jer­sey Turn­pike are almost cer­tain­ly ille­gal.

I would not pre­sume to step fur­ther into such well-cov­ered ground.  Instead, I will use this space to high­light some oth­er aspects of the report, while rec­og­niz­ing that these are def­i­nite­ly side­notes to the major issues.

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New Issue: Forum on Direct Participation in Hostilities

We are pleased to announce that the Spring 2010 issue of the Jour­nal of Inter­na­tion­al Pol­i­tics is now avail­able online.  The bulk of Issue 42:3 is ded­i­cat­ed to dis­cus­sion of the ICRC Inter­pre­tive Guid­ance on the Notion of Direct Par­tic­i­pa­tion in Hos­til­i­ties, which was released last year.  The Forum fea­tures four respons­es to the work Inter­na­tion­al Com­mit­tee of the Red Cross:

  • Brig. Gen. (Ret.) Ken­neth Watkin, of the Cana­di­an Forces, dis­cuss­es the con­cept of “orga­nized armed groups” in the ICRC doc­u­ment.
  • Prof. Michael N. Schmitt, of Durham Uni­ver­si­ty Law School, ana­lyzes the ICRC’s fram­ing of the con­sti­tu­tive ele­ments of “direct par­tic­i­pa­tion.”
  • Air Cdre. Bill Booth­by of the RAF focus­es on the tem­po­ral dimen­sion of direct par­tic­i­pa­tion.
  • Col. (Ret.) W. Hays Parks, of the U.S. Depart­ment of Defense Office of Gen­er­al Coun­sel, crit­i­cizes the document’s restraints on the use of force in direct attack.

The Forum also con­tains a detailed response from Nils Melz­er, legal advis­er to the ICRC and author of the Inter­pre­tive Guid­ance doc­u­ment.  Pro­fes­sors Ryan Good­man (NYU School of Law) and Derek Jinks (Uni­ver­si­ty of Texas at Austin; U.S. Naval War Col­lege, 2009-10) present a brief intro­duc­tion.

In addi­tion, Issue 42:3 con­tains two illu­mi­nat­ing dis­cus­sions of the TRIPS regime, the World Trade Organization’s agree­ment on intel­lec­tu­al prop­er­ty rights.  Both exam­ine the bilat­er­al IP treaties fre­quent­ly known as TRIPS-Plus, which gen­er­al­ly pro­vide IP pro­tec­tion above and beyond that guar­an­teed by the orig­i­nal muli­ti­lat­er­al TRIPS agree­ment.  Beat­rice Lind­strom focus­es on TRIPS-Plus agree­ments in Asia and the Pacif­ic, and aruges that they have neg­a­tive exter­nal effects on stake­hold­ers who are not rep­re­sent­ed in nego­ti­a­tions.  Matthew Turk presents a much more san­guine view of TRIPS-Plus.  He argues that, while defects in the bar­gain­ing process argue for a “pro-devel­op­ment” inter­pre­ta­tion of the orig­i­nal TRIPS agree­ment, no such defects exist­ed in TRIPS-Plus nego­ti­a­tions.  There­fore, he con­cludes that the terms of TRIPS-Plus treaties should be inter­pret­ed lit­er­al­ly, to best effec­tu­ate the intent of the par­ties.

The issue also con­tains our usu­al roundup of book anno­ta­tions, many of which will be post­ed on this blog in the com­ing weeks.  Click the jump for more on Direct Par­tic­i­pa­tion in Hos­til­i­ties.

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