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 Days.  This 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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