In association with the International Commission of Jurists

Symposia

18 Jun

[Paul Schiff Berman is Dean and Robert Kramer Research Professor at George Washington University Law School.] Thanks to Peter and all the other bloggers for providing an opportunity to explore the ideas in my recent book, Global Legal Pluralism. I start from the premise that we live in a world of legal pluralism, where a single act or actor is potentially regulated...

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18 Jun

We’re delighted this week to host a discussion of Paul Schiff Berman's "Global Legal Pluralism: A Jurisprudence of Law Beyond Borders" (Cambridge University Press). Paul is the Dean and Robert Kramer Research Professor of Law at George Washington University Law School. This is a rich and broadly argued book (Paul confesses to being a "lumper," I think in the best...

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06 Jun

[Andrew Altman is Professor of Philosophy, and Director of Research for the Jean Beer Blumenfeld Center for Ethics, at George State University.] This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below. In his contribution to Targeted Killings, Fernando Tesón argues that the threat posed by terrorism is sui generis and cannot be adequately addressed by either a pure law-enforcement or a pure armed-conflict model.  The law-enforcement model is inadequate “[b]ecause the terrorist threat is ubiquitous, the threatened harm is great, and the terrorist is committed as a matter of principle to perpetrating the harm (424).” Yet, Tesón resists the idea that liberal states are in global war with terrorists and rejects the armed-conflict model, because it entails the conclusion that “terrorists are enemy combatants who can be killed on sight regardless of the threat they actually pose” (424).  The conclusion is unacceptable for Tesón, because it fails adequately to reflect the liberal commitment to due process of law.  His solution is an effort to split the difference between the two models. Terrorists who are to be found in a “wartime setting” (420), such as exists Afghanistan and Somalia, are in a state of war with liberal states, according to Tesón, and are permissibly targeted with lethal force.  But a terrorist in Paris or New York is in a “peacetime setting,” it is morally prohibited to kill him on sight, unless the killing is “necessary to prevent the death of a substantial number of innocents,” the killing is carried out for a “just cause,” the terrorist is culpable, and capture is “impossible or prohibitive” (423).  Tesón acknowledges that the line between a peacetime and wartime setting “is often difficult to draw,” (421) but he argues that the idea of a wartime setting “should be interpreted narrowly” and is even prepared to accept that Osama bin Laden’s killing took place in a peacetime setting (430).  In a wartime setting, “the ordinary tools of crime control cannot operate” (420)  because the condition is essentially a state of nature, in contrast to a peacetime setting in which “there is an actual sovereign ... who ... can use the standard tools of crime control” (420).  Because states are prone to mistake in determining when a killing is necessary and because, regardless of its possible good consequence, the practice of targeted killing in a peacetime setting amounts to a violation of the liberal rule of law, Tesón argues that there should be a legal ban on such killing, unless the highest executive authority publicly waives the ban and, at least after the killing has been carried out, “fully explain[s] to the citizenry” (433) its reasons for doing so.
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05 Jun

[John C. Dehn is a nonresident senior fellow in West Point's Center for the Rule of Law. The views presented here are his personal views.] This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below. Let me first congratulate Claire Finkelstein, Jens Ohlin, and Andy Altman for compiling wonderfully...

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05 Jun

[Richard Meyer is Director, LLM Program, at the Mississippi College School of Law.] This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below. In his chapter in Targeted Killings, Col. Mark “Max” Maxwell sets out to solve the gaps left by the ICRC guidance concerning continuous combat function.  His proposal attempts to analogize the terrorist organization to the traditional state and, as a result, find that members of their military arm be treated just like those of the uniformed member of a state’s military.  Maxwell argues that the true message of the ICRC guidance is a return to status based rather than mere conduct based targeting of certain civilians.  Just like the uniformed military, if they are a member of the armed group engaging in hostilities, they can be targeted based on their membership in that group without ever having engaged in hostilities personally.  His three pronged test can be summed up as:  1) determine if a armed group that is engaging in hostilities exists; 2) Using a “totality of the circumstances” analysis, determine if the intended target is a member of this group; 3) Attacks must minimize civilian casualties.  This is certainly a more workable and pragmatic paradigm for the uniformed military than Melzer’s argument that only after an individual has engaged in hostilities (on multiple occasions?) can his continuous targetability be determined.  Further, Maxwell’s chapter serves as an excellent primer on the current confusing paradigm of targeted killing caused by the conflation of human rights law and international humanitarian law.  His desire to evolve IHL is certainly a step in the right direction.  I have one objection to his proposal. Following the bad example of the AUMF, Maxwell’s proposal conflates the entirely segregable legal realms of jus ad bellum and jus in bello.  During WWII, the US declared war on Germany, Japan & Italy.  Thus the armed forces of those three countries, and only those three countries, were targetable on sight by American military forces.  Hypothetically, even if Spanish uniformed military forces were actively providing combat support services to the German military or were proven to have actually sent planes and participated in the attack on Pearl Harbor, the American Soldier, from Private Smith to General Eisenhower did not have legal authority to engage those forces except in self-defense.  Thus, only after the state’s jus ad bellum decision identifies the macro enemy can the combatant’s jus in bello determination identify the individual target.  This is a corollary to the long held principle of the law of war that the merits of a jus ad bellum decision do not alter the legal culpability of a jus in bello act in compliance with that decision.  Said another way, the otherwise eviscerated “following orders” defense is alive and well as it relates to the decision to go to war.  This is necessary, lest the members of a state’s military individually bear the legal culpability for a collective political decision. In an effort to facilitate a conflict with a nontraditional opponent, the AUMF did not identify a status based macro enemy, (e.g. the State of Germany) but instead identified a conduct based “…nations, organizations or persons the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,2001.”  This declaration delegates to the President, in his role as the Commander-in-Chief and (by potential further delegation) the military commander the power and responsibility to make both the jus ad bellum and jus in bello decisions.  Constitutional separation of powers issues aside, if the soldier has any role (other than as a voter or advisor) in the jus ad bellum decision, this severely undercuts the legal and moral justification that soldiers should not be held accountable for collective jus ad bellum decisions.  The soldier is protected from liability because the choice to go to war was not his to make… until now.  Paralleling this error, Maxwell creates a three-pronged analysis that also intermixes jus ad bellum and jus in bello decisions.  The first prong of Maxwell’s analysis requires the finding that there is an organized armed group engaging in combat with the state.  At first blush, it appears that Maxwell presupposes the existence of an armed conflict.  Armed conflicts however, currently require two competing macro entities (be they states or non state groups).  Thus, if the first prong is answered in the negative and there is no such armed and organized group “combating the state,” then there is no armed conflict; IHL does not apply and we are locked into the law enforcement paradigm.  Conversely, if there is such a group, the state might have the option of engaging that group under IHL.  Thus, prong one appears to be within the legal realm of jus ad bellum.  Prongs two and three, however, are both the jus in bello determinations of verification of status (for a status-based attack) and minimizing collateral damage/deaths.  Maxwell could argue that this is parallel to the traditional paradigm.  As noted, in that, the state makes the jus ad bellum decision and individuals make the jus in bello decisions, providing the latter with protection from legal responsibility for the former.  However, Maxwell assigns all three decisions to the collective state and none to the individual combatant.  In theory, this would place the legal culpability for all three decisions on the collective state and none on the individual, which would be a return to a near full-fledged following orders defense. At first blush, this appears to be semantics… Perhaps Maxwell used the term “state” to refer to both the collective and to the individual determinations of its military.  This does not actually solve the conflation issue however, because the first prong also involves currently simultaneous jus ad bellum and  jus in bello determinations.  To illustrate this point, I will divide his first prong into what I believe are the appropriate four steps contained within it.
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04 Jun

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

In his comments to my chapter “Targeting Co-Belligerents,” Craig Martin asks a very pertinent question: Is the US really in an armed conflict with al-Qaeda?  Or, more abstractly, can a state ever be in an armed conflict with a non-state terrorist organization?  Martin is correct to assume that an affirmative answer to this question is necessary before any of the in bello linking principles are used in my analysis.

Although this is an issue that I largely cabined from my argument in the chapter, it is now a question that very much animates my current research.  Here is my thinking:  At least part of the skepticism regarding the existence of an armed conflict with AQ or other NSAs, stems from an uncertainty regarding classification.  The armed conflict allegedly cannot be a non-international armed conflict (NIAC) because it crosses international boundaries.  On the other hand, though, it cannot be an international armed conflict (IAC) because one of its parties is not a traditional state actor – presumably a condition-precedent for any IAC.  It not falling into either sub-category, it cannot be an armed conflict at all.

I find this argument suspicious, though my thinking on the issue is still evolving.  I am not quite clear on the supposed legal evidence for the proposition that IAC and NIAC occupy the entire field of the concept of armed conflict.  That’s only true when the concepts are defined in opposition to each other (where NIAC would simply refer to anything that is not a traditional IAC).  That was the style of analysis that the Supreme Court used in Hamdan, and that led them to conclude that the armed conflict against AQ was indeed a NIAC.  I found this argument persuasive.

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04 Jun

[Craig Martin is Associate Professor of Law at Washburn University School of Law, and author of another of the chapters in Targeted Killings]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below. Jens Ohlin’s chapter in Targeted Killings, “Targeting Co-Belligerents,” provides an important analysis of one of the key questions in the targeted killing debate, and makes a persuasive argument in favor of one possible response to it. In doing so, however, I wonder if it leaves another fundamental question hanging, which I lay out below for him to address. First, however, let me provide a sketch of his argument. Jens begins by noting how the US targeted killing policy, and the transnational terrorism against which it is directed, raises difficult questions regarding which legal regime should be controlling. Not only is there an ongoing debate as to whether responses to terrorism should be governed by domestic criminal law within a law enforcement paradigm, or public international law in the context of armed conflict, but even for those who accept the armed conflict paradigm there are debates over whether the principles of jus ad bellum or jus in bello are best suited to justify the targeted killing. Against that backdrop, and assuming for the sake of his analysis that some targeted killing will be permissible in some circumstances, Jens addresses the question: “who can be targeted and why?” His stated objective is to investigate “the tension between national security and civil liberties through a distinctive framework: what linking principle can be used to connect the targeted individual with the collective group that represents the security threat?” As he explains, regardless of whether one approaches the problem from a jus in bello or a jus ad bellum perspective, the problem of linking the individual targeted to some collective is an essential step in the justification process.
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04 Jun

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.] In April 2011, a group of legal scholars gathered at the University of Pennsylvania Law School for a conference on targeted killings.  The idea was to bring together experts in diverse fields – international law, legal and moral philosophy, military law, and criminal law – into...

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31 May

[Jason Webb Yackee is an Assistant Professor of Law at the University of Wisconsin School of Law.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. It’s a pleasure to receive such thoughtful (and in Professor Wong’s case, humorous) feedback on my short VJIL Essay, and I greatly appreciate their engagement with the piece. I intended the Essay to be provocative but not absurd in its policy recommendations. My main suggestion (that states should think seriously about incorporating “corruption defense” in their investment treaties) is, I think, not inconsistent with the views of either commenter. Neither is my more basic suggestion, which is that even in the absence of corruption-specific BIT language, the fact of an investor’s involvement in public corruption related to its investment is likely to be of legal relevance to the investor’s ability to fully access the procedural and substantive protections of BITs. In other words, I think that we would all probably agree that there is already a viable “corruption defense,” and also that it might be useful to better specify the contours of the defense through explicitly corruption-related treaty language. Where we primarily differ is on the desirable contours of the defense. My scheme is self-consciously pro-state. It imposes serious consequences on the investor who engages in corruption. It is, as Professor Bjorklund accurately points out, supply-side in its focus, just as are the U.S. Foreign Corrupt Practices Act and its non-U.S. equivalents. This supply-side focus bothers Professors Wong and Bjorklund. It seems unfair to them to exclusively punish investors when corruption, by its nature, takes two to tango. It doesn’t bother me as much to sanction one partner and not the other. My premise — unstated in the essay, I admit — is that the supplier of corruption (here, the investor) is probably in some meaningful sense the “least cost avoider” of corruption. The tort law equivalent is a liability regime that places the full cost of compliance on the person who throws a banana peel on the sidewalk, rather than on the inobservant pedestrian who slips on it and falls. My sense (and it is just that at this point) is that it is comparatively difficult for developing countries already afflicted with corruption to prevent it, let alone to eradicate it. It is hard for states to monitor and control the actions of their agents, or to adjust incentive structures to discourage corruption. In contrast, corporations have an advantage in implementing effective training and compliance programs, in disciplining corporate actors who violate corruption laws, and in rewarding those who abide by corporate anti-corruption policy. Indeed, corporations are already spending heavily to implement effective corruption-prevention programs in order to avoid violations of or liability under the US and UK anti-bribery statutes, the penalties for violation of which can be immense. I would suggest, in effect, that the BIT regime should piggyback on these efforts by imposing on companies whose compliance systems fail the additional cost of the loss of their BIT privileges, rather than insisting that the high-cost avoider — the state — be expected to successfully duplicate the already expensive anti-corruption investments of multinational corporations.
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31 May

[Jarrod Wong is an Associate Professor of Law at the University of the Pacific McGeorge School of Law.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. This intriguing Essay by Jason Yackee proposes that host states may well have a corruption defense against claims brought by investors under bilateral investment treaties (BITs) based on underlying investment contracts that, while facially unobjectionable, have been procured by bribing public officials. The argument extrapolates nicely from the denial of claims in an arbitration, decided in 1963 by Judge Lagergren, involving a politically well-connected Argentine seeking to enforce a “commission” contract guaranteeing some percentage of state contracts awarded by Argentina to the foreign investor, and in the World Duty Free ICSID case, in which the investor sought compensation for expropriation by Kenya of a concession acquired by bribing the then President of Kenya. While neither claim arose under BITs, both were denied on grounds of violating international public policy, which one --- or least these tribunals --- might conceivably extend to BIT claims. However, I wondered whether Yackee, in his determination to clear a path to the promised land, sufficiently acknowledges the perils on the road. For instance, neither tribunal above was expressly authorized to apply international law; indeed, ICSID tribunals --- which determine many BIT claims --- are to apply “applicable” international law only “in the absence of [the parties’ agreement on applicable law].” While noting this fact, Yackee was prepared to interpret the willingness of both tribunals to invoke (with how much deliberation?) international law as indicating an inherent authority to do so, rather than question the assumption. All the more troubling when the supposed “rule” of international law applied is of the nebulous variety conveniently labeled “international public policy.” (The wry among us might freshly inquire as to how this description differentiates other international law rules.) Shouldn’t we require such policy to crystallize into something akin to customary international law before permitting its application under these tenuous circumstances? Further, should the host state bear no responsibility when a state official accepts the bribe and is equally culpable? The World Duty Free tribunal neglected to weigh this fact in the context of international public policy, although it considered the issue under applicable national laws, only to hide behind Latin maxims ---- the in pari delicto and ex turpi causa principles --- in refusing to calibrate the equities more precisely. (Really? The President of Kenya walks off with $2 million, and the best the Tribunal’s got is a dead language?) Would the World Duty Free outcome not perversely incentivize host states to encourage bribery behind dummy anticorruption legislation since this gives license to flout BIT obligations?
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