frontpage In the Journal Intelwars Volume 11

Volume 11, Issue 1

A Comparative Study of Domestic Laws Constraining Private Sector Active Defense Measures in Cyberspace
by Brian Corcoran

The U.S. private sector is vulnerable in cyberspace. In response, an increasingly mainstream national security argument calls for amending U.S. law to permit private sector actors to employ so-called “active defense” measures—a group of loosely-defined technical measures that fall on a spectrum between passive firewalls (clearly legal) and offensive counterattacks (clearly illegal). Proponents argue that such measures could slow, identify, or even deter offenders in cyberspace; provide unclassified evidence for use in civil cases; or support a government response. Critics warn of careless or incompetent actors and second-order effects—of companies starting a war. Strikingly, the U.S. debate over active defense measures is missing a comparative view of the rest of the world. There are no answers to straightforward descriptive questions, such as, “are active defense measures illegal (or otherwise constrained) in other countries?”This Article is the first sizable study to answer some of those basic comparative questions. It surveys the laws of twenty countries, (1) finding a remarkable uniformity of approaches that, while not yet rising to the standard of an international norm or custom, is closer than most assume and (2) concluding that even if Congress relaxes U.S. law to permit certain private sector active defense measures, laws around the world will continue to constrain private sector activity.

The Syrian Detention Conundrum: International and Comparative Legal Complexities
by Dan E. Stigall

The phenomenon of battlefield detention by non-state groups is increasingly common and has been recently brought into focus by events in Syria where, as part of the international effort to counter the Islamic State of Iraq and Syria (“ISIS”), the United States and coalition partners have worked “by, with, and through” a non-state armed group called the Syrian Democratic Forces (“SDF”).  That successful partnership has resulted in significant battlefield victories—and the resultant detention by SDF of more than 2,000 ISIS foreign fighters. A detention conundrum has, however, been created by the modern reliance by states on non-state actors for counterterrorism operations, and their simultaneous reluctance to accept the return of terrorists captured and detained by non-state actors in the course of those operations. Specifically, SDF partners have signaled that they do not have the capacity or authority for the continued detention of the foreign terrorist fighters captured in the course of the successful counter-ISIS effort. Moreover, the countries of origin of these captured terrorists are reluctant to accept their return, citing to legal obstacles to repatriation. The inability of non-state partners to detain foreign fighters indefinitely, coupled with the refusal of countries to repatriate their nationals, risks the release of dangerous terrorists. To assist in navigating this complex situation, this Article illuminates the international and comparative legal issues associated with the detention of terrorists by non-state armed groups and clarifies the legal issues relating to the repatriation of detained foreign terrorist fighters by the SDF in Syria. Through this analysis, the Article ultimately demonstrates that international law and the domestic law of many international partners generally permits the lawful transfer of foreign fighters from the custody of a non-state entity to government authorities for prosecution, rehabilitation, or other appropriate means of preventing their return to terrorism.

Law Wars: Experimental Data on the Impact of Legal Labels on Wartime Event Beliefs
by Shiri Krebs

On June 1, 2018, Razan Al-Najjar, a twenty-one-year-old Palestinian paramedic, was killed by Israeli fire during demonstrations along the Israel-Gaza border. Her death triggered intense debates about whether Israeli soldiers intentionally targeted her, in violation of international law. Despite the many fact-finding efforts, the facts are not settled, the legal debates linger, and meaningful accountability seems further away than ever. This episode highlights the growing focus of wartime investigations on legal truth. Furthermore, it suggests that, in the context of the Israeli-Palestinian conflict, framing facts in legal terms triggers backlash, anger, and denial. In other words, using legal terminology to frame public perception of wartime events is ineffective for dispute resolution. This Article explores this general claim employing interdisciplinary theories and methods using the 2018 Gaza border demonstrations as an illustrative example. It then tests these hypotheses with a 2017 survey experiment fielded in Israel with a representative sample of 2,000 Jewish-Israeli citizens. This experimental data provides systematic evidence of the effect legal labels have on people’s beliefs about contested wartime actions committed by their fellow nationals. The findings demonstrate that discussing events using common legal labels, such as “war crimes,” significantly decreases Jewish-Israelis’ willingness to believe information about Palestinian casualties and fails to stimulate feelings of empathy toward the victims. Jewish-Israelis tend to reject facts described using war crimes terminology and are more likely to feel anger and resentment than guilt or shame. These findings contribute to the broader debate about the role played by international law during armed conflicts, suggesting that, rather than serving as an educational and informative tool, it is cynically perceived as a political tool.

A Postmortem for International Criminal Law? Terrorism, Law and Politics, and the Reaffirmation of State Sovereignty
by Vincent-Joël Proulx

This Article explores the intersection of International Criminal Law and domestic legal systems in the counterterrorism arena, with a particular focus on the United Nations Security Council’s promulgation of relevant legal obligations. This account critically examines the ways in which ICL, and international law more broadly, can address terrorism, and then investigates the viability of expanding the International Criminal Court’s jurisdiction to encompass crimes of terrorism. In analyzing ground-breaking UNSC resolutions imposing wide-ranging counterterrorism duties on states, I shed light on that organ’s “quasi-legislative” exercise of its powers and the implications for the implementation of those obligations in domestic law. Ultimately, I argue that the global counterterrorism campaign can only be pursued meaningfully through what I term a “transnational network of criminal and civil law.” This system is based on giving states the power to write and enforce their own counterterrorism laws under a UNSC mandate.

Photo by Astrid Riecken (CC BY 2.0)

Featured frontpage In the Journal Intelwars

Volume 10, Issue 2

Issue 2

Totemic Functionalism in Foreign Affairs Law
by Elad D. Gil

In many Western democracies, and particularly in the United States, foreign affairs are primarily an executive enterprise. Owing to the executive’s relative institutional advantages over the legislature and the judiciary—in expertise, knowledge, speed, unitary structure, and democratic accountability—courts afford the President considerable deference in cases relating to foreign affairs. But there is something deeply flawed in the way judges apply functionalist reasoning in this context. Instead of using functionalism for what it is—a contextual and adaptable paradigm for ascertaining whether and how much deference is desired in order to make the challenged policy or act work best—judges frequently simply rely on the executive’s special competence to apply a de facto presumption of near-total deference, which this Article terms “totemic functionalism.” This Article traces the conceptual underpinnings of totemic functionalism and critically analyzes its pervasive effect in foreign affairs law. Using three case studies and other recent examples, it then shows how totemic functionalism undermines the system of checks and balances, first between the organs of government and then, indirectly, inside the executive branch.

Getting Past the Imperial Presidency
by Deborah Pearlstein

In an age in which the “imperial presidency” seems to have reached its apex, perhaps most alarmingly surrounding the use of military force, conventional wisdom remains fixed that constitutional and international law play a negligible role in constraining executive branch decision-making in this realm. Yet as this Article explains, the factual case that supports the conventional view, based largely on highly selected incidents of presidential behavior, is meaningless in any standard empirical sense. Indeed, the canonical listing of presidential decisions to use force without prior authorization feeds a compliance-centered focus on the study of legal constraint rooted in long-since abandoned understandings of how and why legal systems function. While the reality that law does not operate as an on/off switch has long been accepted among legal scholars when it comes to ordinary law—all legal rules face “the fact of violation,” uncertainty in meaning, and a complex array of human motives and incentives for acting—these phenomena seem yet to have informed our understanding of law’s role in shaping decision-making surrounding state uses of force. This Article argues that accounting for these features of law is especially relevant to the study of constitutional and international regulations of state use of force. Applying a more contemporary understanding of how law works, the Article illustrates how shifting our methodological approach away from compliance-centered metrics of legal constraint may require reinterpreting the conventional set of examples we have long assumed we understood. At a minimum, it requires redesigning our approach to the empirical study of executive branch decision-making. And it suggests we may need to rethink what mechanisms may most effectively constrain the “imperial presidency” in the years ahead.

The Mutual Assistance Clauses of the North Atlantic and EU Treaties: The Challenge of Hybrid Threats
by Aurel Sari

Mutual assistance clauses serve a dual purpose. They commit their signatories to stand up to a common threat and are thereby meant to deter potential aggressors. Their dual purpose places them at the crossroads between war and peace and the intersection between law and strategy. The rise of hybrid threats, however, has led many to question whether the mutual assistance guarantees found in the North Atlantic and EU Treaties remain suited for our present security environment. Adversaries employ tactics that increasingly seem to blur the dividing line between war and peace. The hybridization of warfare thus poses a risk that adversaries may circumvent classic security guarantees. The purpose of this Article is to compare the mutual assistance clauses of the North Atlantic and EU Treaties to determine their scope of application, clarify the nature and extent of the obligations they impose on the contracting parties, and assess their vulnerability to hybrid threats. The analysis confirms that the provisions in question are at risk of subversion, but that the impact of this threat is more limited than is often assumed. Nevertheless, this Article argues that there is no room for complacency. NATO, the EU, and their member states should take steps to strengthen legal interoperability in order to increase the legal resilience of their collective security arrangements against the challenges posed by hybrid threats.

The Law Enforcement Paradigm under the Laws of Armed Conflict: Conceptualizing Yesh Din v. IDF Chief of Staff
by Shelly Aviv Yeini

While the two traditional paradigms for the use of force in international law are law enforcement under international human rights law and conduct of hostilities under laws of armed conflict, this Article examines the possibility of a new paradigm of law enforcement under the laws of armed conflict. In the judgment of Yesh Din v. IDF Chief of Staff (Yesh Din) recently given by the Supreme Court of Israel, the court endorsed this entirely new paradigm, which challenges the traditional distinction between law enforcement and the conduct of hostilities. This Article explores the legal justifications of the paradigm and examines whether it has legal grounds to rely upon. It further demonstrates that the new paradigm is vague, permissive, and extremely under-developed. The new paradigm has the potential to be abused by states picking and choosing the norms they wish to apply from either international human rights law or the laws of armed conflict. It is a common saying that “hard cases make bad law.” The arguably problematic judgment of Yesh Din is the result of a complicated and challenging situation that has created bad law indeed.

Credit: Illustration by Adam McCauley

Featured frontpage In the Journal Intelwars

Volume 10, Issue 1

Issue 1

Yemen: Is the U.S. Breaking the Law?
by Oona Hathaway, Aaron Haviland, Srinath Reddy Kethireddy and Alyssa T. Yamamoto

The almost four-year long brutal civil war in Yemen between the central government of President Abdu Rabbu Mansour Hadi and a Shi’a Islamic movement called the Houthis shows no signs of slowing. A coalition of countries led by Saudi Arabia has provided extensive support to President Hadi, including by conducting an ongoing military campaign against the Houthis. In the course of this military campaign, the Saudi-led coalition has been accused of violating international humanitarian law by killing hundreds of civilians through airstrikes, as well as contributing to a humanitarian disaster by imposing a blockade. Though not a member of the Saudi-led coalition, the United States has provided invaluable support to the coalition’s campaign through weapons sales, mid-air refueling of coalition aircraft, targeting assistance, and other training and logistical support. This Article surveys and analyzes a variety of domestic and international law that may apply to the U.S. role in Yemen and finds that continued U.S. support for the Saudi-led coalition in Yemen may violate several domestic and international laws. The article concludes by considering whether and how the laws might be enforced and U.S. legal violations brought to an end.

The Return of Gunboat Diplomacy: How the West has Undermined the Ban on the Use of Force
by Patrick C. R. Terry

This article outlines how the West’s manifold attempts at reforming the jus ad bellum, by permitting an increasing number of exceptions to the ban on the use of force, has led to a serious weakening of the structures on which the conduct of international affairs has rested since the end of WWII. The belief that the invocation of novel justifications for resorting to the use of force could be restricted to the West and its close allies has proved unfounded as many states from Russia via the Arab peninsula to Turkey are now also laying claim to the right to use force in an increasing number of cases. Thus what was once heralded as a modernizing effort actually has led to an erosion of the ban on the use of force.

Uncertainty in the Law of Targeting: Towards a Cognitive Framework
by Michael N. Schmitt and Major Michael Schauss

This article offers a cognitive framework for thinking about the confluence of uncertainty and the IHL rules governing targeting. In abstract discussions, the tendency has been to understand the requisite level of certainty for engaging a target as a particular threshold, that is, as “certain enough” to satisfy the requirement to confirm a target as a military objective, qualify harm as collateral damage or military advantage that must be factored into the proportionality calculation, or require the taking of feasible precautions in attack to minimize harm to civilians and civilian objects. In our view, this approach neither reflects targeting practice, nor adequately operationalizes the balance between humanitarian considerations and military necessity that all “conduct of hostilities” rules must reflect. We suggest that the issue is more nuanced, that dealing with uncertainty involves a multifaceted situational assessment when planning, approving or executing attacks. The article is our attempt to widen the aperture of discussion about battlefield ambiguity and doubt.

War Powers far from a Hot Battlefield: Checks and Balances on Presidential War-Making through Individual and Unit Self-Defense
by E. L. Gaston

While soldiers, marines, and their surrounding units have long been assumed to have a right to defend themselves, reliance on this right to individual and unit self-defense has expanded significantly since 2001. It has been applied to uses of force across a range of conflict situations, from being regularly used to counter ambiguous and asymmetric threats in Iraq and Afghanistan, to justifying drone strikes and low-footprint special forces engagements far from a “hot battlefield.” In the latter situations, though, the legal remit to use force is more controversial, and use of individual and unit self-defense to justify significant strikes or engagement in hostilities have raised legal questions. This article will explore the domestic and international legal bases for these extended self-defense strikes and operations.

Fiduciary Duty, Honor, Country: Legislating a Theory of Agency into Strategic Civil-Military Relations
by Major Dan Maurer

Dissent, annoyance, mutual frustration, misplaced trust, breaches of confidentiality, unwelcome candor, and differing senses of obligation, loyalty, and service are all recurring themes in the day-to-day theater that is the civil-military relationship between American political and military strategic elites. The health of these relationships matters significantly for the fitness of the outcomes for which these parties are accountable. Wars (whether and how to fight them), budgets (how much to spend, on what, and for whom), force structure (how to organize the means of national defense), and personnel (who to recruit and retain, and who—if anyone—should be excluded from service) are the critical issues, and these parties often disagree over these fundamental questions. The efficiency, prioritization, thoughtfulness, and public explanations of these issues will also be turbulent in the wake of unsteady, rocky strategic civil-military relationships. Congress, no less than the Executive Branch and military leaders, has a stake and a say in these relationships.

Photo: Reuters