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Abstract: There are an estimated 250,000 child soldiers - boys and girls under the age of 18- who are being compelled to serve in more than 15 conflicts worldwide. Child soldiers are forcibly recruited or abducted and are used as combatants, messengers, porters, cooks and to provide sexual services. International Law now recognizes child soldiers as victims of war crimes. The U.S. Department of Homeland Security, however, has opposed asylum to child soldiers on the grounds that their military service subjects them to the “persecutor bar.” This article argues that a per se bar of child soldiers from asylum contradicts the U.S.’s adherence to the international view that the use of child soldiers constitutes a violation of human rights, domestic laws declaring recruitment of child soldiers a crime, and active support of the eradication of the use of child soldiers. The article concludes by offering an approach to determining when a child soldier should be subjected to the persecutor bar that balances the seriousness of the child soldier’s actions against the circumstances under which s/he was recruited.
Abstract: Waging war with a combination of regular troops and private security company
(PSC) contractors can be done; however, at times the contractors act at cross-purposes
with the stated objectives of the campaign. Abuses by PSCs in the recent wars in Iraq
and Afghanistan have, according to some analysts, undermined the mission.5 Local inhabitants
are not the only people who object to these incidents. Regular troops do so as
well; discipline suffers. And even the President of the United States, before assuming
the responsibilities of commander-in-chief of the nation’s armed forces, presciently
noted that “we cannot win a fight for hearts and minds when we outsource critical missions
to unaccountable contractors.” The issue of accountability remains salient. While the United States’ criminal justice
system has made strides toward holding PSCs accountable—namely by extending
military court-martial jurisdiction over PSC troops and permitting federal district
courts in the United States to try certain crimes committed abroad—these advances do
not go far enough. Haling civilians before courts-martial may be unconstitutional, and
the framework for bringing accused criminals back to the U.S. is rarely used. Ultimately,
these approaches ignore the military need for swift, visible punishment; the
lack of teeth also sends the dangerous message to troops that tossing off a uniform
leads to a tripling of one’s salary and freedom from obeying those pesky laws of war.
This article explores how to prevent that from happening. The first section details
the perceived impunity to the law enjoyed by PSCs and its effect on regular troops in
Iraq and Afghanistan. The second section discusses how to bring PSCs before the law
through an examination of the relevant international law.
Abstract: This is the executive summary of an investigation report submitted to Gen. Stanley McChrystal, Commander NATO?ISAF/US Forces-Afghanistan. The investigation, led by U.S. Army Maj. Gen. Timothy McHale, Deputy Commander for Support, U.S. Forces Afghanistan, reviewed the actions of a U.S. Special Forces Operational Detachment Alpha (ODA) unit and its higher headquarters, coalition aircraft, and support provided by U.S. Air Force Predator Unmanned Aerial Vehicle (UAV) personnel. The report concluded that three vehicles carrying more than 30 civilians were mistaken for an insurgent convoy and engaged by coalition aircraft. The ODA ground force commander believed the vehicles contained a group of insurgents attempting to execute a flanking maneuver to reinforce insurgents in his area.
Abstract: A “government of national unity” was formed in Guinea on January 15, 2010, a year after a
military junta, the National Council for Democracy and Development (CNDD), took power in a
coup d’état. While the CNDD has not been dissolved, it has agreed to share power with civilian
opposition groups in the lead-up to presidential elections, scheduled for June 27, 2010. Defense
Minister Sekouba Konate has assumed executive power as interim president, while opposition
spokesman Jean-Marie Dore was named prime minister. The formation of a unity government followed six weeks of political uncertainty after CNDD
President Capt. Moussa Dadis Camara was shot in December 2009 by a member of his personal
guard and evacuated for medical treatment. The appointment of the unity government has
temporarily stemmed international concerns over political instability in Guinea and its potential
spillover into fragile neighboring countries, such as Liberia and Côte d’Ivoire. However, concerns
remain over the political will to hold elections, impunity and disorder among the security forces,
and the potential for “spoilers” to disrupt Guinea’s long-awaited transition to civilian rule. The United States, which had been highly critical of Dadis Camara’s erratic leadership, has
expressed support for Guinea’s transitional government. At the same time, certain restrictions on
U.S. bilateral assistance and targeted travel restrictions against CNDD members and others
remain in place. As electoral preparations advance, a number of issues will confront U.S. policy.
These include U.S. relations with the Guinean government; the status of U.S. assistance and
travel restrictions on CNDD members; the monitoring of progress toward elections; U.S. policy
toward a potential International Criminal Court (ICC) investigation of alleged CNDD human
rights abuses; and potential U.S. support for security sector reform in Guinea.
Abstract: On Wednesday, April 28, 2010 the Subcommittee on National Security and Foreign Affairs held a hearing entitled, “The Rise of the Drones II: Examining the Legality of Unmanned Targeting.” The hearing examined the legal issues surrounding the use of unmanned weapons systems for targeting individuals as part of our current overseas contingency operations. The witnesses discussed the requirements and application of both international and domestic laws under various combat circumstances, the consequences of using civilians or military personnel to operate unmanned weapons, the considerations involved with targeting American citizens, and future legal and policy considerations. Written testimony by the witnesses is available. Witnesses were: Professor Kenneth Anderson, Professor, Washington College of Law, American University;
Professor Mary Ellen O'Connell, Professor, University of Notre Dame Law School;
Professor David Glazier, Professor, Loyola Law School Los Angeles; and
Professor William Banks, Professor, Syracuse University College of Law.
Abstract: “Operation Iraqi Freedom” has led to massive humanitarian devastation in the Middle East region. It is estimated that the conflict has led to the internal and external displacement of at least 4 million Iraqis. Ultimately, this Note finds that current international law is inadequate to meet the humanitarian crises that stem from military conflicts entered into in violation of international law, as the Iraqi refugee crisis demonstrates. Accordingly, this Note recommends an additional Protocol to the 1967 Refugee Convention and Protocol. Finally, this Note makes specific recommendations to the current U.S. Presidential Administration as it develops the U.S. response to the disaster. Part II outlines the respective responses to the ongoing Iraqi refugee crisis from the international community, host countries, and the U.S. government during both the Bush and Obama Administrations. Part III takes up the question of what legal obligations host countries, the United States, and the international community possess in regard to the Iraqi refugee crisis under current international law, and proposes a new Protocol to the 1967 Refugee Convention and Protocol. The proposed Protocol would require states that create massive humanitarian disasters through their unlawful entry into war to provide for the financial costs of addressing the toll. Part IV concludes the Note with legal and policy recommendations to the international community and the Obama Administration.
Abstract: The International Criminal Court (ICC), established in 2002, has to-date initiated investigations
exclusively in Sub-Saharan Africa. The ICC Prosecutor has opened cases against 16 individuals
for alleged crimes in northern Uganda, the Democratic Republic of Congo, the Central African
Republic, and the Darfur region of Sudan. In addition, the Prosecutor is investigating postelection
violence in Kenya and analyzing situations—a preliminary step toward initiating a full
investigation—in Guinea and several other African countries, as well as several countries outside
of Africa. Congressional interest in the work of the ICC in Africa has arisen from concern over
gross human rights violations on the African continent and beyond. On March 4, 2009, ICC judges issued an arrest warrant for Sudanese President Omar Hassan al-
Bashir for war crimes and crimes against humanity. The case against Bashir represents the first
attempt by the ICC to pursue a sitting head of state. The prosecution has drawn praise from
human rights advocates as a step toward ending impunity for serious human rights abuses in
Africa. However, it has also raised concerns that ICC actions could endanger peace processes in
Darfur and southern Sudan. Additional fears that the ICC could imperil international
humanitarian operations were heightened when the Sudanese government responded to the
warrant by expelling international relief agencies. This report provides background on ICC investigations in Africa and gives an overview of cases
currently before the Court. The report also examines issues raised in Africa by the ICC’s actions,
including the ICC’s possible role in deterring future abuses, and the potential impact of
international prosecutions on African peace processes.
Abstract: This essay discusses several issues involving the theory of post-conflict reconstruction, and suggests that the concepts of reconstruction and of economic development be carefully kept apart. It explores the question of what moral and legal obligations to reconstruction the occupiers incur. Using Iraq as a case study it presents two scenarios for reconstruction: a 'triage' approach which relies heavily on prioritization and recongnition of inherent limitations, and a 'scattergun' approach, exemplified by current efforts in Iraq. The latter, the eassy concludes, is ineffective as a tool for reconstruction. Reconstruction has its own intrinsic merits, but using it to win the 'hearts and minds' of a population in order to gain suport for the occupiers is unlikely to succeed.
Abstract: The Barack Obama administration places drone attacks at the heart of its military strategy in Afghanistan and Pakistan. But its enemy too is capable of making deadly use of evolving technology. A number of news reports in March-April 2010 claims that the accelerated use of armed-drones is having a hugely disruptive effect on the al-Qaida movement. Most of these reports, which appear to emanate from CIA sources, identify western Pakistan as a key area where drones are damaging the Pakistani Taliban and other insurgent elements. It is understandable that United States agencies (and some analysts) seek to put a positive emphasis on developments in the “AfPak” war, especially so soon after the announcement of Barack Obama’s military “surge” strategy in Afghanistan. But the narrative of drone “success” needs to be examined with care, and put in the context of wider events that suggest the existence of other serious dynamics in the evolving war.
Abstract: The world has become normal again. The years immediately following the end of the Cold War offered a tantalizing glimpse at a new kind of international order, with nations growing together or disappearing altogether, ideological conflicts melting away, cultures intermingling through increasingly free commerce and communications. But that was a mirage, the hopeful anticipation of a liberal, democratic world that wanted to believe the end of the Cold War did not end just one strategic and ideological conflict but all strategic and ideological conflict. People and their leaders longed for “a world transformed.” Today the nations of the West still cling to that vision. Evidence to the contrary — the turn toward autocracy in Russia or the growing military ambitions of China — is either dismissed as a temporary aberration or denied entirely. The world has not been transformed, however. Nations remain as strong as ever, and so too the nationalist ambitions, the passions, and the competition among nations that have shaped history. The world is still “unipolar,” with the United States remaining the only superpower. But international competition among great powers has returned, with the United States, Russia, China, Europe, Japan, India, Iran, and others vying for regional predominance. Struggles for honor and status and influence in the world have once again become key features of the international scene. Ideologically, it is a time not of convergence but of divergence. The competition between liberalism and absolutism has reemerged, with the nations of the world increasingly lining up, as in the past, along ideological lines. Finally, there is the fault line between modernity and tradition, the violent struggle of Islamic fundamentalists against the modern powers and the secular cultures that, in their view, have penetrated and polluted their Islamic world.
Abstract: The Obama administration may finally get some good news. Iraq’s recent elections for parliament might actually result in a non-sectarian, pro-American government. This outcome would enable the Obama administration to fulfill its goal of removing all but 50,000 support troops by this August and drawn U.S. forces down to zero by the end of 2011. The resilient and courageous Iraqi people voted in higher percentages than the American electorate, with 62 percent of eligible voters going to the polls. This voter participation is a positive step toward a free, sovereign, and democratic Iraq. The future, however, will depend on the actions and attitudes of Iraqis, Americans and Iraq’s neighbors. The preliminary results for the 325 seats in parliament indicate that Ayad Allawi’s Iraqia Party has garnered 91 seats, while incumbent Prime Minister Nouri al-Maliki’s State of Law Party won 89 seats. The Kurds have perhaps lost the most from this election. The main Kurdish Alliance won 43 seats and thus have fewer seats than before. The new secular group, Goran (meaning "change"), has split the Kurdish alliance. Goran could play an important role in joining any secular coalition.
Abstract: The use of drone strikes in Pakistan and around the world has been attacked as counterproductive and ineffective but the question of whether such strikes are legal is less frequently raised. When and where does a drone strike contravene international law, and what are the implications of their illegal use for the hoped-for spread of the rule of law to the present battlegrounds of 'the war on terror'? In November 2002, a CIA drone armed with Hellfire missiles struck the car in which the mastermind of the attack against the USS Cole, affiliated to Al-Qaeda, was crossing the desert of Yemen. Today the US is recognized to have two different targeted killing programs, one linked to operations in Afghanistan in support of US troops on the battlefield; the other, covert and managed by the Agency, in support of national foreign policy objectives abroad, focused on al-Qaeda elements in the tribal areas of Pakistan. Both are centred on drones.
Abstract: Within days of his inauguration as president, Barack Obama ordered the CIA to continue President Bush’s policy of attacks by unmanned aerial vehicles (UAVs) or drones in Western Pakistan. By October of 2009, the CIA had launched around 80 drone attacks. These attacks cannot be justified under international law for a number of reasons. First drones launch missiles or drop bombs, the kind of weapons that may only be used lawfully in an armed conflict. Until the spring of 2009, there was no armed conflict on the territory of Pakistan because there was no intense armed fighting between organized armed groups. International law does not recognize the right to kill without warning outside an actual armed conflict. Killing without warning is only tolerated during the hostilities of an armed conflict, and, then, only lawful combatants may lawfully carry out such killing. Members of the CIA are not lawful combatants and their participation in killing persons - even in an armed conflict - is a crime. Members of the United States armed forces could be lawful combatants in Pakistan if Pakistan expressly requested United States assistance in a civil war to end a challenge to Pakistan’s civilian government. No express request of this nature has been made. Even if it were made, drone attacks are the wrong tactic in the context of Western Pakistan. The CIA’s intention in using drones is to target and kill individual leaders of al-Qaeda or Taliban militant groups. Drones have rarely, if ever, killed just the intended target. By October 2009, the ratio has been about 20 leaders killed for 750-1000 unintended victims. Drones are having a counter-productive impact in Pakistan’s attempt to repress militancy and violence. The use of the drone is, therefore, violating the war-fighting principles of distinction, necessity, proportionality and humanity.
Abstract: The image of the United States as a role model of liberal democracy has suffered tremendously over the last eight years. In the name of the global war on terror, former President Bush suspended the law for those detained as possible terrorists. Even though President Obama’s promise to close Guantánamo is recognized by the international community as a first step towards restoring U.S. credibility, several problems require comprehensive policy solutions:
* How to proceed with detainees that are considered to be dangerous?
* What to do with detainees who are cleared of suspicion, but might face torture in their country of origin?
* How to cope with evidence that is derived from torture?
Thomas C. Hilde outlines several post-Guantánamo detainee policy proposals – and their difficulties – that address these distinctive sets of issues, such as military commission trials, continued preventive detention, a national security court or U.S. criminal court trials. In the long run, however, restoring credibility through a reformed detainee policy is only one component of post-Guantánamo credibility; the second indispensable element is accountability.
Abstract: At least 71 journalists were killed across the globe in 2009, the Committee to Protect Journalists announced Tuesday, the largest annual toll in the 30 years the group has been keeping track.
Twenty-nine of those deaths came in a single, politically motivated massacre of reporters and others in the Philippines last November, the worst known episode for journalists, the committee said.
But there were other worrisome trends. The two nations with the highest number of journalists incarcerated — China had 24 journalists imprisoned at the end of 2009 and Iran had 23 — were particularly harsh in taking aim at bloggers and others using the Internet. The number jailed in Iran has since jumped to 47, the committee said. Of the 71 confirmed deaths, 51 were murders, the committee said. The report noted that 24 additional deaths of journalists remained under investigation to determine if they were related to the journalists’ work. Previously, the highest number of journalists killed in a single year was 67, in 2007, when violence in Iraq was raging.
Abstract: What makes a "war"? Professor Weiner argues that the self-styled "war on terror" launched by the United States against al-Qaeda and other terrorist entities mischaracterizes the nature of the conflict. This mischaracterization is not merely a matter of semantics, but has been used to vest the Executive Branch with substantial legal powers only available in wartime. Although Professor Weiner acknowledges certain important similarities between the "war on terror" and conventional forms of armed conflict, he submits that the Executive Branch has chosen not to accept wartime's legal duties even as it claims wartime rights in the fight against terrorism. Professor Weiner criticizes the Supreme Court's decision in Hamdan v. Rumsfeld that Common Article 3 of the Geneva Conventions applies to the Guantanamo detainees. Although this ruling extended some limited protections to the Guantanamo detainees, it effectively endorses the Executive Branch's assertion of sweeping wartime powers in the fight against terrorism. Finally, Professor Weiner argues that the potentially unbounded character of the conflict against terrorism creates powerful reasons for the Judiciary to apply traditional principles of checks and balances and to limit Executive Branch powers in this new "war on terror."
Abstract: Sovereignty is the bedrock of international law. If security requires
that the United States transgress sovereign borders to attack foreign fighters and
their support networks hiding in third countries, then the U.S. should adopt a
strategy to amend international law accordingly. One should not be too quick,
however, to disregard a robust notion of sovereignty, a concept that has helped
avert conflict among the world’s major powers. The United States needs a
strategy for sovereignty’s future that is based in the emerging security context
and a prioritization of American interests. Instead, the United States and the
rest of the world are meandering toward a less robust sovereignty with weaker
and more ambiguous international law. The U.S. and its global interests would
be better served by strong and clear international rules that increase predictability
and that confer legitimacy to action against dangerous enemies.
Abstract: The International Criminal Court is an institution that sits uneasily at the dangerous intersection of law and politics, both international and domestic. Created by a treaty, the Rome Statute, opened for signature in 1998 and commencing operation after ratification by 60 state signatories in July 2002, the Court has as the subject matter of its jurisdiction the most horrible acts of violence that political conflict can produce: genocide, war crimes, ethnic cleansing, crimes against humanity. The notion that atrocities on such a scale can be brought to heel or ameliorated by the law acting across national borders necessarily entails the Court inserting itself into some of the worst and most vexing conflicts the world sees.
The involvement of the Court may take place for the purpose of rendering judgments after a conflict has ended, as in the case of the Nuremberg tribunals following World War II, or once conflict has substantially abated, as in the icc’s ongoing proceedings in the Central African Republic. Criminal proceedings such as these are controversial enough when minds are still reeling from the horror of what has just happened. The Court’s involvement need not be retrospective, however; the conflict or crisis may be going full tilt when the Court becomes involved, adding yet more layers of complexity and controversy to its actions. For example, the icc has issued a warrant for the arrest of the president of Sudan, Omar al Bashir, charging him with orchestrating the atrocities in Sudan’s Darfur region, at a time when the crisis there is very much unfolding in real time and stubbornly eluding the efforts of would-be peacemakers.
Abstract: U.S. departments and agencies contributing to combat or stability operations overseas are relying
on private firms to perform a wider scope of security services than was previously the case. The
use of private security contractors (PSCs) to protect personnel and property in Iraq and
Afghanistan has been a subject of debate in the press, in Congress, and in the international
community. While PSCs are widely viewed as being vital to U.S. efforts in the region, many
Members are concerned about transparency, accountability, and legal and symbolic issues raised
by the use of armed civilians to perform security tasks formerly performed by military personnel,
as well as the adverse impact PSCs may be having on U.S. counterinsurgency efforts.
Contractors working for the U.S. military, the State Department, or other government agencies
during contingency operation in Iraq and Afghanistan are non-combatants who have no combat
immunity under international law if they engage in hostilities, and whose conduct may be
attributable to the United States. Contractors who commit crimes in Iraq or Afghanistan are
subject to U.S. prosecution under criminal statutes that apply extraterritorially or within the
special maritime and territorial jurisdiction of the United States, or by means of the Military
Extraterritorial Jurisdiction Act (MEJA). Section 552 of the John Warner National Defense
Authorization Act for FY2007 (P.L. 109-364) makes military contractors supporting the Armed
Forces in Iraq subject to court-martial jurisdiction, although the military trial of a civilian
contractor would likely be subject to legal challenge on constitutional grounds. Despite
congressional efforts to expand court-martial jurisdiction and jurisdiction under MEJA, some
contractors may remain outside the jurisdiction of U.S. courts, civil or military, for improper
conduct in Iraq or Afghanistan.
This report discusses the legal framework that applies to PSCs in Iraq and Afghanistan. After
presenting a general description of the types of law applicable, including international
humanitarian law and relevant status of forces agreements, the report addresses some implications
of international law and a multilateral proposal for the adoption of international “best practices”
regarding the use of PSCs. The report follows up with a discussion of jurisdiction over PSC
personnel in U.S. courts, whether federal or military courts, identifying possible means of
prosecuting contractor personnel who are accused of violating the law overseas in the context of
U.S. military operations, including a listing of known cases that have occurred or are pending.
Finally, the report briefly discusses the possible implication of the roles of private security
contractors with respect to inherently governmental functions.
Abstract: After September 11, 2001, U.S. counterterrorism policies
authorized and fostered systematic violations of human rights
standards under national and international law. Those most
responsible were not held accountable. Contrary to fundamental
democratic values, these policies and actions damaged the
standing of the United States in the world and irreparably
injured individuals. Abuses against prisoners were committed
in detention facilities in Afghanistan, Iraq, and Guantánamo
Bay, and in secret prisons run by the Central Intelligence
Agency (CIA). These violations humiliated and degraded
detainees, stripped them of their core bearings in the world,
and, in a number of instances, resulted in death.
On August 24, 2009, U.S. Attorney General Eric Holder
announced that he was appointing Assistant U.S. Attorney
John Durham to conduct a preliminary review into the possibility
that federal laws were violated in the interrogation of specific
detainees outside of the United States. The review should serve
to gather facts and determine whether a full investigation is
warranted. While limited, this is a welcome step in a terrain
that has been marked by notable failures of accountability in
the face of continuing revelations that crimes were committed.
Abstract: Unmanned drone aircraft such as the Predator and Reaper may become the weapon of choice to use
again Al Qaeda and Taliban insurgents in Pakistan and Afghanistan as support for large numbers of
US troops in Afghanistan decreases among the US public and policymakers. A squadron of pilots
stationed at computer banks in Nevada operates the drone aircraft that fly over tribal areas in
Pakistan and Afghanistan. Using 16 pull down menus to identify their targets, pilots signal the
drones to drop Hellfire missiles and JDAM bombs designed to bore through armored vehicles that
minimally destroy a street‐size area. These ‘smart’ bombs still lack precision and on‐the‐ground
information about the presence of civilians. While the military has plans to build smaller drones
that would kill fewer civilians, these are years away in development.
Advocates laud drones for disrupting Al Qaeda and Taliban networks and safe havens by killing and
threatening key leaders without risking the lives of US troops. According to US sources, drone
strikes have killed nine out of 20 senior operatives from Al Qaeda. These measurable body counts
appeal to some policymakers amidst a lack of any other tangible signs of progress in Afghanistan.
The many costs of drone strikes outweigh the short-term benefits of disrupting Al Qaeda and the Taliban.
No matter the outcome of President Obama’s deliberations about US strategy in Afghanistan and
Pakistan, the tactic of using unmanned drone strikes should be taken off the table.
Abstract: With eight months down and four to go, Washington has suddenly remembered to ask: How is the closing of Guantánamo going? The answer, according to conventional wisdom, is: not great; the one-year deadline was a mistake, and there never was consensus on closure to begin with. Some are on a witch hunt to lay blame. But reports of impending failure are premature, and the preoccupation with not making the deadline is at least somewhat misplaced. As of early October, in fact, the Barack Obama administration's effort is actually in considerably better shape than it was in May, when it suffered a near-death experience in Congress. Mistakes and missteps have been made, but the rapidly developing conventional wisdom on what these were is simply wrong. Nor are the critics proving helpful in presenting ideas to make the next four months go more smoothly than the last eight.
Abstract: Following the terrorist attacks of 9/11, Congress passed the Authorization to Use Military Force
(AUMF), which granted the President the authority “to use all necessary and appropriate force
against those ... [who] planned, authorized, committed, or aided the terrorist attacks” against the
United States. As part of the subsequent “war on terror,” many persons captured during military
operations in Afghanistan and elsewhere were transferred to the U.S. Naval Station at
Guantanamo Bay, Cuba for detention and possible prosecution before military tribunals. Although
nearly 800 persons have been transferred to Guantanamo since early 2002, the substantial
majority of Guantanamo detainees have ultimately been transferred to a third country for
continued detention or release. The 229 detainees who remain fall into three categories: (1)
persons placed in non-penal, preventive detention to stop them from rejoining hostilities; (2)
persons who have faced or are expected to face criminal charges; and (3) persons who have been
cleared for transfer or release, whom the United States continues to detain pending transfer.
Although the Supreme Court ruled in Boumediene v. Bush that Guantanamo detainees may seek
habeas corpus review of the legality of their detention, several legal issues remain unsettled,
including the scope of habeas review available to Guantanamo detainees, the remedy available
for those persons found to be unlawfully held by the United States, and the extent to which other
constitutional provisions extend to noncitizens held at Guantanamo.
Abstract: American counterterrorism is a hybrid employing distinct palettes of legal tools. One is criminal law enforcement; another is armed conflict. Americans have been arguing about these two palettes—their relative uses, merits, and limitations—nonstop since September 11. Each occupies important ground in the legal and policy regulation of uses of force and violence in counterterrorism. As a matter of long-term counterterrorism strategy, each will continue to play an important role. Moreover, despite many now-familiar arguments, sometimes ferocious, over such issues as Guantánamo, habeas corpus, civilian versus military criminal trials, detention, rendition, and interrogation, each of these fields—law enforcement and armed conflict—have well established legal and policy protocols.
Criminal law is not about killing people as such; it is, rather, about arresting, literally stopping their activities and punishing them for ones that violate the law. Resisting arrest can lead to deadly violence, but the paradigm of law enforcement is one that fundamentally takes place within an ordered domestic society in which the governmental use of deadly force is incidental to the attempt to arrest alleged criminals. That is, its virtue is that it takes place in a settled, ordered society with a legitimate government. That also represents its limitation in dealing with terrorists, who are at once enemies of that society and criminals in their methods and often shelter beyond the reach of its institutions.
Armed conflict accepts a willingness to kill people in the pursuit of political ends, and those killings are not limited merely to killings incident to attempted arrest. Its virtue is that it is addressed to enemies who come from outside a settled society, but its limitation is that its uses of force are not underwritten with the legitimacy of a state in an ordered society. Policing and war-making are two radically different deployments of violence by the state, the former the exercise of a legitimate near-monopoly on violence and the latter the exercise of the level of violence dictated by military necessity so as to create a monopoly on violence. Yet core standards are reasonably clear for both criminal law and war law. To the extent that we debate these core standards, we normally do so on account of their uncertain application to an activity—terrorism by transnational non-state actors—that lies at the margins, rather than the core, of each.
Abstract: The Obama administration has announced that CIA officers who had followed the U.S. Justice Department's legal advice would not be prosecuted for the use of even the harshest interrogation techniques in the war on terror. Spanish prosecutors meanwhile moved toward dropping a formal investigation into possible prosecution of U.S. officials for torture. But the efforts by Spanish officials highlight the reach of international law and the concept of universal jurisdiction.
