Law Commons^™

The Reasonable Intelligence Agency, Asaf Lubin

Articles by Maurer Faculty

Article 57(2) of the First Additional Protocol to the Geneva Conventions requires parties to an armed conflict to “do everything feasible to verify” their objects of attack and take “all precautions” to minimize civilian casualties and unintentional damage to civilian property. This obligation has been interpreted in international law to require state parties to set up an “effective intelligence gathering system” that would properly identify targets using all technical means at the disposal of the combating forces.

But existing law has failed to define what “effective intelligence” looks like. Quite the opposite. Modern history is filled with examples of intelligence …

The Liberty To Spy, Asaf Lubin

Articles by Maurer Faculty

Many, if not most, international legal scholars share the ominous contention that espionage, as a legal field, is devoid of meaning. For them, any attempt to extrapolate the lex lata corpus of the International Law of Intelligence (ILI), let alone its lex scripta, would inevitably prove to be a failed attempt, as there is simply nothing to extrapolate. The notion that international law is moot as to the question of if, when, and how intelligence is to be collected, analyzed, and promulgated, has been repeated so many times that it has become the prevailing orthodoxy.

This paper offers a new …

The Persecution Of Stones: War Crimes, Law's Autonomy And The Co-Optation Of Cultural Heritage, Timothy W. Waters

Articles by Maurer Faculty

In 1567, a bridge was built over a river in Bosnia-a bridge widely seen as a work of great beauty. In 1993, it was destroyed in a war. What did its destruction mean? Was it a crime-and which one? An assault on culture-and whose? Between 2004 and 2017, a trial held in The Hague sought to answer these questions. The way it did-the assumptions and categories the prosecutors and judges deployed, the choices they made-tells us something important about how law operates and how it appropriates other bodies of knowledge, whether in a now-obscure Balkan conflict or on the battlefields …

Constructing Citizenship Through War In The Human Rights Era, Timothy W. Waters

Articles by Maurer Faculty

War's historical relationship to the creation of territorial nation-states is well known, but what empirical and normative role does war play in creating the citizen in a modern democracy? Although contemporary theories of citizenship and human rights do not readily acknowledge a legitimate, generative function for war - as evidenced by restrictions on aggression, annexation of occupied territory, expulsions, denationalization, or derogation of fundamental rights - an empirical assessment of state practice, including the interpretation of international legal obligations, suggests that war plays a powerfully transformative role in the construction of citizenship, and that international law and norms implicitly accept …

Espionage As A Sovereign Right Under International Law And Its Limits, Asaf Lubin

Articles by Maurer Faculty

The literature surrounding the international legality of peacetime espionage has so far centered around one single question: whether there exist within treaty or customary international law prohibitive rules against the collection of foreign intelligence in times of peace. Lacking such rules, argue the permissivists, espionage functions within a lotus vacuum, one in which States may spy on each other and on each other's nationals with no restrictions, justifying their behavior through the argumentum ad hominem of "tu quoque." . . .

When Responsibilities Collide: Humanitarian Intervention, Shared War Powers, And The Rule Of Law, Dawn E. Johnsen

Articles by Maurer Faculty

The use of military force to respond to a foreign humanitarian crisis raises profound legal questions, especially when force is not authorized by the U.S. Congress or the U.N. Security Council. President Clinton's use of air strikes in Kosovo, President Obama's use of air strikes in Libya, and his threat of force following Syrian President Assad's use of chemical weapons against the Syrian people all responded to powerful humanitarian needs-but serious questions about their legality remain. Drawing upon these case studies, Professor Harold Koh proposes a framework that would find some such interventions lawful, even without congressional or Security Council …

Introductory Note To United Nations Security Council Resolution 2298, David P. Fidler

Articles by Maurer Faculty

On July 22, 2016, the UN Security Council unanimously adopted Resolution 2298 supporting efforts by the Organisation for the Prohibition of Chemical Weapons (OPCW) to remove chemical weapons from Libya and facilitate their destruction in another country. This resolution was critical to the international effort to prevent chemical weapons in Libya from being at risk of acquisition by members of the so-called Islamic State operating in Libya.

Clearing The Path: The Perils Of Positing Civil Society In Conflict And Transition, Timothy W. Waters

Articles by Maurer Faculty

Can there be a general theoretical perspective on civil society's involvement in transitional justice? This article considers this question in its application to the Israeli-Palestinian conflict. Within the study of transitional justice and conflict resolution, civil society - a notoriously plastic concept - can be understood narrowly as rights-oriented groups working “for” peace, but the term is equally available to describe a broader array of communities that can either promote or prevent peace and justice.

It is, in fact, quite difficult to sustain a theoretical distinction between them, because transitional justice does not escape the dictates of politics - of …

Twilight In Afghanistan: An Introduction, Feisal Amin Istrabadi, Sumit Ganguly

Articles by Maurer Faculty

No abstract provided.

Cyber War Crimes: Islamic State Atrocity Videos And The Laws Of War, David P. Fidler

Articles by Maurer Faculty

The Islamic State has combined its extreme violence with digital and cyber technologies to produce and distribute globally videos recording atrocities it commits. This article argues that those in the Islamic State who make and distribute these atrocity videos are committing war crimes under international law. After introducing the unprecedented phenomenon the atrocity videos represent (I.), the article first examines the relationship between international law and propaganda in war and peace (II.) The article then argues the atrocity videos violate prohibitions in international humanitarian law and constitute war crimes (III.). The article concludes by presenting criticisms of this argument and …

Taking The Measure Of Nations: Testing The Global Norm Of Territorial Integrity, Timothy W. Waters

Articles by Maurer Faculty

No abstract provided.

Countering Islamic State Exploitation Of The Internet, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Technology And The Law On The Use Of Force: New Security Challenges In The Twenty-First Century, By Jackson Maogoto, Asaf Lubin

Articles by Maurer Faculty

Review of:

Technology and the Law on the Use of Force: New Security Challenges in the Twenty-First Century. By Jackson Maogoto. Oxford, UK: Routledge, 2015. Pp xviii, 111. Price: $117.71 (Hardcover).

The Limits Of Legality: Assessing Recent International Interventions In Civil Conflicts In The Middle-East, Feisal Amin Istrabadi

Articles by Maurer Faculty

No abstract provided.

Health Policy And The Syrian Chemical Weapons Crisis, David P. Fidler

Articles by Maurer Faculty

For health policy, armed conflicts constitute one of the most severe emergency contexts in which health, well-being, and determinants of health are threatened. The Syrian civil war has proved no different, as health experts re­peatedly lament the humanitarian debacle the Syrian conflict has become. The main distinguishing feature of the Syrian civil war has been the large-scale use of chemical weapons in August 2013. This essay analyzes the chemical weapons crisis and its diplomatic resolution from a health policy perspective, with particular attention on whether the handling of this crisis created positive health policy “spillover” opportunities for more effectively addressing …

Plucky Little Russia: Misreading The Georgian War Through The Distorting Lens Of Aggression, Timothy W. Waters

Articles by Maurer Faculty

One might expect massed armor crossing an international frontier to constitute the paradigmatic example of aggression — a case perfectly fit to analyze with the rules of jus ad bellum — and in the first flush and shock of the Georgian War in 2008, this is exactly how Western leaders described Russia’s actions. Yet that August, a constellation of circumstances combined to produce an anomalous outcome: an international war without any aggressor or any wrongful violation of territorial integrity. In theory — in doctrine — this is not supposed to happen.

The key to this puzzle is the special regime …

Book Review. Pollack, S. D., War, Revenue, And State Building: Financing The Development Of The American State, Ajay K. Mehrotra

Articles by Maurer Faculty

No abstract provided.

Book Review. The Legacy Of The International Criminal Tribunal For The Former Yugoslavia Edited By B. Swart, A. Zahar And G. Sluiter, Timothy W. Waters

Articles by Maurer Faculty

No abstract provided.

"The Essence Of A Free Society": The Executive Powers Legacy Of Justice Stevens And The Future Of Foreign Affairs Deference, Dawn E. Johnsen

Articles by Maurer Faculty

After 9/11, Justice John Paul Stevens insisted the United States maintain its foundational commitment to the rule of law—the very “essence of a free society.” Justice Stevens led the Court’s scrutiny and rejection of early Bush Administration policies regarding the detention and prosecution of suspected terrorists. Since it lost Justice Stevens’s passionate and principled voice in 2008, the Court has not addressed the scope of the President’s military detention authority. This Article considers Justice Stevens’s role in the Court’s altered stance, and also a complementary explanation: the Obama Administration’s improved interpretation and exercise of executive authority. Informed and inspired by …

Outside The Wire: American Exceptionalism And Counterinsurgency, David Fidler

Articles by Maurer Faculty

No abstract provided.

Cracks In The Firmament Of Burma's Military Government: From Unity Through Coercion To Buying Support, David C. Williams

Articles by Maurer Faculty

Despite holding recent elections, Burma’s military government does not intend to relinquish power; its new constitution guarantees the army the right to do whatever it wants. Democracy will therefore not come to Burma through legal, peaceful, incremental steps. Instead, democracy will come to Burma outside the legal process, because the basis for the regime’s power has changed, becoming markedly weaker. When it first seized power in 1961, the military was united and therefore able to rule through coercion alone. In the past several decades, by contrast, the generals have increasingly sought to purchase support by giving income and resource streams …

Introductory Note To The Agreement Between The Republic Of Poland And The United States Of America Concerning The Deployment Of Ground-Based Ballistic Missile Defense Interceptors In The Territory Of The Republic Of Poland, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Preventive Use Of Force: The Case Of Iraq, Feisal Amin Istrabadi, Henry Bienen, Jan Wouters, David Hannay

Articles by Maurer Faculty

No abstract provided.

The Report Of The U.N. High-Level Panel And The Use Of Force In Iraq In 2003, Feisal Amin Istrabadi

Articles by Maurer Faculty

No abstract provided.

An Essay On The Spirit Of Liberty In The Fog Of War, Patrick L. Baude

Articles by Maurer Faculty

This article previews the Supreme Court's decision in the Guantánamo prisoners' cases, arguing they should be dismissed for failure of jurisdiction. The worst possible outcome for civil liberties in wartime would be a decision to adjudicate the rights of the prisoners under an anemic view of individual rights and judicial jurisdiction. It is evident that the Court will not apply a robust conception of due process to these cases, in light of the inevitable pressures of national security in wartime. But faint-hearted judicial review, the likely result, will foster the political illusion that business as normal for our constitutional system …

Book Review. American War In The 1990s, David G. Delaney

Articles by Maurer Faculty

No abstract provided.

The Fight Against Global Terrorism: Self-Defense Or Collective Security As International Police Action? Some Comments On The International Legal Implications Of The "War Against Terrorism", Jost Delbruck

Articles by Maurer Faculty

No abstract provided.

Agony Of The Innocents, Feisal Amin Istrabadi

Articles by Maurer Faculty

No abstract provided.

The War Powers In French Constitutional Law, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

War, Law & Liberal Thought: The Use Of Force In The Reagan Years, David P. Fidler

Articles by Maurer Faculty

No abstract provided.