Law Commons^™

Arguing About The Jus Ad Bellum, Monica Hakimi

Book Chapters

In January 2020, the United States conducted a targeted airstrike against Iranian General Qasem Soleimani, who at the time was on official business in Iraq. Soleimani had commanded an Iranian military unit that supported armed groups throughout the region, including in Iraq. He likely was involved, directly or indirectly, in countless incidents of low-level violence against the United States and its allies. Nevertheless, the US attack on him was especially brazen and seemed to up the ante. It raised the possibility, or at least created some chatter, that the two countries were heading toward all-out war.

Most analysts who assessed …

Presidential Use Of Force In East Asia: American Constitutional Law And The U.S.-Japan Alliance, Matthew C. Waxman

Faculty Scholarship

The U.S. Constitution’s allocation of military authority has adapted over time to major shifts in American power and grand strategy. This paper explains, with a focus on U.S. military actions in East Asia and possible scenarios of special joint concern to the United States and Japan, that the president in practice wields tremendous power and discretion in using military force. Although formal, legal checks on the president’s use of force rarely come into play, Congress nevertheless retains some political power to influence presidential decision-making. The president’s powers are also constrained by interagency processes within the executive branch, and alliance relations …

Strengthening The U.S.-Japan Alliance: Pathways For Bridging Law And Policy, Columbia Law School, 2020, Nobuhisa Ishizuka, Masahiro Kurosaki, Matthew C. Waxman

Faculty Scholarship

During the three years leading up to this year ’s 60th anniversary of the signing of the 1960 U.S.-Japan Security Treaty, a series of workshops were held under the joint sponsorship of Columbia Law School’s Center for Japanese Legal Studies and the National Defense Academy of Japan’s Center for Global Security. Bringing together experts in international law and political science primarily from the United States and Japan, the workshops examined how differing approaches to use of force and understandings of individual and collective self-defense in the two countries might adversely affect their alliance.

The workshop participants explored the underlying causes …

Use Of Force In Humanitarian Crises: Addressing The Limitations Of U.N. Security Council Authorization, Paul Williams, Sophie Pearlman

Articles in Law Reviews & Other Academic Journals

The original 2001 United Nations (UN) codification of the Responsibility to Protect (R2P) granted the UN Security Council exclusive control over authorizing use of force in sovereign states. Unfortunately, as demonstrated over the past 20 years, the need for humanitarian intervention has not changed and the use of force in the name of humanitarian intervention has not always occurred even when the need for such intervention was dire. When the UN Security Council is deadlocked, and a humanitarian crisis is at hand, it is necessary to have a means of using low-intensity military force to prevent mass atrocity crimes. In …

From Protecting Lives To Protecting States: Use Of Force Across The Threat Continuum, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

The increasing prominence in recent years of non-international armed conflicts that extend across state borders has strained the traditional legal categories that we use to regulate state use of force. Simultaneous with this phenomenon has been growing acceptance that human rights law and international humanitarian law should co-exist, with the former informing interpretations of the latter to varying degrees. Scholars continue to debate vigorously the implications of these developments and how these bodies of law should interact. As Kenneth Watkin’s book Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict observes, however, commanders have no choice …

The Theory And Practice At The Intersection Between Human Rights And Humanitarian Law, Monica Hakimi

Reviews

The United States is more than fifteen years into a fight against terrorism that shows no sign of abating and, with the change in administration, appears to be intensifying. Other Western democracies that have historically been uneasy about U.S. counterterrorism policies have, in recent years, shifted toward those policies. And armed nonstate groups continue to commit large-scale acts of violence in multiple distinct theaters. The legal issues that these situations present are not entirely new, but neither are they going away. Recent publications, like the three works under review, thus provide useful opportunities to reflect on and refine our thinking …

The Popular But Unlawful Armed Reprisal, Mary Ellen O'Connell

Journal Articles

The United States and Iran carried out armed reprisals in Syria during 2017 in the wake of chemical and terror attacks. Despite support for their actions even by countries such as Germany and France, retaliatory uses of force are clearly prohibited under international law. International law generally prohibits all use of armed force with narrow exceptions for self-defense, United Nations Security Council authorization, and consent of a government to participate in a civil war. Military force after an incident are reprisals, which have been expressly forbidden by the UN. Prior to the Trump administration, the U.S. consistently attempted to justify …

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • Iran and United States Continue to Implement Nuclear Deal, Although Disputes Persist • United States Continues to Challenge Chinese Claims in South China Sea; Law of the Sea Tribunal Issues Award Against China in Philippines-China Arbitration • U.S. Navy Report Concludes That Iran’s 2015 Capture of U.S. Sailors Violated International Law • United States Justifies Its Use of Force in Libya Under International and National Law • U.S. Drone Strike Kills Taliban Leader in Pakistan • U.S. Government Releases Casualty Report, Executive Order, and Presidential Policy Guidance Related to Its Counterterrorism Strike Practices • The Department …

Presidential War Powers As An Interactive Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

All Faculty Scholarship

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …

The Law On Lethal Force Begins With The Right To Life, Mary Ellen O'Connell

Journal Articles

In August 2015, the UK government intentionally killed a criminal suspect and the bystanders with him using a drone-launched Hellfire missile in Syria. In doing so, the UK violated the right to life of all three men because the UK had no lawful basis for deploying military force in Syria. Even if it did, international humanitarian law, governing the conduct of armed conflict, prohibits assassination – the intentional killing of an individual for reasons other than advancing a legitimate military objective. In any actual cases of ambiguity, the legal presumption in international law is with peace and protection of the …

The Applicability Of The Humanitarian Intervention 'Exception' To The Middle Eastern Refugee Crisis: Why The International Community Should Intervene Against Isis, Milena Sterio

Law Faculty Articles and Essays

The refugee crises in Iraq and Syria, which has been evolving over the past decade as a result of both ongoing conflict in these countries and the recent surge of Islamic State-led violence, has morphed into a true humanitarian catastrophe. Tens of thousands of refugees have been subjected to violence and have been dispersed and forced to live under dire conditions; such massive population flows have destabilized the entire region and have threatened the stability of neighboring countries. The United States and several other countries have been engaged in a military air strike campaign against the Islamic State, but the …

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

• Another Mexican National Executed in Texas in Defiance of Avena Decision • Manhattan Arrest of Indian Consular Official Sparks Public Dispute Between the United States and India • United States Questions Claims Based on China’s “Nine-Dash Line” in the South China Sea • United States Takes Steps to Combat Illegal Trade in Wildlife • U.S. Compromises Facilitate Agreement on World Trade Organization’s Bali Package; Question Remains Whether Bali Package Requires Congressional Approval • Destruction of Syrian Chemical Arms Delayed • Iran Nuclear Agreement Is Implemented Notwithstanding Expressions of Distrust by Iran and the U.S. Congress

Humanitarian Intervention Post-Syria: Legitimate And Legal?, Milena Sterio

Law Faculty Articles and Essays

This article looks at the state of affairs under international law by focusing on the existing ban on the use of force and the established exceptions thereto as of December 2014. Topics discussed include the concept of humanitarian intervention, the civil crises in Syria, and international law for the legality of military intervention in Syria. It also examines Harold Koh's proposed normative framework for humanitarian intervention.

Deciding To Intervene, Anna Spain

Publications

Decisions about intervention into today's armed conflicts are difficult, dangerous, and politically complicated. There are no safe choices. Amid the climate of urgency and uncertainty in which intervention decision-making occurs, international law serves as a guide by providing rules about the legality of intervention. These rules assert that, except for in cases of self-defense, choices about when and how to intervene are to be made by the United Nations Security Council. What the rules do not provide, however, is effective guidance for the political choices the Council makes, such as how to prioritize among competing norms. When, for example, should …

International Law And The Future Of Peace, Diane Marie Amann

Scholarly Works

These remarks, delivered at the April 4, 2013, luncheon of the American Society of International Law Women in International Law Interest Group, reflects on contributions of Jane Addams and other members of the early 20th C. peace movement as a means to explore law and practice related to the contemporary use of force and armed conflict.

Self-Defense Against Terrorists: The Meaning Of Armed Attack, Steven Ratner

Book Chapters

The last decade has witnessed increased recourse by states to military force to respond to terrorist attacks on their soil that have originated from abroad. A number of states -- including the United States -- have justified these military actions as lawful self-defense in response to an armed attack, as permitted under Article 51 of the United Nations Charter. These claims raise multiple interpretive questions about the meaning of "armed attack" under Article 51 and of the various options that are allowed in response to one. This essay explores the contemporary understanding of an "armed attack" in terms of an …

Rethinking Legality/Legitimacy After The Iraq War, Christine Chinkin

Book Chapters

My topic is legality and legitimacy after the Iraq war. I will start by problematizing the question. First, it is too limited. Why should the question be defined in terms of "after the Iraq war;' not after some other event such as the war in the Democratic Republic of the Congo where some four million people have died and where the health consequences of HIV/ AIDS will continue for generations? Events, even catastrophic events, from which powerful actors have remained aloof, have little visibility as key incidents in the evolution of international law. They are not deemed the "moments of …

What Is Aggression?: Comparing The Jus Ad Bellum And The Icc Statute, Mary Ellen O'Connell, Mirakmal Niyazmatov

Journal Articles

Under the international law on resort to force, the jus ad bellum, any serious violation of the United Nations Charter prohibition on the use of force amounts to aggression. Despite a close connection for over a century between the prohibition on aggression by states and the crime of aggression for which individuals may be held accountable, delegates to the 2010 International Criminal Court Review Conference in Kampala, Uganda felt compelled to bifurcate the two prohibitions and reach a compromise. Today, the ICC Statute contains a detailed provision on the crime of aggression, but with a byzantine procedure for entry into …

Reasonable Pluralism And International Law, John Linarelli

Scholarly Works

No abstract provided.

Advantaging Aggressors: Justice & Deterrence In International Law, Paul H. Robinson, Adil Ahmad Haque

All Faculty Scholarship

Current international law imposes limitations on the use of force to defend against unlawful aggression that improperly advantage unlawful aggressors and disadvantage their victims. The Article gives examples of such rules, governing a variety of situations, showing how clearly unjust they can be. No domestic criminal law system would tolerate their use.

There are good practical reasons why international law should care that its rules are perceived as unjust. Given the lack of an effective international law enforcement mechanism, compliance depends to a large degree upon the moral authority with which international law speaks. Compliance is less likely when its …

Adoption Of The Responsibility To Protect, William W. Burke-White

All Faculty Scholarship

This book chapter traces the legal and political origins of the Responsibility to Protect doctrine from its early origins in the International Commission on Intervention and State Sovereignty through the 2005 World Summit Outcome Document and up to January 2011. The chapter examines the legal meaning of the Responsibility to Protect, the obligations the Responsibility imposes on states and international institutions, and its implications in for the international legal and political systems. The chapter argues that while the Responsibility to Protect has developed with extraordinary speed, it is still a norm in development rather than a binding legal rule. Its …

Can Might Make Right? The Use Of Force To Impose Democracy And The Arthurian Dilemma In The Modern Era, Scott Thompson

Publications

This article explains that under international law nations are not permitted to use force to impose democracy on other nations and that such an approach is also impracticable and undesirable from a policy perspective.

Preserving The Peace: The Continuing Ban On War Between States, Mary Ellen O'Connell

Journal Articles

The history of international law is, in large part, about the development of restraints on states' right to resort to force in dealing with external conflicts. Today, states may use force only in self-defense to an armed attack or with Security Council authorization. Even in these cases, states may use force only as a last resort, and then only if doing so will not disproportionately harm civilians, their property, or the natural environment. These rules restricting force are found in treaties (especially the United Nations Charter), customary international law, and the general principles of international law. In other words, the …

Rules Of Evidence For The Use Of Force In International Law's New Era, Mary Ellen O'Connell

Journal Articles

International law is ready for a period of renewal in this post-post-modern era. I predict this renewal will come from reviving classical doctrines, such as the positive-law doctrine of sources, and from revisiting formalism. Such renewal will not be possible for the international law of evidence because there is no classical doctrine. Perhaps, as Charles Brower suggests, this is because of the differing civil and common law attitudes toward the rules of evidence, especially with respect to the burden of proof. It seems to me, however, that we need a law of evidence in international law, especially for the international …

Authorizations For The Use Of Force, International Law, And The "Charming Betsy" Canon, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

Although international law has figured prominently in many disputes around actions of the U.S. military, the precise relationship between international law and the President's war powers has gone largely unexplored. This Article seeks to clarify one important aspect of that relationship: the role of international law in determining the scope of Congress's general authorizations for the use of force. In the seminal case of Hamdi v. Rumsfeld, the plurality opinion used international law to interpret the authorization by Congress for the use of force, but did so without adequate attention to the content or interpretive function of international law. This …

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.

Introduction And Postscript: Partial Progress On Un Reform, Douglass Cassel

Journal Articles

The conference on Reforming the United Nations: The use of force to safeguard international security and human rights, co-sponsored by Northwestern University School of Law and the Katholieke Universiteit Leuven Faculty of Law as their Fourth Annual Transatlantic Dialogue, was held in January 2005.

Its timing was propitious. It was held one month after publication of the report of the prestigious and geographically diverse High-Level Panel on Threats, Challenges, and Change, appointed by UN Secretary-General Kofi Annan. Among many other proposals to reform the UN, the High-Level Panel recommended expansion of the Security Council, new guidelines for use of force …

Agora: Future Implications Of The Iraq Conflict: Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

The military action against Iraq in spring 2003 is one of the few events of the UN Charter period holding the potential for fundamental transformation, or possibly even destruction, of the system of law governing the use of force that had evolved during the twentieth century. As with the great debates surrounding U.S. involvement in the two world wars, the establishment of the United Nations, and the challenges to UN Charter norms during the Cold War, this Journal seeks to provide a forum for reasoned and respectful treatment of legal issues that have aroused fierce passions.

Book Review: Limits Of Law, Prerogatives Of Power: Interventionism After Kosovo, By Michael J. Glennon, Charles Tiefer

All Faculty Scholarship

The author reviews Michael Glennon's Limits of Law, Prerogatives of Power: Interventionism After Kosovo, discussing Glennon's approach to NATO's 1999 bombing to stop the Milosevic regime's ethnic cleansing of Kosovo in the face of the UN Charter's absolute ban on states using force except in self-defense. Finding Glennon's study at once provocative and readable, the author emphasizes the strength of Glennon's core point - the inability for the Kosovo campaign to be reconciled with the UN charter - but points to the dangers of using one instance (Kosovo) to prove bad law.