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Program on Humanitarian Policy and Conflict Research (HPCR) Harvard University Extending the Front Line?: The Use of Force and International Law October 21, 2010
Extending the Front Line?: The Use of Force and International Law Live WebseminarOctober 21, 2010 Mr. Claude Bruderlein Director Program on Humanitarian Policy and Conflict Research at Harvard University Ms. Naz Modirzadeh Associate Director Program on Humanitarian Policy and Conflict Research at Harvard University
This Live Seminar will examine legal and policy challenges pertaining to the use of force outside traditional zones of military operations, including allegations of "targeted killing" and "extrajudicial killing." By reviewing recent counterterrorism operations and litigation concerning whether those operations are lawful, this Live Seminar will look into the following questions:
How do the jus ad bellum (the law governing the resort to force) and the jus in bello (the law governing conduct of hostilities) interact, if at all, in counterterrorism operations?
How, if at all, do contemporary counterterrorism operations affect legal standards pertaining to targeting, detention, interrogation, and fair trials?
What characteristics -- such as temporal and geographic factors, as well as the intensity of hostilities -- determine whether a specific use of force triggers a law enforcement paradigm or a military action paradigm?
These questions will be reviewed by reference to recent counterterrorism operations involving the use of force outside traditional notions of the “battlefield."
Andrew March is Assistant Professor (Adjunct) of Law at Yale Law School and Assistant Professor in the Department of Political Science at Yale University. His research interests are in contemporary political philosophy, Islamic ethics and political thought, and comparative political theory. His book Islamic and Liberal Citizenship: The Search for an Overlapping Consensus, was just published by Oxford University Press (2009). He has published articles on various aspects of Islamic legal and ethical thought. He is a graduate of the University of Pennsylvania and the University of Oxford.
Panelists Laurie R. Blank Director IHL Clinic, Emory University School of Law Jonathan Hafetz Associate Professor Seton Hall Law School Kevin Jon Heller Senior Lecturer Melbourne Law School
Laurie R. Blank is the Director of the International Humanitarian Law Clinic at Emory University School of Law, where she teaches international humanitarian law and works directly with students to provide assistance to international tribunals, non-governmental organizations and law firms around the world on cutting edge issues in humanitarian law and human rights. Professor Blank is the project director of Mind the Gap: Creating a Toolbox to Assess the Applicable Law Along the Continuum of Conflict, a multinational project to examine the legal frameworks in stability operations challenges posed by complex and develop training and other tools to meet those challenges on the ground. She is also the co-director of a multi-year project on military training programs in the law of war and the co-author of Law of War Training: Resources for Military and Civilian Leaders (USIP 2008, with G. Noone, second edition 2011). Before coming to Emory, Professor Blank was a Program Officer in the Rule of Law Program at the United States Institute of Peace. At USIP, she directed the Experts’ Working Group on International Humanitarian Law, in particular a multi-year project focusing on New Actors in the Implementation and Enforcement of International Humanitarian Law.
She is the author of numerous articles and opinion pieces on topics in international humanitarian law, including, most recently, “Defining the Battlefield in Contemporary Conflict and Counterterrorism: Understanding the Parameters of the Zone of Combat,” Georgia Journal of International and Comparative Law (forthcoming 2010-2011), and “Finding Facts But Missing the Law: The Goldstone Report and Lawfare,” Case Western Reserve Journal of International Law (forthcoming 2011). Professor Blank received a B.A. in Politics from Princeton University, an M.A. in International Relations from The Paul H. Nitze School of Advanced International Studies (SAIS) at The Johns Hopkins University, and a J.D. from New York University School of Law. She has spoken in the U.S. and abroad on topics including the laws of war, clinical work in international humanitarian law and transitional justice.
Jonathan Hafetz is an Associate Professor of Law at Seton Hall Law School.He focuses his research on national security, human rights, immigration, and constitutional law. He joined Seton Hall Law School as an Associate Professor in 2010. Professor Hafetz is the author of the forthcoming book Habeas Corpus after 9/11: Confronting America’s New Global Detention System (NYU Press 2011). He is the co-editor (with Mark Denbeaux) of The Guantanamo Lawyers: Inside a Prison Outside the Law (NYU Press 2009). Professor Hafetz’s scholarship has appeared in numerous publications, including the Yale Law Journal, Fordham International Law Journal, American University InternationalLaw Review, Fletcher Forum of World Affairs, and Fordham Urban Law Journal.
Prior to joining Seton Hall, Professor Hafetz was an attorney at the ACLU’s National Security Project. Professor Hafetz has served as counsel in leading national security habeas corpus cases, including Al-Marri v. Spagone, which involved the military detention of a legal U.S. resident, and Munaf v. Geren, which involved the detention of two American citizens in Iraq.
In 2010 was appointed to serve on the New York City Bar Task Force on National Security and the Rule of Law. Professor Hafetz earned his J.D. from the Yale Law School. He holds an M. Phil in Modern History from Oxford University and a B.A. from Amherst College.
Al-Aulaqi v. Obama is a federal lawsuit filed in U.S. District Court for the District of Columbia by Nasser Al-Aulaqi on behalf of his son, Anwar al-Aulaqi.
According to news reports, Anwar Al-Aulaqi, an American citizen in Yemen, has been placed on a “kill list” by the U.S.
The U.S. government claims Anwar Al-Aulaqi is the leader of al Qaeda in the Arabian Peninsula (AQAP), a Yemen-based terrorist group that has claimed responsibility for numerous terrorist attacks against the U.S.
The lawsuit was filed by the ACLU and Center for Constitutional Rights.
The suit asserts claims under the Fourth and Fifth Amendments to the U.S. Constitution, challenging the imminent deprivation of Al-Aulaqi’s life without due process of law (i.e., as an extrajudicial killing).
Since Sept. 11, 2001, the U.S. has reportedly carried out numerous “targeted killings” in connection with the global “war on terror.”
Targeted killings have been carried out by the U.S. through unmanned aerial vehicles (such as CIA-operated Predator drones)
The plaintiff in Al-Aulaqiseeks a judicial declaration that Constitution and international law prohibit the U.S. government from carrying out targeted killings outside of armed conflict except as a last resort to prevent specific, concrete, and imminent threat of death or serious physical injury.
The suit further seeks an injunction prohibiting the targeted killing of Anwar al-Aulaqi and requiring the U.S. government to disclose the standards under which it determines American citizens may be targeted for death.
The Parties’ Arguments
To obtain a preliminary injunction, the plaintiff must demonstrate, among other things, that there is a substantial likelihood of success on the merits of the action.
Plaintiff argues that the Constitution and international law prohibit the use of lethal force against civilians outside of armed conflict except as a last resort to prevent an imminent attack that is likely to cause death or serious physical injury.
Plaintiff additionally challenge the secrecy and absence of standards under which targeted killings are carried out by the U.S.
The U.S. government, in its response, submits several threshold arguments for dismissing the case, without the court ever reaching the question of whether the targeting killing of Al-Aulaqi would be legal. These arguments include the following:
Lack of “next friend” standing: that Al-Aulaqi’s father cannot bring suit on his son’s behalf because his son does not, in fact, lack the ability to access the courts.
Non-justiciable political questions: that the federal courts (as opposed to the political branches) are not competent to decide when and whether the U.S. may use lethal armed force in an armed conflict nor to decide the scope (geographic or otherwise) of the armed conflict between the U.S. and al Qaeda and “associated” forces.
“State secrets”: that information protected by the military and state secrets privilege is necessary to litigate plaintiff’s claims and the case, therefore, cannot proceed without significant harm to the national security of the United States.
The government says little about the merits, claiming only that the President is authorized to use force against Al-Aulaqi under the 2001 Authorization for Use of Military Force (AUMF), a joint resolution passed by Congress following 9/11, because AQAP is “associated” with al Qaeda, an organization with which the U.S. is at war.
Larger Questions and Implications
Al-Aulaqi v. Obama, however,not only challenges targeted killing; more broadly, it contests the proposition that there is a, legally speaking, a global “war on terror” as defined by the Bush and Obama administrations.
The suit thus addresses the U.S. government’s claim that it can effectively treat the entire world as battlefield in a territorially-unbounded armed conflict against terrorism, a concept that has underpinned other U.S. national security policies since 9/11, including the detention of “enemy combatants” at Guantánamo and elsewhere and the use of military commissions to try terrorist suspects.
The suit also tests how far the U.S. government’s asserted right to use armed force against (and, by implication to both kill and detain militarily) those it claims are “associated” with al-Qaeda (here, the Yemen-based group of which the government says Al-Aulaqi is a part), despite the dubious application of the principle of co-belligerency outside the context of international armed conflict (i.e., a conflict between nation-states)
Larger Questions and Implications
The suit, however, faces numerous hurdles and it is unclear whether a court will ever reach the merits and address the legality of targeted killing.
Indeed, to date, after almost a decade of litigation, many critical questions about the “war on terror”—including its permissible scope under domestic and international law—have yet to be determined by the U.S. courts.
Further, because the claims in this suit rest heavily on Al-Aulaqi’s U.S. citizenship, any ruling that addresses the merits may turn in whole or in part on that citizenship status, thereby limiting or blunting the suit’s potentially broader applications.
If the courts do, however, address the merits, it will both reaffirm the importance of judicial review in national security matters and help resolve questions about the nature and scope of the armed conflict against al Qaeda left unaddressed by the Supreme Court’s prior “enemy combatant” detention/military commission decisions such as Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, andBoumediene v. Bush.
Kevin Jon Heller is currently a Senior Lecturer at Melbourne Law School, where he teaches international criminal law and criminal law. He holds a JD with distinction from Stanford Law School, an MA with honours in literature from Duke University, an MA and BA, both with honours, in sociology from the New School for Social Research, and will receive his Ph.D in law from Leiden University in early 2011. His edited book The Handbook of Comparative Criminal Law will be published by Stanford University Press in October 2010 and his book The Nuremberg Military Tribunals and the Origins of International Criminal Law will be published by Oxford University Press in March 2011. He has been involved in the International Criminal Court’s negotiations over the crime of aggression, served as Human Rights Watch’s external legal advisor on the trial of Saddam Hussein (whose lawyers cited his academic work in their appeals), and consulted with a number of defendants at the ICTY and ICTR. He is currently serving as one of Radovan Karadzic's formally-appointed legal associates.
Thesis: the U.S. as international-law bricoleur Elision 1: Jus ad bellum and international human rights law Elision 2: Jus in bello and international human rights law Elision 3: International armed conflict and non-international armed conflict
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