Volume 8

Issue 1

Off-Ramp Opportunities in Material Support Cases

by Kelly A. Berkell

Strategies to counter violent extremism in the United States have centered around preventing violent extremism before it takes hold. The need for intervention, rehabilitation, and reintegration once individuals have already headed down extremist pathways—and intersected with the criminal justice system—receives less consideration, but policymakers and practitioners are increasingly taking note of this void. Factors favoring the development of innovative off-ramp approaches include: the public safety imperative of preventing future violence and recidivism; the increased volume of investigations, rendering prosecution or long-term surveillance in every case impossible or impractical; mitigating circumstances such as the non-violent nature of some material support crimes and the youth of many offenders; and the long-term value of building trust for community partnerships. Program development should be evidence-based, relying upon a comprehensive international analysis, while tailored to incorporate U.S. constitutional requirements and cultural norms including protection of civil rights and civil liberties. This article explores the basis and opportunities for preventing future violence when charging and sentencing defendants who are either suspected or convicted of providing material support for terrorism.


Social Media Compliance Programs and the War Against Terrorism

by Susan Klein and Crystal Flinn

Widespread Internet use by terrorists had made the prevention of terror attacks increasingly difficult. This Article argues that social media companies, like other corporate entities, should be legally required to institute compliance programs that ferret out and report terrorist activity at the earliest possible opportunity. To this end, the Article proposes text for new legislation that would criminalize social media companies’ failure to discover and release terrorism related posts to the government. The authors alternatively suggest borrowing from the white-collar crime arena to secure company assistance in government investigations by granting leniency at sentencing to offending companies. The Article concludes by addressing anticipated constitutional arguments and opposition to the proposed legislative framework.


In Defense of the U.S. Maritime Drug Law Enforcement Act: A Justification for the Law’s Extraterritorial Reach

by Lieutenant Commander Aaron J. Casavant

Despite the fact that certain drug crimes take place thousands of miles from the United States, aboard foreign vessels, drug traffickers are often successfully prosecuted in U.S. federal courts. This system is firmly grounded in international and domestic law and enables the U.S. government to deliver serious criminal consequences to drug trafficking organizations (DTOs) and individual drug smugglers, often for violating U.S. laws like the Maritime Drug Law Enforcement Act (MDLEA). Some commentators have argued, however, that international law principles of prescriptive jurisdiction and constitutional due process prohibit the criminal prosecution of foreign nationals with little, if any, connection to the United States. These scholars also argue that drug trafficking is not subject to universal jurisdiction because it is not yet recognized as a universal crime. This article argues that there are other, equally valid bases under international law supporting the MDLEA that do not require maritime drug trafficking to be considered a universal crime to enable prosecution in the United States.


Eve of Destruction: Implementing Arms Control Treaty Obligations to Dismantle Weaponry

by David A. Koplow

The corpus of arms control treaties now includes diverse instruments regulating state possession and use of various weapons. One aspect of these treaties that has not received sufficient attention concerns the provisions regulating weapons disposal. These provisions have represented very different legal and political strategies regarding the physical task of weapons elimination. Such provisions generally attempt to reconcile the benefits of certainty (by crafting precise legal obligations that specify dismantling procedures and timetables in detail) versus the benefits of flexibility (by allowing reasonable accommodation for changed circumstances or legitimate difficulties in accomplishing the destruction). In three prominent instances that balancing process has gone badly awry, producing widespread, long-term treaty violations or evasions. This Article provides the first systematic examination of that diverse state practice, scrutinizing the successes and failures, summarizing the lessons learned, and presenting recommendations for future arms control efforts. It thus sheds light on the “back end” of the disarmament process: the mechanisms through which countries go from a high-level agreement about the numbers and types of weapons they will eliminate from their respective arsenals toward the practical phase of accomplishing destruction.


Issue 2

Peacetime Cyber Responses and and Wartime Cyber Operations under International Law: An Analytical Vade Mecum

by Michael N. Schmitt

While there is no longer any serious doubt that international law applies to transborder cyber operations, the international community has been unable to achieve consensus about precisely how international-law principles apply in cyberspace. This is largely because states remain conflicted, struggling to balance the need to restrain cyber operations of other parties while not tying their own hands. The Tallinn Manual 2.0, published in March 2017, aims to clarify existing law by collecting rules and providing commentary. However, it does not offer a clear roadmap for legal analysts to think through cyber operations. This Article seeks to begin filling that void. It provides flowcharts and commentary discussing the relevant law. The Article is designed to walk legal advisers and others through the analytical process for evaluating how international law applies to cyber attacks during peacetime and in armed conflicts.


Reconceptualizing Individual or Unit Self-Defense as a Combatant Privilege

by E. L. Gaston

In recent conflicts, self-defense, and the related concept of “hostile intent” that allows soldiers to fire on more ambiguous threats, are used to justify an increasingly large share of uses of force, somewhat displacing international humanitarian law (IHL) analysis. Using case studies of four states’ practice (United States, United Kingdom, Germany, and France) this Article demonstrates how the expanded use of self-defense, unaccompanied by a clarification of its relationship to IHL principles, has contributed to both overly broad and overly narrow interpretations in practice. A more precise articulation of the source and scope of this right would help mitigate the risks this presents. Specifically, this Article recommends anchoring the right to self-defense in IHL as part of the combatant’s privilege, to reduce the risk of displacing IHL, enhance accountability, and better balance the threats faced by soldiers with protection of civilians.


Military Strategy: The Blind Spot of International Humanitarian Law

by Yishai Beer

The stated agenda of IHL is to humanize the theater of war. Since the strategic level of war most affects war’s conduct, one might have expected IHL to focus upon it. Paradoxically, the prevailing law generally ignores the strategic plane and assesses the conduct of war through a tactical lens. This disregard of military strategy has a price that can be clearly observed in the prevailing law of targeting. This Article challenges the current blind spot of the law: its disregard of the direct consequences of war strategy and the war aims deriving from it. It asks those who want to comprehensively reduce war’s hazards to leverage military strategy as a constraining tool. The effect of the suggested approach will be demonstrated through and analysis of targeting rules, where the restrictive attributes of military strategy, which could play a key role in limiting targeting, have been overlooked.


At the Crossroads of Control: The Intersection of Artificial Intelligence in Autonomous Weapon Systems with International Humanitarian Law

by Alan L. Schuller

Lawyers and scientists have repeatedly expressed a need for practical, substantive guidance on the development of Autonomous Weapons Systems (AWS) consistent with the principles of IHL. Less proximate human control in the context of machine learning poses challenges for IHL compliance, since this technology carries the risk that subjective judgments on lethal decisions could be delegated to artificial intelligence (AI). Lawful employment of such technology depends on whether one can reasonably predict that the AI will comply with IHL in conditions of uncertainty. With this guiding principle, the article proposes clear, objective principles for avoiding unlawful autonomy: the decision to kill may never be functionally delegated to a computer; AWS may be lawfully controlled through programming alone; IHL does not require temporally proximate human interaction with an AWS prior to lethal action; reasonable predictability is only required with respect to IHL compliance; and close attention should be paid to the limitations on both authorities and capabilities of AWS.


Putting Lethal Force on the Table: How Drones Change the Alternative Space of War and Counterterrorism

by Joshua Andresen

Contrary to the prevailing view that drones spare more civilian lives, this Article argues that drones place more civilians at risk for the simple reason that drones are used outside areas of active hostilities in civilian populated areas where no other weapon could be used. Many commentators assume that if we were not using drones, we would use some less precise and more destructive alternative, but this assumption is wrong. Drones put lethal force on the table where it would otherwise be absent and highlight the lack of law designed to regulate their use. Because the law of armed conflict was developed for active war zones, it is inadequate to govern drone strikes in areas away from active hostilities. As a result, this Article argues that the laws of distinction and proportionality must be reformulated for drone strikes. Rather than focusing solely on the commander’s intent to target enemy combatants, distinction should require a functional analysis of the geographic area to be destroyed by a strike—the death zone. Where the death zone by is substantially a civilian object, such as an outdoor market or a civilian apartment building, the death zone as a whole should be deemed a civilian object, regardless of the presence of an otherwise valid military objective, such as an enemy militant.