Issue 1
Yemen: Is the U.S. Breaking the Law?
by Oona Hathaway, Aaron Haviland, Srinath Reddy Kethireddy and Alyssa T. Yamamoto
The almost four-year long brutal civil war in Yemen between the central government of President Abdu Rabbu Mansour Hadi and a Shi’a Islamic movement called the Houthis shows no signs of slowing. A coalition of countries led by Saudi Arabia has provided extensive support to President Hadi, including by conducting an ongoing military campaign against the Houthis. In the course of this military campaign, the Saudi-led coalition has been accused of violating international humanitarian law by killing hundreds of civilians through airstrikes, as well as contributing to a humanitarian disaster by imposing a blockade. Though not a member of the Saudi-led coalition, the United States has provided invaluable support to the coalition’s campaign through weapons sales, mid-air refueling of coalition aircraft, targeting assistance, and other training and logistical support. This Article surveys and analyzes a variety of domestic and international law that may apply to the U.S. role in Yemen and finds that continued U.S. support for the Saudi-led coalition in Yemen may violate several domestic and international laws. The article concludes by considering whether and how the laws might be enforced and U.S. legal violations brought to an end.
The Return of Gunboat Diplomacy: How the West has Undermined the Ban on the Use of Force
by Patrick C. R. Terry
This article outlines how the West’s manifold attempts at reforming the jus ad bellum, by permitting an increasing number of exceptions to the ban on the use of force, has led to a serious weakening of the structures on which the conduct of international affairs has rested since the end of WWII. The belief that the invocation of novel justifications for resorting to the use of force could be restricted to the West and its close allies has proved unfounded as many states from Russia via the Arab peninsula to Turkey are now also laying claim to the right to use force in an increasing number of cases. Thus what was once heralded as a modernizing effort actually has led to an erosion of the ban on the use of force.
Uncertainty in the Law of Targeting: Towards a Cognitive Framework
by Michael N. Schmitt and Major Michael Schauss
This article offers a cognitive framework for thinking about the confluence of uncertainty and the IHL rules governing targeting. In abstract discussions, the tendency has been to understand the requisite level of certainty for engaging a target as a particular threshold, that is, as “certain enough” to satisfy the requirement to confirm a target as a military objective, qualify harm as collateral damage or military advantage that must be factored into the proportionality calculation, or require the taking of feasible precautions in attack to minimize harm to civilians and civilian objects. In our view, this approach neither reflects targeting practice, nor adequately operationalizes the balance between humanitarian considerations and military necessity that all “conduct of hostilities” rules must reflect. We suggest that the issue is more nuanced, that dealing with uncertainty involves a multifaceted situational assessment when planning, approving or executing attacks. The article is our attempt to widen the aperture of discussion about battlefield ambiguity and doubt.
War Powers far from a Hot Battlefield: Checks and Balances on Presidential War-Making through Individual and Unit Self-Defense
by E. L. Gaston
While soldiers, marines, and their surrounding units have long been assumed to have a right to defend themselves, reliance on this right to individual and unit self-defense has expanded significantly since 2001. It has been applied to uses of force across a range of conflict situations, from being regularly used to counter ambiguous and asymmetric threats in Iraq and Afghanistan, to justifying drone strikes and low-footprint special forces engagements far from a “hot battlefield.” In the latter situations, though, the legal remit to use force is more controversial, and use of individual and unit self-defense to justify significant strikes or engagement in hostilities have raised legal questions. This article will explore the domestic and international legal bases for these extended self-defense strikes and operations.
Fiduciary Duty, Honor, Country: Legislating a Theory of Agency into Strategic Civil-Military Relations
by Major Dan Maurer
Dissent, annoyance, mutual frustration, misplaced trust, breaches of confidentiality, unwelcome candor, and differing senses of obligation, loyalty, and service are all recurring themes in the day-to-day theater that is the civil-military relationship between American political and military strategic elites. The health of these relationships matters significantly for the fitness of the outcomes for which these parties are accountable. Wars (whether and how to fight them), budgets (how much to spend, on what, and for whom), force structure (how to organize the means of national defense), and personnel (who to recruit and retain, and who—if anyone—should be excluded from service) are the critical issues, and these parties often disagree over these fundamental questions. The efficiency, prioritization, thoughtfulness, and public explanations of these issues will also be turbulent in the wake of unsteady, rocky strategic civil-military relationships. Congress, no less than the Executive Branch and military leaders, has a stake and a say in these relationships.
Issue 2
Totemic Functionalism in Foreign Affairs Law
by Elad D. Gil
In many Western democracies, and particularly in the United States, foreign affairs are primarily an executive enterprise. Owing to the executive’s relative institutional advantages over the legislature and the judiciary—in expertise, knowledge, speed, unitary structure, and democratic accountability—courts afford the President considerable deference in cases relating to foreign affairs. But there is something deeply flawed in the way judges apply functionalist reasoning in this context. Instead of using functionalism for what it is—a contextual and adaptable paradigm for ascertaining whether and how much deference is desired in order to make the challenged policy or act work best—judges frequently simply rely on the executive’s special competence to apply a de facto presumption of near-total deference, which this Article terms “totemic functionalism.” This Article traces the conceptual underpinnings of totemic functionalism and critically analyzes its pervasive effect in foreign affairs law. Using three case studies and other recent examples, it then shows how totemic functionalism undermines the system of checks and balances, first between the organs of government and then, indirectly, inside the executive branch.
Getting Past the Imperial Presidency
by Deborah Pearlstein
In an age in which the “imperial presidency” seems to have reached its apex, perhaps most alarmingly surrounding the use of military force, conventional wisdom remains fixed that constitutional and international law play a negligible role in constraining executive branch decision-making in this realm. Yet as this Article explains, the factual case that supports the conventional view, based largely on highly selected incidents of presidential behavior, is meaningless in any standard empirical sense. Indeed, the canonical listing of presidential decisions to use force without prior authorization feeds a compliance-centered focus on the study of legal constraint rooted in long-since abandoned understandings of how and why legal systems function. While the reality that law does not operate as an on/off switch has long been accepted among legal scholars when it comes to ordinary law—all legal rules face “the fact of violation,” uncertainty in meaning, and a complex array of human motives and incentives for acting—these phenomena seem yet to have informed our understanding of law’s role in shaping decision-making surrounding state uses of force. This Article argues that accounting for these features of law is especially relevant to the study of constitutional and international regulations of state use of force. Applying a more contemporary understanding of how law works, the Article illustrates how shifting our methodological approach away from compliance-centered metrics of legal constraint may require reinterpreting the conventional set of examples we have long assumed we understood. At a minimum, it requires redesigning our approach to the empirical study of executive branch decision-making. And it suggests we may need to rethink what mechanisms may most effectively constrain the “imperial presidency” in the years ahead.
The Mutual Assistance Clauses of the North Atlantic and EU Treaties: The Challenge of Hybrid Threats
by Aurel Sari
Mutual assistance clauses serve a dual purpose. They commit their signatories to stand up to a common threat and are thereby meant to deter potential aggressors. Their dual purpose places them at the crossroads between war and peace and the intersection between law and strategy. The rise of hybrid threats, however, has led many to question whether the mutual assistance guarantees found in the North Atlantic and EU Treaties remain suited for our present security environment. Adversaries employ tactics that increasingly seem to blur the dividing line between war and peace. The hybridization of warfare thus poses a risk that adversaries may circumvent classic security guarantees. The purpose of this Article is to compare the mutual assistance clauses of the North Atlantic and EU Treaties to determine their scope of application, clarify the nature and extent of the obligations they impose on the contracting parties, and assess their vulnerability to hybrid threats. The analysis confirms that the provisions in question are at risk of subversion, but that the impact of this threat is more limited than is often assumed. Nevertheless, this Article argues that there is no room for complacency. NATO, the EU, and their member states should take steps to strengthen legal interoperability in order to increase the legal resilience of their collective security arrangements against the challenges posed by hybrid threats.
The Law Enforcement Paradigm under the Laws of Armed Conflict: Conceptualizing Yesh Din v. IDF Chief of Staff
by Shelly Aviv Yeini
While the two traditional paradigms for the use of force in international law are law enforcement under international human rights law and conduct of hostilities under laws of armed conflict, this Article examines the possibility of a new paradigm of law enforcement under the laws of armed conflict. In the judgment of Yesh Din v. IDF Chief of Staff (Yesh Din) recently given by the Supreme Court of Israel, the court endorsed this entirely new paradigm, which challenges the traditional distinction between law enforcement and the conduct of hostilities. This Article explores the legal justifications of the paradigm and examines whether it has legal grounds to rely upon. It further demonstrates that the new paradigm is vague, permissive, and extremely under-developed. The new paradigm has the potential to be abused by states picking and choosing the norms they wish to apply from either international human rights law or the laws of armed conflict. It is a common saying that “hard cases make bad law.” The arguably problematic judgment of Yesh Din is the result of a complicated and challenging situation that has created bad law indeed.