Abstract
Several states have been engaged for years in armed conflicts against non-state actors outside their territory. These conflicts implicate a wide array of difficult questions related to international humanitarian law (‘IHL’). Yet for structural and political reasons, the international community has not attempted to craft a new treaty to regulate these armed conflicts, and state practice is not yet sufficiently robust to crystallize new rules of customary international law. Although we have no new international rules to guide states’ conduct in these contexts, that is not to say that we have no new rules at all to regulate these types of armed conflict. The new rules simply stem from non-international sources. Domestic courts of certain states have played a significant role in establishing new rules to govern how those states must conduct themselves during these armed conflicts. These courts have stepped in to interpret, extend, and craft laws applicable in armed conflict, producing what this chapter terms ‘domestic humanitarian law’ (‘DHL’). DHL is important for two reasons. First, it establishes detailed, legally binding rules by which particular states’ militaries must conduct themselves in extra-territorial conflicts. Second, the existence of DHL will have a significant effect on future IHL developments. DHL will affect the production and content of customary rules, the likelihood of future agreements about IHL, and the substance of those future rules in the event such an agreement emerges. The proliferation of DHL has the propensity to reduce international calls for a new treaty and complicates the initial negotiating positions of states whose courts have produced DHL. But DHL has advantages as well for IHL development, akin to the U.S. constitutional idea that U.S. states serve as experimental ‘laboratories’ in which different approaches to problems are tested. Because states will continue to face serious challenges in developing new IHL treaty rules on the international stage, the production of new interpretations and norms in U.S. and other domestic courts represents a potentially important phase in the development of IHL. As importantly, the phenomenon of DHL allows us fruitfully to explore the nature of domestic court decisions more generally in the project of international law creation.
Ashley Deeks is Associate Professor at the University of Virginia Law School, 580 Massie Road, Charlottesville, Virginia.
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Notes
- 1.
U.S. Department of Justice White Paper, Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qaida or an Associated Force, pp. 2–3.
- 2.
See infra part 4.
- 3.
Blum 2013.
- 4.
As discussed below, case law emerging from the European Court of Human Rights must be distinguished in certain ways from the decisions emerging from domestic courts.
- 5.
See infra part 5.1.
- 6.
- 7.
See generally Henckaerts and Doswald-Beck 2005 (concluding that ‘the gaps in the regulation of the conduct of hostilities in Additional Protocol II have largely been filled through State practice, which has led to the creation of rules parallel to those in Additional Protocol I, but applicable as customary law to non-international armed conflicts’).
- 8.
International Commission of Jurists, The Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights (2009) Assessing Damage, Urging Action. http://www.icj.org/dwn/database/EJP-Report.pdf. Accessed 2 July 2013.
- 9.
Blum and Heymann 2010 (‘The killing on the basis of blame rather than status, the difficulties in ensuring the accurate identification of the target, and the fact that operations take place outside of a defined battlefield—all make the war paradigm at best a proximate, but by no means a perfect, fit.’); Rona 2007, p. 241; The Guardian, Reid calls for changes to Geneva Convention, 3 April 2006, http://www.theguardian.com/uk/2006/apr/03/politics.terrorism. It is beyond the scope of this chapter to delineate the complicated interplay between domestic and international law; IHL and international human rights law; the armed conflict and law enforcement paradigms; and questions related to extraterritorial application of domestic laws.
- 10.
Vite S, ICRC Legal Expert, Interview, 28 Nov. 2011, http://www.icrc.org/eng/resources/documents/interview/2011/ihl-development-interview-2011-11-28.htm. Accessed 2 July 2013; International Committee of the Red Cross, Resource Center, ‘Direct participation in hostilities: questions & answers’, 2 June 2009. http://www.icrc.org/eng/resources/documents/faq/direct-participation-ihl-faq-020609.htm#a3. Accessed 22 July 2013.
- 11.
See Bellinger and Padmanabhan 2011 (listing literature).
- 12.
At the 31st International Conference of the Red Cross and Red Crescent, states invited the ICRC to ‘pursue further research, consultation and discussion in cooperation with States . . . to identify and propose a range of options and its recommendations to: (i) ensure that international humanitarian law remains practical and relevant in providing legal protection to all persons deprived of their liberty in relation to armed conflict.’ International Conference of the Red Cross and Red Crescent Resolution. http://www.icrc.org/eng/resources/documents/resolution/31-international-conference-resolution-1-2011.htm. Accessed 2 July 2013. As a result, the ICRC has consulted with various states on detention in NIACs, with the apparent goal of producing a ‘soft law’ or ‘best practices’ document.
- 13.
Pauwelyn et al. 2012.
- 14.
Id., pp. 10–12.
- 15.
At least one counter-example exists. Francis Lieber developed and the U.S. military issued General Order 100 after the Civil War had begun, though the Order was a unilateral proclamation, not an international treaty. The War Department issued the Order on April 24, 1863.
- 16.
New legal rules tend to emerge when, among other factors, trust is high among the relevant players and consensus exists about foundational values. Glennon 2013, p. 563. In the 2002–2008 time frame, trust was low among the United States and many other countries, and there was a patent lack of consensus about the foundational values reflected in U.S. military and intelligence strategies and tactics. See also Keohane 1982, pp. 335–336 (‘The condition for [regimes to be formed] is that sufficient complementarity or common interests exist so that agreements benefiting all essential regime members can be made.’).
- 17.
See, e.g., Bellinger 2007 (‘Now, I am aware that many Europeans do not agree that we are in a war with al Qaida at all . . . .’).
- 18.
Kretzmer 2009, p. 31.
- 19.
As Michael Glennon notes, laws emerge when certain conditions are present, including when actors within the system are relatively equal. Glennon 2013, p. 563. Here, one set of affected actors (states) is unequal to the other set of actors (non-state actors). In addition, states with powerful militaries that are currently engaged in conflicts against transnational non-state actors are very differently situated from states with weak militaries and no potential conflicts on the horizon.
- 20.
Kretzmer 2009, p. 32; 1949 Geneva Convention III, Article 3; Additional Protocol II to the Geneva Conventions, Article 1 (envisioning that non-state actor party to conflict has capacity to comply with IHL).
- 21.
Provost 2012, p. 29 (Empirical analysis suggests that ‘norms that do not attract reciprocity have a weaker compliance pull than norms that do’.).
- 22.
For a discussion of the diversity of terrorist groups that may conduct armed activities against states, see generally Waxman 2010.
- 23.
See Civil Military Fusion Centre, Blowback: The Unintended Consequences of Hezbollah in Syria, p. 2, Sept. 2013, https://www.cimicweb.org/cmo/ComplexCoverage/Documents/Reports/20130915_Hezbollah_Final.pdf (describing Hezbollah’s provision of social services); Council on Foreign Relations, Backgrounder: Hamas, 27 Nov. 2012, http://www.cfr.org/israel/hamas/p8968 (“Hamas's local support, in many ways, can be traced to its extensive network of on-the-ground social programming, including food banks, schools, and medical clinics.”). The Government of Israel has given Hezbollah fighters POW protections in some cases, in hopes of obtaining reciprocal treatment for captured Israeli soldiers.
- 24.
Terrorist Organization Profile, Basque Fatherland and Freedom (ETA), Study of Terrorism and Responses to Terrorism, http://www.start.umd.edu/start/data_collections/tops/terrorist_organization_profile.asp?id=96. Accessed 2 July 2013 (stating that ETA is ‘dedicated to a separate nation-state for the Basque people’); id., Revolutionary Armed Forces of Colombia (FARC) (‘The FARC's stated goal is to overthrow the current democratic government of Colombia and replace it with a Communist government.’).
- 25.
Colucci L (2013) ‘Don’t Underestimate the al Qaeda Threat’, U.S. News (14 March 2013). http://www.usnews.com/opinion/blogs/world-report/2013/03/14/dont-underestimate-the-al-qaeda-threat. Accessed 2 July 2013. As former CIA Director James Woolsey put it, ‘Al Qaeda does not want a seat at the table; they want to blow the table up.’.
- 26.
Waxman 2010, pp. 442–443 (‘[T]he structural heterogeneity of transnational terrorist threats means the development of customary international law on the use of force in self-defense against ‘terrorism’ or even ‘state-sponsored terrorism’ is likely to be slow and methodologically more challenging than typical interstate issues.’); Transatlantic Threat Perceptions (2002) 8 Strat. Comments, International Institute for Strategic Studies (hereafter ‘Transatlantic Threat Perceptions’) (‘The ethnonationalist groups that have tended to plague Europe used violence with restraint to preserve or secure a place at the negotiating table and to an extent could be politically tamed. Al-Qaeda, by contrast, has no interest in bargaining and seeks to debilitate the US by inflicting mass casualties.’).
- 27.
Kagan 2003, pp. 27–28. With regard to the threat posed by al Qaeda, Kagan argues that Europeans have never really believed that they will be a primary target of that group. Id. at 36.
- 28.
Phillips J 2006 The Evolving Al-Qaeda Threat. Heritage Foundation (17 March 2006). www.heritage.org/research/lecture/the-evolving-al-qaeda-threat. Accessed 2 July 2013.
- 29.
Transatlantic Threat Perceptions (‘Transatlantic differences in terrorist threat perceptions are, to a degree, justified. The United States is al-Qaeda’s bête-noire and its preferred target.’).
- 30.
See generally Bellinger and Padmanabhan 2011.
- 31.
See UN Human Rights Council (2010) Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Addendum: Study on Targeted Killings. U.N. Doc. A/HRC/14/24/Add.6.
- 32.
In the wake of September 11, the U.S. government repeatedly objected to judicial involvement in detention cases. See Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Rasul v. Bush, 542 U.S. 466 (2004); Respondents’ Motion To Dismiss for Lack of Jurisdiction, Hamdan v. Rumsfeld, No. 05-184 (Jan. 2006). See also Resnik 2006, p. 1573 (‘[T]he Bush Administration has consistently opposed judicial oversight of the treatment of detainees alleged to be threats to national security.’).
- 33.
Although this chapter focuses on domestic court decisions, other domestic state practice obviously has emerged in and as a result of the current conflicts. Examples include legislation (including, in the United States, the Detainee Treatment Act, the Military Commissions Act, and the National Defense Authorization Act of 2012, and in Israel the Unlawful Enemy Combatants Law); US military policies (including review boards for detention such as Combatant Status Review Tribunals, Administrative Review Boards, and Detainee Review Boards in Afghanistan); UK detention review procedures in Iraq; and several US Executive Orders (including one establishing a periodic review of the need to retain at Guantanamo detainees who lost their habeas cases). This type of state practice raises fewer novel institutional questions, however, because the executive branch and particularly the military traditionally have been the domestic actors who develop those rules and policies.
- 34.
Bellinger and Padmanabhan 2011, pp. 209–212.
- 35.
One might include a fifth category: for what acts may individuals fighting in this conflict be tried criminally? For reasons of space, I do not take on this category. It is certainly possible, however, that decisions in various U.S. military commissions and federal cases will shed light on this question.
- 36.
Even if one concludes that neither the laws of international or non-international armed conflict is a perfect fit, deciding that the transnational armed conflict looks more like one or the other will dictate one’s starting point for modifying the rules.
- 37.
Public Committee Against Torture in Israel v. Government of Israel (Targeted Killings), HCJ 769/02 (IsrSC 2006), para 21, available at http://elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf.
- 38.
Hamdan v. Rumsfeld, 548 U.S. 557, 629 (2006) (concluding that a conflict between individuals and states is distinguishable from a Common Article 2 conflict chiefly because it does not involve a clash between nations).
- 39.
Although it technically may have reserved the issue of whether the conflict was international, the Court determined that, as a matter of treaty law, Common Article 3 applied. It is impossible for a conflict to be both international and non-international, at least under a plain language reading of those terms. Therefore, if Common Article 3 applied, the bulk of the Geneva provisions applicable to international armed conflicts did not.
- 40.
Brooks 2004, pp. 755–756.
- 41.
Goodman 2009.
- 42.
See Additional Protocol I, Article 50(3); Additional Protocol II, Article 13(3).
- 43.
See Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay, In re Guantanamo Bay Litigation, Misc. No. 08-442 (JDB) (13 March 2009) (arguing that the United States and courts should reason by analogy to those detainable in international armed conflict).
- 44.
Gherebi v. Obama, 609 F. Supp.2d 43, 63–66 (D.D.C. 2009) (discussing proper interpretation of ‘direct participation in hostilities’).
- 45.
Id.
- 46.
Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010) (holding that position in the command structure of the armed group is sufficient, but not necessary, to show detainability).
- 47.
Hatim v. Gates, 632 F.3d 720 (D.C. Cir. 2011) (holding that the government may detain those who purposefully and materially support al Qaeda or the Taliban).
- 48.
Hamlily v. Obama, 616 F. Supp.2d 63, 75–77 (D.D.C. 2009) (interpreting ‘associated forces’ to be equivalent to ‘co-belligerents’ and defining the concept as a ‘fully fledged belligerent fighting in association with one or more belligerent powers’).
- 49.
R. Benhalim, R. Chesney and B. Wittes, The Emerging Law of Detention. Brookings Institution, Washington, (2010) p. 22 (‘[A] conclusive judicial determination adopting a narrow understanding of the range of groups and individuals subject to detention under the AUMF may raise comparable questions regarding the range of groups and individuals subject to targeting or other military measures.’).
- 50.
A&B v. State of Israel 2007.
- 51.
Incarceration of Unlawful Combatants Law, 5762–2002, sec 2.
- 52.
Id.
- 53.
A&B, para 21 (‘[W]e are drawn to the conclusion that in order to detain a person it is not sufficient for him to have made a remote, negligible or marginal contribution to the hostilities against the State of Israel.’); id. (‘[I]t is insufficient to show any tenuous connection with a terrorist organization in order to be included within the cycle of hostilities in the broad meaning of this concept.’).
- 54.
Isayeva, Yusupova and Bazayeva v. Russia, ECtHR, App Nos 57947–49/00 (24 Feb. 2005); Isayeva v. Russia, ECtHR, App No 57950/00 (24 Feb. 2005).
- 55.
Abresch 2005, p. 742, 758.
- 56.
See supra note 37.
- 57.
Id., paras 30, 34, and 38.
- 58.
Id., paras 35–37.
- 59.
Id., para 35.
- 60.
Id., Beinisch concurrence.
- 61.
See Abresch 2005, p. 742. This approach stems in large part from the simultaneous application by the European Court of Human Rights of international human rights law and IHL, where the former provides that a state may use lethal force only where it is ‘absolutely necessary.’ ECHR Article 2(2). The ICRC DPH Study also took this position, although the inclusion of this section of the Study caused several expert participants to withdraw their names from the final Study.
- 62.
Studies such as the ICRC’s DPH study (and certain participants’ reactions thereto) also will play an important role in future discussions.
- 63.
US Supreme Court cases such as Johnson v. Eisentrager, 339 U.S. 763 (1950); In re Yamashita, 327 U.S. 1 (1946); and Ex Parte Quirin, 317 U.S. 1 (1942) were about the review of criminal convictions during wartime.
- 64.
Fourth Geneva Convention of 1949, Articles 43, 78.
- 65.
Boumediene v. Bush, 553 U.S. 723 (2008). The Hamdi case, decided well before Boumediene, required the U.S. government to provide an American citizen detainee with notice of the reasons for his detention and an opportunity to rebut those reasons before a neutral decision-maker. Even if future law of war discussions do not mandate judicial review for most cases, it seems likely that decisions such as Hamdi would, in conjunction with provisions such as those found in the Fourth Geneva Convention and Article 75, influence other types of process to which detainees would be entitled. See Deeks 2009.
- 66.
Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010).
- 67.
Id. at 97–98.
- 68.
R (Al Jedda) v. Secretary of State for Defence, [2007] UKHL 58, para 39.
- 69.
ECHR Article 5.
- 70.
Al Jedda v. United Kingdom, Grand Chamber, 27021/08, para 105 (2011).
- 71.
A&B v. Israel, para 22.
- 72.
Bihani v. Obama, 590 F.3d 866, 878 n.4 (D.C. Cir. 2010).
- 73.
In re Guantanamo Detainee Litigation, 577 F.Supp.2d 143 (D.D.C. 2008) (protective order). Israel’s statute governing preventive detention of security threats allows the Israeli courts to admit evidence without disclosing it to the detainee or his counsel if the disclosure were likely to harm state security. Incarceration of Unlawful Combatants Law, 5762–2002, sec 5(e).
- 74.
See R. Chesney, L. Reynolds and B. Wittes, The Emerging Law of Detention 2.0, p. 82, Brookings Institution, Washington (2012) (hereafter ‘Emerging Law 2.0’) (‘A statement will not be discredited merely because it was given in a custodial context without access to counsel or the benefit of a Miranda-style statement of rights . . . and no one has suggested the admissibility of the fruits of coercion rising to the level of torture.’).
- 75.
See supra notes 65–67.
- 76.
Deeks 2008.
- 77.
See Bellinger and Padmanbhan 2011, pp. 41–42 (describing lack of guidance in law of war treaties) and 46 (noting that the United States and UK believe that non-refoulement protection does not apply to in-country transfers as a matter of law); Amnesty Int’l Canada v. Att’y Gen. of Canada, 2008 FC 336 (12 March 2008), para 64 (‘Before transferring a detainee into Afghan custody, General Laroche must be satisfied that there are no substantial grounds for believing that there exists a real risk that the detainee would be in danger of being subjected to torture or other forms of mistreatment at the hands of Afghan authorities.’).
- 78.
Omar v. Harvey, 410 F. Supp.2d 19 (D. D.C. 2006); Mohammed v. Harvey, 456 F. Supp.2d 115 (D.D.C. 2006).
- 79.
Munaf v. Geren, 553 U.S. 674 (2008).
- 80.
Id.
- 81.
Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009).
- 82.
Kiyemba v. Obama, 559 U.S. 1005 (2010).
- 83.
Munaf, 533 U.S. at 702 (appearing to reserve the ‘extreme case’ in which the Executive determines that a transferee is likely to face torture but chooses to transfer him anyway).
- 84.
Amnesty International Canada v. Canada (Chief of the Defence Staff), 2008 FCA 401, [2009] 4 F.C.R. 149.
- 85.
Id., para 30.
- 86.
Id., para 36.
- 87.
Id.
- 88.
R (Al Saadoon & Mufdhi), 61498/08 (Merits and Just Satisfaction) (2010).
- 89.
Al Saadoon & Mufdhi v. United Kingdom, Admissibility Decision (2009), para 88.
- 90.
R (Evans) v. Secretary of State for Defence, [2010] EWHC 1445 (Admin), para 320.
- 91.
Several cases related to transfers during armed conflict are pending in Danish courts. See Ghousouallah Tarin v. Ministry of Defence, Case No. 180/2011 (transfer to Afghanistan); Brak & Others v. Ministry of Defence, Case No. B3421-11 (Iraq), Shahel & Others v. Ministry of Defence, Case No. B-397-12 (Iraq), Saadoun & Others v. Ministry of Defence, Case No. B-1162-12 (Iraq), Al Albarrak & Others v. Ministry of Defence (unnumbered) (Iraq).
- 92.
Roberts 2011, p. 60 (discussing ‘hybrid international/national norms’).
- 93.
See Tams and Tzanakopoulos 2013, pp. 4–5.
- 94.
In the language of Article 31 of the Vienna Convention on the Law of Treaties, this is ‘subsequent practice’, though not subsequent practice that necessarily establishes the agreement of the parties regarding the treaty’s interpretation. The World Trade Organization’s Appellate Body has stated that for an act to count as ‘subsequent practice’ for purposes of Article 31(3)(b) of the Vienna Convention on the Law of Treaties, there must be a ‘concordant, common, and consistent’ set of acts or pronouncements. Appellate Body Report, Japan-Taxes on Alcoholic Beverages, 10, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11AB/R (Oct. 4, 1996) at 12. With a small (though growing) set of examples of DHL from a limited number of states, it is hard to argue that DHL meets the Appellate Body’s test.
- 95.
See Henckaerts and Doswald-Beck 2005, p. xxxii (‘Both physical and verbal acts of States constitute practice that contributes to the creation of customary international law. . . . Verbal acts include military manuals, national legislation, national case-law . . . [and] executive decisions and regulations.’). In the view of some states and scholars, this would constitute practice by ‘specially affected’ states. North Sea Continental Shelf [1969] ICJ 4, 43.
- 96.
Wuerth 2012, p. 826 (describing possibility of conflicts between judicial and executive state practice).
- 97.
Lillich 1970–1971, p. 9.
- 98.
Tams and Tzanakopoulos 2013, p. 1.
- 99.
See Brief of Respondent, Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009) (No. 05-0763).
- 100.
Eric Posner suggests that judges often do both things at once. Posner 2009, p. 20 (‘Like priests in an ancient society who know that their magic is just an illusion, judges purport to find law—that is, apply the rules—even as they make it. They make law by appealing to vague or conflicting rules that do not indicate a determinate outcome while making a policy choice on the sly.’).
- 101.
Emerging Law 2.0, p. 25. Judge Lamberth also said, ‘I think the number of difficult questions presented by the Guantanamo cases is unprecedented in our court. . . . In our court, mostly settled law applies. It makes it interesting. But it really is time-consuming because of the need to proceed carefully’ and decide ‘precedents for future wars as well as this war.’ Rosenberg C (2009) ‘Judges siding with detainees in Guantanamo habeas cases’. Miami Herald, 7 Sept 2009. http://www.mcclatchydc.com/2009/09/07/74970/judges-siding-with-detainees-in.html. Accessed 3 July 2013.
- 102.
Public Committee v. Israel (Targeted Killings), Pres Beinisch concurrence.
- 103.
R (Evans) v. Secretary of State for Defence, [2010] EWHC 1445 (Admin).
- 104.
See Pearlstein 2009, p. 1617 (‘Beyond simple error correction, some form of independent review or monitoring with full information and incentive-creating capacity could function to check an organization's tendencies to exclude relevant information in decision-making, help decisionmakers avoid capture by narrow conceptions of self-interest, correct decision-making tendencies to miss the strategic forest for the tactical trees, and afford opportunities for organizational learning over time.’).
- 105.
Wells 2004, p. 907.
- 106.
Kumm 2004, p. 925 (‘[C]onstitutional courts have engaged in [the practice of striking down laws generated by the legislative process on grounds of constitutional principle] more or less aggressively in many jurisdictions. In many jurisdictions, they enjoy more public support than any other political institution as a result.’); Grosskopf 2008 (arguing that citizens of democratic governments place the highest levels of trust in unelected constitutional courts over elected institutions).
- 107.
See Martin 2007, p. 358 (arguing that increased legal review by courts can increase fact-finding accuracy in the Executive Branch). The counter-argument, of course, is that this remove makes it more likely that courts will issue judgments that are insensitive to true military needs and will undercut the security of the state in which they sit. See U.S. v. Hamdi, 542 U.S. 507 (2004) (Thomas, J., dissenting).
- 108.
Cole 2008, p. 1335 (‘Precisely because we rely so heavily on the executive to maintain our security, we should be skeptical of its ability to give sufficient weight to the liberty side of the balance.’); Sunstein 2004, pp. 52–53 (‘A primary task of the President is to keep the citizenry safe, and any error on that count is likely to produce extremely high political sanctions. As a result, the President has a strong incentive to take precautions even if they are excessive and even unconstitutional.’).
- 109.
Sunstein 2004, p. 53 (describing courts’ ‘historic mission’ to ‘protect individual liberty’).
- 110.
Hamdi v. Rumsfeld, 542 U.S. 507, 535–36 (2004).
- 111.
In some set of cases, the United States government may invoke and a court may accept the applicability of doctrines such as the state secrets or political question doctrine, pursuant to which the court concludes that a particular issue is not justiciable.
- 112.
Deeks 2013 (discussing ways in which national security litigation has led the U.S. Executive branch to reveal previously classified policies on detainee transfers).
- 113.
See, e.g., Declaration of Matthew C. Waxman, para 7, available at www.state.gov/documents/organization/55820.pdf.
- 114.
See Pearlstein 2009, pp. 1575–1578 (‘It is precisely because security sometimes requires secrecy that the involvement of more than one branch may be required to make popular accountability possible at all.’); Benvenisti and Downs 2009, p. 69 (noting that national courts ‘become venues for public participation through NGOs and other representatives of civil society acting either as claimants or amici’).
- 115.
Abramowicz and Colby 2009, p. 987; Vagts 1993, p. 483 (‘Non-government parties too have functions in the [treaty interpretation] process. Private attorneys confronted with executive agents or private adversaries in litigation tell their clients their version of what the treaties mean and argue their position before courts. Law professors find their place in this complex network; through teaching or writing they inform the other actors in this system about their authoritative views on meaning. And in the absence of other powerful assigners of meaning, their role here looms larger than that traditionally assigned to professors in domestic legal processes.’).
- 116.
Hamdan v. Rumsfeld Supreme Court Files, available at http://www.oyez.org/node/61175 (listing 51 amicus briefs, including briefs filed by former ICRC officials; 300 detainees; the Yemeni National Organization for Defending Rights and Freedoms; retired U.S. generals and admirals; and law professors).
- 117.
New State Ice Co. v. Liebmann, 285 U.S. 262 (1932).
- 118.
Bellinger and Padmanabhan 2011, p. 51 (noting that this approach does not resolve the international community’s concern that this policy freedom may be abused). Compare Osofsky 2009, p. 588 (noting that focusing attention only on international solutions to climate change will cause people to ‘miss opportunities for much needed innovation and emissions reduction’ that occur on national and local levels).
- 119.
- 120.
There is a disadvantage to this as well, which is that the rules may skew consistently toward state security, which they might not do if the states crafting them fought fewer armed conflicts.
- 121.
See Roberts 2011, p. 79 (describing how international law may assume different qualities as it is ‘domesticated’).
- 122.
Berman mentions downsides to a pluralist approach to rule-creation. He notes, ‘Of course, all of these jurisdictional redundancies might be seen as perhaps necessary but regrettable concessions to the realities of a world of normative disagreement. Such a view would focus on encroachments upon sovereignty, concerns about forum shopping, uncertainty about applicable rules, litigation costs, and so forth.’ Berman 2008, p. 1167.
- 123.
See supra note 37, paras 34–37.
- 124.
The Copenhagen Process on the Handling of Detainees in International Military Operations, available at http://um.dk/en/politics-and-diplomacy/copenhagen-process-on-the-handling-of-detainees-in-international-military-operations/ (click through to download).
- 125.
Id., principle 12.
- 126.
U.S. Const. Article III, sec. 2, cl. 1 (limiting exercise of judicial review to “cases or controversies”).
- 127.
These include doctrines related to ripeness, mootness, standing, “political questions,” and the protection of state secrets.
- 128.
Deeks 2013, pp. 51–52.
- 129.
Id. at 52; Sunstein 2004, p. 53 (‘Worst of all, they lack relevant information and hence they may not know whether an interference with liberty is actually justified. Because their historic mission is to protect individual liberty, they may give insufficient attention to the variables on the other side.’).
- 130.
Emerging Law. To date, Israel’s parliament has enacted the Unlawful Enemy Combatants Law, which addresses who may be detained during armed conflicts, but which lacks detail. The U.S. Congress has enacted several relevant statutes, including the Detainee Treatment Act of 2005 (effectively incorporating into law the Executive’s combatant status review tribunals) and the 2012 National Defense Authorization Act (incorporating into law the Executive’s claimed detention authority under the 2001 Authorization for Use of Military Force).
- 131.
Making an empirical assessment of the ‘right’ balance between liberty and security is virtually impossible. See, e.g., Goldsmith 2013, p. 193 (‘The optimal level of presidential constraint—in national security and other contexts—is elusive because it depends on ever-changing and sometimes unknowable facts (about, for example, the nature of the threat or the efficacy of particular counterterrorism policies), as well as contested normative judgments (about, for example, what the Constitution permits or what morality requires).’).
- 132.
See, e.g., Whitney v. Robertson, 124 U.S. 190 (1888); Hollis 2005, p. 48 (describing phenomenon in other states).
- 133.
Dinwoodie 2000, p. 501; Benvenisti and Downs 2009, pp. 72–73 (‘Pressure exerted on a certain government by its disapproving court can, in fact, result in greater bargaining leeway for that government, as it uses that pressure as an explanation of its inability to bow to the pressure of the foreign negotiators.’).
- 134.
For the goals and roles of these organizations, see http://www.fatf-gafi.org (FATF); and http://www.state.gov/t/isn/c10390.htm (PSI).
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Deeks, A. (2014). Domestic Humanitarian Law: Developing the Law of War in Domestic Courts. In: Jinks, D., Maogoto, J., Solomon, S. (eds) Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-008-4_5
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