If War Is Everywhere, Then Must the Law Be Nowhere?

This response focuses on one of the most difficult questions posed by Rosa Brooks\u27s How Everything Became War and the Military Became Everything: How should the erosion of the war / peace dichotomy impact the justifications for the use of lethal force by the United States government and what, if any, role is there for law in this context? While Brooks is unambiguously critical of Bush administration legal policies that asserted expansive executive war powers, she is less certain about the Obama administration\u27s own reliance on the war paradigm to justify its targeted killing policies. While describing these policies as “undermining the international rule of law,” Brooks declines to take a firm stance on whether they are lawful or unlawful, and she rejects the views of critics who would “jam war back into its old box.” It is a credit to Brooks that she is willing to acknowledge such ambivalence, but her approach comes at a cost. It is difficult to maintain a critical stance on governmental policy while simultaneously undermining the very legal foundations that most plausibly support that stance. In this way, critique quickly turns into apology

Targeted Capture

This Article confronts one of the most difficult and contested questions in the debate about targeted killing that has raged in academic and policy circles over the last decade. Suppose that, in wartime, the target of a military strike may readily be neutralized through nonlethal means such as capture. Do the attacking forces have an obligation to pursue that nonlethal alternative? The Article defends the duty to employ less restrictive means (“LRM”) in wartime, and it advances several novel arguments in defense of that obligation. In contrast to those who look to external restraints--such as those imposed by international human rights law, U.S. constitutional law, or, indeed, the laws of war themselves--to check the operation of military necessity, I argue that the most plausible LRM obligation exists as a limitation embedded within the necessity principle itself. Indeed, the principle of military necessity supports not one, but two, related LRM restraints. The first restraint--virtually ignored yet highly relevant to contemporary debates--is a right reason requirement: it prohibits the killing of combatants for reasons unrelated to the pursuit of military advantage. Specifically, the necessity principle does not permit a preference for lethal force over capture when that preference is driven by considerations such as retributive justice, a desire to avoid due process obligations relating to capture and trial, raising morale, and diplomatic sensitivities. The second restraint--more familiar to the debate yet still deserving of further exploration--is objective in nature. It demands that lethal force benefit from a cognizable expectation of military advantage. The Article develops and defends these claims, engages both contrary and complementary viewpoints, and anticipates objections

The Pluralism of International Criminal Law

This Article develops a pluralistic account of substantive international criminal law (ICL). Challenging the dominant assumption among theorists and practitioners, it argues that the search for consistency and uniformity in ICL is misguided, that the law applicable to international crimes should not be the same in all cases, and that those guilty of like crimes should not always receive like sentences. In lieu of a one-size-fits-all criminal law, this Article proposes a four-tiered model of ICL that takes seriously the national laws of the state or states that, under normal circumstances, would be expected to assert jurisdiction over a case. After briefly surveying historical complexities concerning the definition and scope of ICL, the Article focuses on standard justifications for the existence of ICL. It looks in particular to justifications rooted in international relations, gravity considerations, and enforcement concerns. While each account provides powerful reasons for seeking uniformity with respect to some components of ICL, neither in isolation nor in combination do these rationales demand uniformity with respect to the entire content of ICL. In particular, these standard theories have difficulty explaining why ICL should seek to monopolize those aspects of criminal responsibility that speak more to the general nature of criminality than to any specific goal of ICL. A review of general rule-of-law values-including the values of consistency, legality, administration, normative development, and avoiding jurisdictional chaos-yields similar results, affirming that contingent domestic law has a vital role to play in ICL prosecutions. The Article next undertakes a case study of the Erdemovic decision, in which the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (JCTY) announced a new rule of ICL rejecting duress as a complete defense to murder. A close reading of the tribunal\u27s reasoning reveals that the ICTY would have done better to apply Bosnian law considering the Court\u27s inability to articulate why the special context or purpose of ICL requires a specific result, the normative shortcomings of both the majority and dissent\u27s positions, and the availability of a suitable approach under domestic law. The Article then elaborates upon this analysis to set forth a four-tiered model of substantive ICL comprising: (1) truly universal principles of ICL, (2) tribunal-specific rules, (3) rules constraining the acceptable range of domestic discretion, and (4) default rules. While this model has powerful normative force, it also provides a coherent and superior framework for understanding the actual content of ICL in its current state of development

Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation

From its initial codification in the 1948 Convention on the Prevention and Punishment of Genocide to its most recent inclusion in the Rome Statute of the International Criminal Court, the international crime of genocide has been defined as involving an intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. The predominant interpetation of this language views genocide as a crime of specific or special intent, in which the perpetrator deliberately seeks the whole or partial destruction of a protected group. This Note pursues an alternate approach. Relying on both the history of the Genocide Convention and on a substantive critique of the specific intent interpretation, it argues that, in defined situations, principal culpability for genocide should extend to those who may personally lack a specfic genocidal purpose, but who commit genocidal acts while understanding the destructive consequences of their actions

Advancing Fundamental Principles Through Doctrine and Practice: Comments on Darryl Robinson, Justice in Extreme Cases

I am honored to comment on Darryl Robinson\u27s terrific new book which makes an extraordinary contribution to the literature on international criminal law (ICL). Already an admirer of Robinson\u27s work, I learned a lot from reading his book and find his approach convincing. Broadly speaking, there is not much, if anything, on which I disagree with Robinson. I share his criticisms of international criminal tribunal reasoning. I welcome the call for greater attention to deontic considerations. I agree on the importance of the fundamental principles that Robinson identifies, and I also agree that justifying these principles does not require consensus on moral foundations. At the same time, his analysis raises complex questions about the interpretation, application, and practical significance of these fundamental principles for a project focused on the reform of ICL. It is these questions that are the focus of my comments. One of the great contributions of Robinson\u27s book is the attention he devotes to justifying and defending fundamental principles that are often taken for granted or treated casually. Robinson makes a compelling case that international tribunal case law must take greater account of deontic considerations, and the jurisprudence would benefit from a careful reading of Robinson\u27s work. A more difficult question concerns the practical implications for doctrinal substance. Three complications, in particular, come to mind. One concerns the relationship between published judicial reasoning and the resulting doctrinal decisions. Another concerns the contested interpretation and understanding of the fundamental principles. The third concerns the limitations of formal doctrine as a vehicle to vindicate fundamental principles. I elaborate upon these concerns through consideration of three modes of individual responsibility that have proven controversial in ICL: joint criminal enterprise (JCE), aiding and abetting, and command responsibility. Robinson himself devotes substantial attention only to the third of these doctrines, but all three raise problems that benefit from the framework that Robinson provides. Hence, my purpose in discussing JCE and aiding and abetting alongside command responsibility is not primarily to debate Robinson\u27s own conclusions about those topics but instead to consider the implications of his broader approach for some of the most contested questions of substantive ICL

Non-Destructive Evaluation of Corrosion on Insulated Pipe using Double Wall Radiographic Technique

The research explored the Double Wall Radiographic inspection technique using Ir-192 for evaluating deposits and corrosion attacks across the inner and outer walls of an insulated steel pipe .The experiment was performed on a designed test piece to simulate corrosion attacks and deposits on industrial pipes. From the relationship curve drawn between the radiographic film density and the thickness of the pipe, the attenuation coefficient of the insulating material was negligible compared to the concrete deposit. The Double Wall Technique (DWT) had a maximum underestimation of 1.3% of the corroded surface area of the pipe and was within an accuracy of ± 0.29. This tolerance limit is 5% less than the wall thickness of the pipe. From the results obtained, effective corrosion monitoring of insulated pipes can reliably be executed by the DWT without the costly removal of insulation material. Keywords: Double Wall Radiography, Corrosion, Insulated Pipe, Ir-192, Attenuation Coefficient

Beyond War: Bin Laden, Escobar, and the Justification of Targeted Killing

Using the May 2011 killing of Osama bin Laden as a case study, this Article contributes to the debate on targeted killing in two distinct ways, each of which has the result of downplaying the centrality of international humanitarian law (IHL) as the decisive source of justification for targeted killings. First, we argue that the IHL rules governing the killing of combatants in wartime should be understood to apply more strictly in cases involving the targeting of single individuals, particularly when the targeting occurs against nonparadigmatic combatants outside the traditional battlefield. As applied to the bin Laden killing, we argue that the best interpretation of IHL would have required the SEALs to capture bin Laden in conditions short of surrender, if he was in fact manifestly defenseless or otherwise could have been readily captured with little risk. Second, we take seriously the possibility that the law should tolerate some targeted killings under conditions that are justified neither by reference to IHL nor by reference to the traditional justifications available in peacetime. Drawing upon the example of Colombian crime family leader Pablo Escobar, who died in a police raid in 1993 in circumstances suggesting the authorities were not interested in capture, we suggest that targeted killings in these circumstances may be morally — if not legally — justified when (1) killing the targeted individual will protect society from a serious threat, (2) the individual is undeniably culpable for past atrocities, and (3) trying the individual is either logistically impossible or extraordinarily dangerous. Although we conclude that the bin Laden killing does not clearly satisfy the third criterion, this model nevertheless provides — in important ways — a superior framework for understanding public responses to bin Laden’s death than does the war paradigm

Foreign Assistance Complicity

When does a government’s provision of assistance to foreign armed groups cross the line from legitimate foreign policy to criminal aiding and abetting of those who use the aid to commit atrocities? The question presents one of the most difficult dilemmas in criminal justice, one that has deep normative implications and has provoked sharp splits among the U.S. federal courts and international tribunals that have faced it. In 2013, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) sent shockwaves through international legal circles when it acquitted former Yugoslav Army chief Momčilo Perišić of aiding and abetting atrocities in Bosnia and Herzegovina during the early 1990s. Influenced perhaps by contemporary examples such as U.S. support for Syrian rebels, the Tribunal ruled that “neutral” support to armed groups engaged in combat activities could not give rise to criminal responsibility absent evidence that the support was “specifically directed” toward the group’s unlawful activities. The aftermath of the ruling has produced widespread criticism, but little clarity on how the law should draw the line between legitimate foreign assistance on the one hand and criminal complicity on the other. Domestic legal systems take different approaches to complicity, and even at the international level the law depends very much on which tribunal—and even which particular judge—happens to be deciding a case. In this Article, I contribute to the debate over the foreign assistance cases by questioning two of its key premises. First, I challenge the pervasive assumption that the resolution of these cases can and should be determined by recourse to the kind of precedential analysis that has dominated judicial consideration of international aiding and abetting cases. As a descriptive matter, the case law is mistaken to maintain that the historical precedents reveal a consistent approach to aiding and abetting that evidences settled principles of customary international law. As a prescriptive matter, international tribunals’ reliance on precedent—however well-founded—is no substitute for the kind of normative analysis that is necessary to secure adequate protections against injustice. Second, I contest the assumption that the resolution of individual foreign assistance cases turns on the particular doctrinal choices that have divided judges and commentators. Analysis of the competing approaches to aiding and abetting reveals that there is less at stake in the choice of elements than is commonly supposed, because each approach leaves room for substantial flexibility in interpretation and application. Moreover, the most plausible understandings are also the least determinate, suggesting that the resolution of the foreign assistance cases must inevitably rely on complex moral judgments that resist easy encapsulation in the legal elements that have traditionally served to police the boundaries of criminal responsibility. The combined effect of these insights reveals an indeterminacy that is both inevitable and familiar to criminal law. I conclude by considering how courts might manage this indeterminacy in a way that renders the assignment of criminal responsibility sufficiently predictable while also maintaining a normatively meaningful distinction between guilt and innocence