Why the LOAC is so important

Posted: May 11, 2015 by Travis Normand in LOAC

by Travis Normand

This article appeared in The Jerusalem Post on 5 May 2015.  The first paragraph includes a quote by Israel’s Defense Minister Moshe Ya’alon that captures one of the many reasons why it is so important for us to have, and follow, the law of armed conflict.

After all the controversy and war crimes allegations following last summer’s Gaza war, Defense Minister Moshe Ya’alon said Tuesday that “I can still look at myself in the mirror.”

Ya’alon was speaking at a Shurat Hadin – Israel Law Center conference in Jerusalem, where he addressed the hot-button issues of lawfare, the Boycott, Divestment and Sanctions campaign, and general efforts to delegitimize Israel.

Following the LOAC allows those who engage in combat (whether it be soldiers, commanders, administrators, and/or executives) to walk away from such armed conflicts knowing that they followed the law and that they did the right thing.

Congressional Research Service: Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings


September 9, 2014

(7-5700 www.crs.gov R41156)

New from the ICRC

Posted: May 4, 2015 by Travis Normand in ICRC

by Travis Normand

Two new features on the ICRC’s website.

While “How Does Law Protect in War? Online” contains a wealth of resources, references and cases supporting IHL teaching and is mainly aimed at academics, researchers and students, the “Online Training Centre” features e-learning modules on key principles of humanitarian law in eight steps, as well as two modules on the protection of the medical mission available free of charge to those seeking to develop their knowledge of IHL.

These two learning platforms are part of the ICRC’s efforts to revolutionize the way IHL is being taught and promoted. Indeed, humanitarian law is now more accessible and engaging than ever. In addition, these two platforms will be regularly updated. While new case studies allowing professors to ground their teaching in contemporary practice will be added each month to the platform, new modules will also be designed for the Online Training Centre, such as two foreseen modules on sexual violence in armed conflicts and on fundamental humanitarian principles.

By Jessica Poarch Hernandez

This morning a panel of intelligence experts released “Recommendations and Report of The Task Force on US Drone Policy” which reviews the risk and benefits of current US drone policy.

The panel made the following eight recomendations:

  1. Conduct a rigorous strategic review and cost-benefit analysis of the role of lethal UAVs in targeted counterterrorism strikes to evaluate the impact of past UAV strikes on terrorist organizations, affected communities, public opinion, litigation, defense policy and government cooperation with allies and partner nations.
  2. Improve transparency in targeted UAV strikes: as a general principle, the United States should acknowledge the use of lethal force in foreign countries both to Congress and to the American public. While secrecy may be required before and during each strike, strikes generally should be acknowledged by the United States after the fact. The president should publicly release information on: the approximate number and general location of targeted UAV strikes; the number of individuals known to have been killed and their organizational affiliations; the number and identities of any civilians known to be killed, and the approximate number of strikes carried out by the military versus the CIA. The president should also order the preparation and public release of a detailed report explaining the legal basis under domestic and international law for the United States conducting targeted killings.
  3. Transfer general responsibility for carrying out lethal UAV strikes from the CIA to the military. While rare exceptions may be warranted, as a general principle, the military should be the entity responsible for the use of lethal force outside the United States, while the CIA should focus on intelligence collection and analysis.
  4. Develop more robust oversight and accountability mechanisms for targeted strikes outside of traditional battlefields. The president should, by executive order, create a nonpartisan, independent commission to review lethal UAV policy. Members of this independent commission should be selected with a view to ensuring credibility and diversity of background. The commission should not be directly involved in the pre-strike approval process, but should be tasked with reviewing the overall policy and approval process for the use of lethal UAV strikes (both military and CIA); unclassified versions of the commission’s reports to the president and Congress should be released publicly. Read the rest of this entry »

by Travis Normand

Normandy - June 6, 1944

June 6, 2014 – It has been seventy years since June 6, 1944.

No single day of World War II was more important in turning the tide against the Nazis.  Unfortunately, this came at great cost to American and Allied troops, as more than 4,400 servicemen died.

by Jessica Poarch Hernandez

On 16 August, Foreign Affairs posted an article by Martin Libicki entitled “Don’t Buy the Cyberhype: How to Prevent Cyberwars From Becoming Real Ones” which I think is an interesting counterpoint to some of the other articles considered on this blog. Essentially, the article argues that instead of spending time worrying about how to respond to Cyberattacks, we should spend time discouraging and finding ways to prevent them. The author points out that, “Although the risk of a debilitating cyberattack is real, the perception of that risk is far greater than it actually is. No person has ever died from a cyberattack, and only one alleged cyberattack has ever crippled a piece of critical infrastructure, causing a series of local power outages in Brazil. In fact, a major cyberattack of the kind intelligence officials fear has not taken place in the 21 years since the Internet became accessible to the public.” He then argues that the responding to cyberattacks, especially with conventional warfare, risks escalating the conflict to the point of a war which nobody wanted. He concludes that, “The United States can best mitigate the risks of cyberwar by adopting technical and political measures to discourage cyberattacks before they happen.”

The author’s  conclusion, in my mind, is logical and, should we take his approach,I believe it would be a good use of our time and resources but I question the wisdom of discounting the “cyberhype” altogether. Now is the time to prepare and determine the rules for responding to major cyberattacks, both by cyber-means and kinetic means. If the unlikely happens we should have a response on hand that has been reasoned out before hand and prevents an unnecessary waste of time or resources. 

by Travis Normand

Bradley Manning guilty of espionage charges but acquitted of ‘aiding enemy’

See The Guardian’s (theguardian.com) live blog here.

by Travis Normand

United States v. Jeffrey Sterling, . . . (4th Cir. 2013).

In its prosecution of Jeffrey Sterling, a former CIA employee accused of divulging classified information about the agency’s efforts to disrupt the Iranian nuclear program, the government subpoenaed James Risen.  Risen, a reporter for the New York Times, published stories that were apparently based on information fed to him by Mr. Sterling.  Risen essentially argued that he could refuse to testify and that he was protected by some form of reporter’s privilege.  However, in a 2-to-1 opinion released July 19, 2013, the  U.S. Court of Appeals for the Fourth Circuit held that Risen could not refuse to testify and that there is no First Amendment or federal common-law privilege protection available to him as a reporter.

The dissent listed many state law testimonial privileges that apply to reporters.

See the entire opinion HERE.

by Jessica Poarch Hernandez 

Debate over the future of the AUMF is surfacing in both public and private arenas. Recently, NPR and The Wilson Center hosted a panel discussion entitled “AUMF: Reasserting the Role of Congress” which featured Senator Bob Corker, Sarah Chayes, and Neal Katyal. The discussion, as the name implies, focused not on the constitutionality of the AUMF but on the balance of power associated with it. In fact, in her opening remarks, Jane Harman, the CEO of The Wilson Center, reminded the crowd that war powers are divided. Questions such as, “Is the AUMF necessary for the President to act,” “Is the AUMF too broad,” and “If the AUMF needs to be revised what needs to be replaced” were taken up.

There was not much of a debate, however. Ms. Chayes described it best when she told the audience that they had come for a heated panel and instead got a chorus. All of the panelist seemed to agree that the war powers, post-AUMF, are not being appropriately balanced between the Executive and Legislative branches and together called for Congress to take more “ownership” of the conflicts we are in. Where there was some disagreement was in the question of whether or not to revise or just completely repeal the AUMF. One suggestion that I found interesting was Senator Corker’s suggestion that the next AUMF be structured on a tier system that would give the President authority to act alone in certain instances but require him to get Congressional approval in others. This seems to directly track Jackson’s conception of Presidential Power in Youngstown which assessed the President’s power based on the actions of Congress. This was not the only solution offered by the panel. In any event, regardless of the chosen solution, the panel’s conclusion remains paramount – Congress must act.

Overall I found this discussion to be a refreshing and practical discourse on a complicated issue.

Listen to the discussion here. 

[Pod-Cast] The Torch: Cybersecurity

Posted: July 13, 2013 by Jessica Poarch in Cybersecurity
Tags: , , ,

by Jessica Poarch Hernandez

The Great Courses recently published a pod-cast which begins with a discussion of Cybersecurity calling it “the hidden war that threatens almost every household”. The discussion is wide-ranging and spans from defining ‘cyber’ to addressing why the internet is so vulnerable to hackers.

The pod-cast concludes by asking what the speaker calls the biggest policy question: How is the international community going to regulate the internet.

Listen here.