Law in a Time of Emergency

SSRN Electronic Journal, 2003

INTERNATIONAL SPECTATOR, 2002

Routledge Handbook of Law and Terrorism, 2015

Canadian Journal of Political Science/Revue canadienne de science politique, 2007

This page intentionally left blank THE CONSTITUTION OF LAW Professor Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial decisions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-oflaw project is one in which judges play an important role, but which also requires the participation of the legislature and the executive.

University of Pennsylvania Law Review, 2004

, U.S. Army (ret.), Virginia Law '05, for providing exceptionally high caliber research assistance for this article. I am also grateful to participants in a University of Virginia faculty workshop for extremely helpful comments. I owe particular thanks to Peter Brooks, Dave Martin, and Paul Stephan. Thanks are also due to Jane Stromseth and David Wippman, and to the participants in a May 2004 roundtable on International Humanitarian Law and the Challenge of Terrorism, sponsored jointly by the Open Society Institute and the Notre Dame Center for Civil and Human Rights. 5 1 W.H. AUDEN, Law like Love, in COLLECTED POEMS 262, 263 (Edward Mendelson ed., 1991). 2 There is some debate about the most appropriate term for the body of customary and treaty-based law that deals with armed conflict, but throughout this Article I use the phrase the "law of armed conflict" as the most inclusive and widely accepted term. The "law of war" and "international humanitarian law" are both often used interchangeably with the "law of armed conflict," but at times I use each of these terms in a narrower sense. 3 The law of armed conflict is "lex specialis," applying only to situations of armed conflict, but trumping other legal regimes during periods of armed conflict. 4 See, e.g., Ruti G. Teitel, Humanity's Law: Rule of Law for the New Global Politics, 35 CORNELL INT'L L.J. 355, 375 (2002) (asserting that "the law of war limits state action in periods of conflict and human rights law limits state behavior in periods of peace" (footnote omitted)). 5 See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 786-87 (1950) (holding that the courts have no power of judicial review over decisions of military tribunals adjudicating the offenses of enemy aliens during wartime); United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 318 (1936) (vesting the federal government with the power necessary "to maintain an effective control of international relations"); see also WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME 222 (1998) ("In any civilized society the most important task is achieving a proper balance between freedom and order. In wartime, reason and history both suggest that this balance shifts to some degree in favor of order-.. . the government's ability to deal with conditions that threaten the national well-being.").

Constellations, 2002

2006

Version prepared for the Yale Legal Theory Workshop, 21 September 2006. This paper is actually a long abstract of a book I am writing by the same name. As a result, you will see many references to "the book" throughout-which is meant to be the larger work with this same general shape. In addition, because this is only a summary of a long and detailed argument, the usual dense apparatus of footnotes and references is substantially thinned here. If you want to see particular chapters or arguments in elaboration, let me know. I have published some pieces of the book already and have indicated in this narrative outline where chapters have been drawn from already published work. Comments, criticisms and questions are most welcome as the book is still under construction.

ILSA Journal of International and Comparative Law, 2006

In 1961, the Supreme Court of the United States held in Mapp v. Ohio' that the Fourteenth Amendment to the United States Constitution required imposition of the exclusionary rule for evidence improperly seized by State officials. In that case, the Court emphasized the significance of compliance with basic principles of legality when it noted "[N]othing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." 2 Although this case had nothing to do with the legal regulation of military operations, the concept expressed by the Court is, in the opinion of this author, at the core of the issues addressed by the Panel on which I participated at the recent International Law Weekend. This Panel was called upon to address the sufficiency of international humanitarian law to deal with the treatment of individuals detained during the War on terror, and whether the application of international human rights norms was essential to regulate such activities. Like the issue confronted by the Supreme Court in Mapp, the legal regulation of military operations related to the War on terror provides a *

This Article aims to evaluate the international legal perspectives attendant to U.S. counter-terrorism measures and policy and the attendant strictures and implications. Part II commences by grappling with the uneasy relationship that legal and political complexities have foisted on the UN's ability to address terrorism and the difficult issue of the definition of terrorism. Within the context of this part, the Article also addresses the two dominant counter-terrorism paradigms' law enforcement and conflict management. Part III moves on to evaluate the law enforcement paradigm which treats terrorism as a crime engaging domestic law enforcement. The part offers a discussion of the 'extradite or prosecute' mechanism that lies at the heart of multilateral anti-terrorism conventions and a discussion of the bases of international criminal jurisdiction that provide a framework for domestic anti-terrorism statutes. It concludes with an analysis of the practice of apprehension of terrorists in international space, of which the U.S. has been a leading proponent, and offers a discussion of the complex legalities attendant to this controversial means. In Part IV, the article tackles the complexities and technicalities of the conflict management paradigm. It commences by examining the international legal uncertainties inherent in treating terrorists as combatants. The analysis moves on to cover the use of both limited lethal military force in the form of targeted assassinations and large scale military force in the form of pre-emptive strikes and retaliation. In a bid to highlight the transformation from the Cold War era to the post Cold War era, the part focuses on U.S. practice and world reaction both pre- and post-Cold War. The part concludes with an examination of the post-September 11 scenario and evaluates whether any perceptible changes in law or state practice are taking place following the military campaigns in Afghanistan ('Operation Enduring Freedom') and Iraq ('Operation Freedom Iraq').