Challenging and Refining the “Unwilling or Unable” Doctrine

My latest law review article has just been published: “Challenging and Refining the ‘Unwilling or Unable’ Doctrine,” 52 Vanderbilt Journal of Transnational Law 245 (2019). The abstract is as follows:

This Article challenges and proposes refinements to the “unwilling or unable” doctrine. Governments after 9/11 have invoked the doctrine to justify the use of force in self-defense against non-state actors (NSAs) operating within the territory of nonconsenting states. Responding to criticism that it lacked substance and a legal foundation, Daniel Bethlehem famously developed more detailed principles to embed the policy firmly in law, strike a balance between the interests of target states and territorial states, and bridge the gap between scholars and policy makers. His principles were embraced by governments as reflecting custom. The effort was laudable, but the principles fell short of their objective, and they create a risk of destabilizing the jus ad bellum regime.

This Article notes that the principles do not reflect custom, and it examines some of the ways in which they are inconsistent with the established understanding of the jus ad bellum regime. Specifically, they: lower the threshold for what constitutes an armed attack; eviscerate the temporal component from the concept of imminence, thereby destabilizing the core principle of necessity; improperly import the law of state responsibility into the jus ad bellum analysis; and undermine the independence of the international humanitarian law (IHL) and the jus ad bellum regimes. Finally, the principles do not provide sufficient guidance on how or by whom a range of key determinations are to be made, particularly regarding the “ability” or “unwillingness” of the territorial state. The principles lump all these determinations together, and suggest that they may all be made unilaterally by the target state, governed only by a single, low reasonableness standard. All of this weakens the constraints of the jus ad bellum regime more generally, thus raising the risk of inter-state war.

The Article takes seriously the operational imperatives in dealing with the threat posed by terrorist organizations, but proposes refinements to the principles to address each of these problems, so as to achieve greater consistency with established principles of the jus ad bellum regime. It develops new ideas on imminence, and drawing upon theories of self-judgment in international law, it disaggregates the decisions that have to be made and proposes differentiated standards to govern their execution and later assessment.

What are the Limits on Lawfare?

(Published on Opinio Juris, May 5, 2019)

Questions regarding the meaning, importance, and operation of “lawfare” were recently discussed at a great conference on Legal Resilience in an Era of Hybrid Threatsat the University of Exeter. Several speakers explained how lawfare is being used by adversaries of Western states, and urgently argued that “we” must ourselves engage in lawfare as part of a comprehensive response to such hybrid threats. Yet I was left thinking that not nearly enough attention is being paid to the importance of developing principled limits on the conduct of lawfare, and that it is dangerous to urge the practice of lawfare in the absence of such limits.

The Meaning and Scope of Lawfare

It was interesting to note that there is not even a clear consensus on the meaning of the term “lawfare.” Generally speaking, it is understood to mean the use of law, or exploitation of aspects of a legal system, to achieve tactical or strategic advantages in the context of conflict. As the sub-title of Orde Kittrie’s book on the subjectsuggests, lawfare is the use of “law as a weapon of war.”

Kittrie, speaking at the conference, cited human shields as a prime example. On the one hand, adversaries such as ISIS use human shields to deter attacks by exploiting Western compliance with principles IHL, and to reap public relations benefits in the event civilians are killed. On the other hand, in response there have been recent efforts by Western states to pass domestic legislation and pass resolutions within UN institutions to facilitate the prosecution of those who use human shields. Both of these are characterized as lawfare—the use of law as a means to further strategic ends in armed conflict. While the enemy’s use of it is nefarious, ours is benign. This all sounds well and good, but as I will return to below, that distinction can be blurred.

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What Role and Rules for Canada’s Armed Drones?

Published a short essay, “What Role and Rules for Canada’s Armed Drones,” in the Canadian Global Affairs Institute: Policy Perspectives, Dec. 23, 2018. Here is the abstract:

The Canadian government announced in June 2017 that it was planning to purchase and deploy armed drones. Yet to date it has provided virtually no information on how and for what purpose such armed drones would be used, beyond anodyne comments that they would be used like any other conventional weapon. However, conventional weapons have varying capabilities and purposes, and implicate international law in different ways as a result. Armed drones have been primarily used for the purpose of targeted killing, in ways that have raised significant legal questions and triggered claims of excessive civilian deaths. Canadians should be concerned about how, for what purpose, and according to what limitations the government plans to deploy armed drones. Other countries have provided greater transparency than Canada regarding the law and policy framework governing the use of armed drones. This short essay reviews how armed drones have been used elsewhere, explains the significant legal issues that are implicated by the different ways in which drones have been used and what that implies for the role of Canadian armed drones. It suggests that strict, clear and publicly disclosed limits be placed on drone use to ensure compliance with Canada’s international law obligations.

A Comparative Analysis of Constitutional Approaches to Hate Speech

hastings logoMy latest law review article has just been published: “Striking the Right Balance: Hate Speech Laws in Japan, the United States, and Canada,” 45 Hastings Constitutional Law Quarterly 455 (2018). The abstract is as follows:

Using the opportunity of Japan’s recent enactment of hate speech legislation, this article engages in a comparative examination of three different approaches to finding the right balance between legal limits on hate speech and the right to freedom of expression. The Japanese and American systems have struggled to find both a sufficiently important purpose to justify hate speech laws, or an appropriate limiting principle to narrow their scope. Neither system views hate speech laws as implicating equal protection rights, and so the balance is heavily in favor of freedom of speech. The American doctrine views hate speech laws as justifiable only if they can come within other ill-fitting categories of lesser-protected speech, which are mostly concerned with imminent violence rather than equality or discrimination. Japan has enacted hate speech laws too weak to impact freedom of expression at all.

The Canadian approach does not find the perfect equilibrium, but it suggests a better way to strike the balance. Drawing on this comparative review, the article argues that hate speech laws should be enacted with the object and purpose of fulfilling the constitutional guarantee of equal protection and equal treatment. Such laws would thus be narrowly drawn to prevent the fostering of hatred that would in turn lead to increased discrimination against identifiable groups, which are themselves defined in terms of the prohibited grounds of discrimination in the constitutional right to equality. The laws would address, and take seriously, the principal harms caused by hate speech — to the members of such groups, to the principles of equality, and to freedom of expression itself. But this objective also constitutes a compelling state interest, and a constitutionally informed basis for tailoring the hate speech laws narrowly, thus reducing to a justifiable minimum their impact on the right to freedom of expression. The right balance, then, is to be found in understanding and reconciling this tension between two constitutional rights.