Eric Talbot Jensen

Transnational Armed Conflict: A 'Principled' Approach to the Regulation of Counter-Terror Combat Operations

This article asserts that counter-terror military operations should be regulated by fundamental principles of the law of armed conflict. It builds on prior articles asserting an emerging category of transnational armed conflict: conflict between states and non-state groups outside the territory of the state. These prior articles have explained why such a category of armed conflict must be recognized and how the nature of the authority invoked by a state in the conduct of such operations reveals the existence of such armed conflicts. This article focuses on the key law of armed conflict principles that should apply in such situations to regulate the application of combat power and the treatment of non-combatants. It acknowledges that this is only the first step in developing a body of regulatory norms applicable to such armed conflicts, but also points out the correlation between this proposed process and the development of the law applicable to internal armed conflicts.

The Obama Administration’s First Year and IHL: A Pragmatist Reclaims the High Ground

President Obama’s first year in office can be defined by two words: pragmatism and commitment. His pragmatism is reflected in the decision to continue to pursue the armed conflicts against transnational terrorism, and his refusal to abandon the legal and policy positions of his predecessor that lodge that struggle squarely within an armed conflict paradigm. His commitment is reflected both in his decision to continue the armed struggle against transnational terrorism, and in the actions he has taken to demonstrate US commitment to fundamental humanitarian principles of the law, and to abandon the policy of legal exceptionalism that defined his predecessor’s ‘authority without obligation’ interpretation of the law as it applied to this armed conflict. Any doubt about these dual pillars of his approach to transnational terrorism was eliminated when he delivered his Nobel acceptance speech. In that speech, he challenged the international community to accept the continuing need to meet the threat of transnational terrorism with military force. However, he also emphasized that maintaining the moral high ground in the conduct of hostilities – even when confronting an immoral opponent – is at the very core of the American military tradition.This essay will review what the authors consider the President’s most significant humanitarian law related decisions during his first year in office. It will focus on six major aspects of international humanitarian law: 1) the definition of enemy combatant; 2) detainee judicial review; 3) military commissions; 4) self help measures in self-defense; 5) fundamental guarantees under customary international law; and 6) the US position vis a vis the International Criminal Court.