Geoffrey S. Corn

Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict

One of the most complex contemporary debates related to the regulation of armed conflict is the relationship between international humanitarian law (or the law of armed conflict) and international human rights law. Since human rights experts first began advocating for the complimentary application of these two bodies of law, there has been a steady march of human rights application into an area formerly subject to the exclusive law of armed conflict regulation. While the legal aspects of this debate are both complex and fascinating, like all areas of conflict regulation the outcome must ultimately produce guidelines that can be translated into an effective operational framework for war-fighters. In an era of an already complex and often confused battle space, there can be little tolerance for adding complexity and confusion to the rules that war-fighters must apply in the execution of their missions. Instead, clarity is essential to aid them in navigating this complexity. This article will explore this debate from a military operational perspective. It asserts the invalidity of extreme views in this complementarity debate, and that the inevitable invocation of human rights obligations in the context of armed conflict necessitates a careful assessment of where symmetry between these two sources of law is operationally logical and where that logic dissipates. While acknowledging a legitimate role for human rights norms in relation to the treatment of noncombatants and subdued opposition personnel, I argue that these norms cannot be permitted to influence the legal framework that regulates the application of combat power against operational opponents. Preventing this intrusion is essential to balance the interest of protecting human rights with the fundamental purpose of armed hostilities – securing the prompt and efficient submission of an opponent. Perhaps the most critical premise of this article is that failing to recognize the existence of this boundary will produce a distortion of this historic authority/restraint balance at the core of the law of armed conflict – a distortion that will inevitably be perceived as operationally illogical by armed forces thereby risking the credibility of both bodies of law.

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.

Imputed Liability for Supervising Prosecutors: Applying the Military Doctrine of Command Responsibility to Reduce Prosecutorial Misconduct

Lawyers often refer to criminal litigation as a war between competing adversaries. Yet, one of the central tenets of the law of war – the doctrine of command responsibility – has not been applied to criminal litigation. Under the doctrine of command responsibility, military commanders are held responsible for the misconduct of their subordinates that they knew or should have known would occur. The purpose of the command responsibility doctrine is to ensure that supervisors develop an atmosphere of compliance by training subordinates to avoid misconduct. This article applies the doctrine of command responsibility to civilian prosecutors holding supervisory positions. We argue that instances of prosecutorial misconduct can be reduced by imputing liability to supervising prosecutors who fail to create a culture of ethical compliance and therefore should have known that misconduct could occur.

Targeting, Distinction and the Long War: Guarding Against Conflation of Cause and Responsibility

This Article examines the broader question of how illicit enemy tactics impact the implementation of fundamental LOAC/IHL targeting obligations. In addressing these challenging questions, focus is placed on distinction obligations, lawful target engagement, and the practical realities of conflict against hybrid enemies. This Article begins by summarizing the distinction obligation, emphasizing both its “positive” and “passive” components. This passive element is often overlooked, yet it is tightly woven into the fabric of LOAC/IHL targeting law. Emphasis on the positive obligation without consideration of the passive obligation distorts the logic of the law itself. Consideration is also placed on the threat-identification challenge of hybrid warfare, how urban warfare exacerbates this challenge, and the enemy tactics designed to exploit the distinction obligation to gain a tactical and strategic advantage. The permissible and impermissible consequences of such enemy tactics are explored, and explanation is provided as to why it is impermissible and counter-productive to treat such tactics as a justification for ignoring the distinction obligation. This Article proposes that these tactics form part of the totality of the circumstances related to lawful attack judgments, and therefore, must logically dilute the weight of the civilian presumption. The Article concludes by explaining how failing to acknowledge this dilution imposes an unfair burden on lawful belligerents, grants the hybrid enemy an unjustified windfall, and distorts the assessment of overall operational legality.

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.