Oren Gross

Torture and an Ethics of Responsibility

May torture ever be morally or legally justified or excused? This article argues that an absolute legal ban on torture ought to be maintained. However, in truly catastrophic cases the appropriate method of tackling extremely grave national dangers and threats may call for going outside the legal order. The way to deal with the “extreme” or “catastrophic” case is neither by ignoring it nor by using it as the center-piece for establishing general, ex ante, policies. Rather, the focus is on the possibility that truly exceptional cases may give rise to official disobedience: Public officials may act extralegally and be ready to accept the legal ramifications of their actions.

A Skeptical View of Deference to the Executive in Times of Crisis

In times of crisis there is an unmistakable tendency to augment and extend the powers of the executive branch. This centralizing tendency has been exhibited in numerous legal systems and through varied kinds of crisis. More recently, similar trends have been much in evidence in the United States, and a corresponding academic discourse defending and extolling the virtues of such augmentation has emerged. This Article is skeptical of the virtues of such advice and its ultimate policy benefits. We assert that there are substantial dangers to the centralization of crisis powers in times of emergency. These tendencies hold particular perils for the democratic state. Moreover, the rush to create or cement decision and review making hierarchies can be antithetical to the project of utilizing the strengths of rule of law based societies to respond to the challenges posed by violent actors. The purported benefits of excluding, or at best sidelining, the courts from review of executive actions of crisis regulation are particularly illconceived. Such proposals consistently fail to engage with the importance of across-the-board institutional legal engagement with state action in times of crisis. The success and value of such engagement cannot be measured from the crisis vantage point. Rather it requires an assessment beyond the moment of exception, factoring in a return to normalcy and the impact on law and legal institutions in the post-crisis phase. We assert that scholars advocating for exclusive executive supremacy in times of crisis fail to measure the harms that may be caused by inept or illegal state action, not only as experienced by individual victims but to the broader project of discouraging and dissuading the resort to group based violence.

Stability and Flexibility: A Dicey Business

A significant part of the life of the law has been attempts to balance the competing values of stability and flexibility. Emergencies present the challenge of enabling government to confront the crisis by, if necessary, using special emergency powers and greater flexibility of operation while, at the same time, ensuring that such powers and flexibility do not get out of control and enable government to impose long-term limitations on individual rights and liberties or modify the nature of the relevant constitutional regime. The paper focuses on A.V. Diceys treatment of the challenge of balancing stability and flexibility in the context of grave crises. Prof. David Dyzenhaus of the University of Toronto Faculty of Law has recently suggested that Dicey distinguishes between two legal responses to an emergency situation. In the first, the response is the after-the-fact recognition that officials made an excusable decision to act outside of the law because it was necessary that they act and the law, did not provide them with the resources they needed. In the second, Parliament in advance gives to officials resources to deal with emergencies in accordance with the rule of law. Dyzenhaus argues that Dicey prefers the second option and himself takes a similar position. The paper argues that while Dicey does present two ways of responding to emergency situations, he sees them as complementary, allowing the use of one when the other may be unavailable or undesirable. The paper goes on to tie Diceys analysis with John Lockes theory of the prerogative, suggesting that Dicey answers a significant problem with Lockes theory. The article goes on to focus on a closer examination of the ex post ratification component of what I called elsewhere the Extra-Legal Measures model for dealing with emergency powers. Again, the paper does so by using Diceys discussion of the Act of Indemnity, which is a particular case of ex post ratification. The paper seeks to demonstrate that the critique of the Extra-Legal Measures model as placing public officials in a legal black hole . . . a zone uncontrolled by law misses some of the essential components of the model. Particularly, it misses the fact that, as Dicey puts it, the relief to be obtained [from Acts of Indemnity] is prospective and uncertain. Until the extralegal action is ratified ex post, and potentially even after it is so ratified, the acting public official does not know what the personal consequences of violating the rule are going to be. The more uncertain it is that ratification will be forthcoming, the more uncertain its potential scope, and the greater the personal risk involved in wrongly interpreting either of those is, the greater the incentive for individual actors to conform their action to the existing legal rules and norms and not risk acting outside them.

Applying the Extra-Legal Measures Model to Humanitarian Interventions: A Reply to Devon Whittle

In �The Limits of Legality and the United Nations Security Council: Applying the Extra-Legal Measures Model to Chapter VII Action�, Devon Whittle analogizes the United Nations Security Council�s Chapter VII powers to domestic emergency powers. He then seeks to apply the extra-legal measures (ELM) model of emergency powers, which I developed some 20 years ago, to exercise by the Council of its Chapter VII powers. This brief comment seeks to expand the discussion of ELM in international affairs beyond the collective security system by exploring the application of ELM in the setting of unilateral humanitarian intervention.

Exceptional Courts in Counterterrorism

The Military Commissions scheme established by President George W. Bush in November 2001 has garnered considerable national and international controversy. In parallel with the detention facilities at Guantanamo Bay, Cuba, the creation of military courts has focused significant global attention on the use of such courts as a mechanism to process and try persons suspected of committing terrorist acts or offenses during armed conflict. This book brings together the viewpoints of leading scholars and policy makers on the topic of exceptional courts and military commissions with a series of unique contributions setting out the current “state of the field.” The book assesses the relationship between such courts and other intersecting and overlapping legal arenas including constitutional law, international law, international human rights law, and international humanitarian law.

Law in Times of Crisis: Models of accommodation

The discourse concerning emergency regimes in democratic societies has almost invariably been governed by models that may be grouped together under a general category that we call “models of accommodation.” All those models countenance a certain degree of accommodation for the pressures exerted on the state in times of emergency, while, at the same time, maintaining normal legal principles and rules as much as possible. According to the models of accommodation, when a nation is faced with emergencies its legal, and even constitutional, structure must be somewhat relaxed (and perhaps even suspended in parts). This compromise, it is suggested, enables continued adherence to the principle of the rule of law and faithfulness to fundamental democratic values, while providing the state with adequate measures to withstand the storm wrought by the crisis. Classical models of accommodation The Roman dictatorship The institution of the Roman dictatorship is the prototype for all modern forms of models of accommodation. The Romans introduced a system in which an emergency institution was a recognized and regular instrument of government built into a constitutional framework. This institution was hailed by Niccolo Machiavelli as one that “deserves to be considered and numbered among those that were the cause of the greatness of so great an empire.”