Dr Andresen’s research focuses on legal and ethical questions raised by contemporary armed conflict and counterterrorism operations. Among the questions Dr Andresen’s work engages are how the laws of armed conflict should be reconfigured for military operations today; under what circumstances International Human Rights Law, rather than International Humanitarian Law, should govern counterterrorism operations; why civilian casualties in war are justified; whether “the good guys” can win within the confines of the law of armed conflict today; and whether procedural and justiciability barriers should prevent judicial review of military activity in U.S. courts.
International Humanitarian Law, Criminal Law
Director of Internationalisation
Contrary to the prevailing view that drones spare civilian lives, this paper argues that drones actually place more civilians at risk. The reason is simple: drones are used outside areas of active hostilities in civilian populated areas where no other weapon could be used. The oft-repeated mantra that drones are more precise and less destructive and therefore spare more civilian lives rests on a false comparison. Many commentators wrongly assume that if we were not using drones, we would be using some less precise and more destructive alternative, such as cruise missiles. Apart from the difficulties in deploying cruise missiles covertly and their inability to strike with drone accuracy, cruise missile strikes in civilian populated areas would almost certainly violate the laws of distinction and proportionality and, even if technically legal, would be politically unpalatable. Drones thus put lethal force on the table where it would otherwise be absent and they highlight the lack of law designed to regulate their use. Because the law of armed conflict was developed for active war zones, it is inadequate to govern drone strikes in areas away from active hostilities. As a result, the laws of distinction and proportionality, which govern the use of lethal military force, must be reformulated for drone strikes. Rather than focusing solely on the commander’s intent to target enemy combatants, distinction should require a functional analysis of the geographic area to be destroyed by a strike—the death zone. Where the death zone by its nature, location, purpose or use is substantially a civilian object, such as an outdoor market or a civilian apartment building, the death zone as a whole should be deemed a civilian object, regardless of the presence of an otherwise valid military objective, such as an enemy militant. Once a target satisfies distinction, our assessment of proportionality should take into account not only the civilian casualties likely to result from the strike, but also the strategic costs and negative secondary effects of deploying aerial strikes in civilian areas.
The U.S. military’s admission of error in its bombing of the Médicins Sans Frontières facility in Kunduz, Afghanistan shows that transparency can work to our national security interest, that a judicial check on military uses of force is feasible, and that relief for those harmed by unlawful military attacks should be available
The debate over how to properly rein in the errors and abuses of the drone program remains stalled between two ineffective and constitutionally problematic extremes. While some have defended Executive unilateralism and others have called for an ex ante Drone Court, this Note defends ex post judicial review as the only constitutional and effective way to restore our constitutional balance of powers and the rule of law. The Note first shows how plaintiffs can bring a case that runs the gauntlet of procedural and justiciability challenges to actually reach a merits review. It then shows how judges should apply the international law of war to adjudicate the lawfulness of drone strikes. Adjudicating the legality of drone strikes for their compliance with the international law of war is an eminently legal task that our courts should feel compelled to carry out. Adherence to the rule of law, our constitutional separation of powers, and our national security interests all speak for ex post judicial review of drone strikes.
Contrary to the common claim that jus in bello proportionality is an obscure and intractable principle of modern warfare, this paper shows that proportionality balancing has a central role to play in assuring efficient military operations with a minimum number of casualties. Military commanders can and should want to understand proportionality as a requirement to measure military advantage in terms of lives saved and direct their operations toward the most life-saving operations. The targeted killing context in particular highlights the advantage of making proportionality analysis a central component of military strategy in asymmetrical conflicts.
This chapter shows that attempts to liberalize restrictions on the use of force outside active war zones should be rejected not only on legal grounds, but also as contrary to our national security interest. An increasing number of empirical studies show that more force, particularly in the form of airstrikes, increases terrorist violence and recruitment while increasing popular support for terrorist groups. A restrictive approach to the law governing the use of force against terrorist threats is thus the most effective way to address the reality of those threats. Contrary to the view that international humanitarian law (IHL) is the only source of restrictions on the use of force in counterterrorism operations, the chapter argues that international human rights law (IHRL) can impose additional restrictions on the use of force, particularly when force is used in civilian populated areas away from active combat. Following the jurisprudence of international courts on the application of IHL and IHRL to armed conflict, the chapter puts forward seven factors that should be analyzed to determine the relative application of IHL and IHRL to the use of force in counterterrorism operations. A determination of whether a target is a legitimate military objective is just the first step in determining what kind of force may be used. It is also necessary to consider the circumstances in which force will be used and the reliability of the information on which a strike is predicated to determine what law properly governs the operation.
Depuis que John Locke a identifié sensation et reflection comme les deux sources de nos contenus mentaux, l'expérience et la réflexion sont devenues les mots-clés de l'explication philosophique de l'esprit. Depuis, l'exacte compréhension de ces deux facultés et de leur rapport a fait l'objet d'un conflit philosophique. Kant, Hume et Hegel l'ont d'ailleurs largement critiqué. Le problème du rapport de l'expérience et de la réflexivité est l'objet de presque toutes les traditions contemporaines significatives. (Articles en français, en anglais et en allemand).
My background paper for Special Rapporteur, Ben Emmerson, shows that using drones for targeted killing runs a heightened risk of civilian casualties because of the radically asymmetrical context in which drones operate. The heightened risk of civilian casualties together with the advanced capacity to avoid them places a very high ethical burden on those who would employ drones for targeted killing. Due to the circumstances and risks attendant to targeted killing with drones, armed forces using drones away from “hot battlefields” should commit to a zero-tolerance policy for civilian death.
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Page Created: Wednesday 2 August 2017 15:21:45 by pj0010
Last Modified: Wednesday 18 October 2017 13:25:05 by pj0010
Expiry Date: Friday 2 November 2018 15:20:53
Assembly date: Sat Dec 16 00:58:30 GMT 2017
Content ID: 171181