Dr Joshua Andresen

The Article focuses on the impact of US sanctions on protected speech and association. The core argument is that US sanctions—directly and indirectly—restrict speech that should be protected by both the Constitution and statute, and chill a great deal more protected speech. The chilling effect of the economic sanctions administered by the US Treasury Department has been amplified by the categories of speech that are prohibited by the material support statute. I argue that neither OFAC’s enforcement discretion nor its licensing policy are adequate safety valves when it comes to securing constitutionally protected speech. Rather, important, but relatively low cost, reforms are needed, both to the material support statute and OFAC’s regulations and licensing process. The material support statute should be amended to include a requirement of specific intent to further the unlawful aims of a proscribed organization before criminal liability attaches. OFAC’s regulations should be amended to include explicit references to the Berman Amendment across all of its sanctions regimes, with clear examples of speech activities, such as organizing political dialogue or peace negotiations, that do not qualify as prohibited “services” even when they involve designated individuals or entities. Finally, OFAC’s licensing process should be reformed to fast-track requests for interpretive guidance and specific licenses when constitutionally protected speech and association is at stake.

Recent armed conflicts present a paradox. Military officials routinely claim that conflicts, such as the recent war against ISIS in Iraq and Syria, are the most precise in history. Yet thousands of civilians continue to be killed. This Article shows the reason so many civilians continue to be killed is that the law we have was never designed for modern warfare, in which states are heavily reliant on air power, and enemy combatants are not generally separate or readily distinguishable from civilians. This truth about the limits of the legal protections codified nearly fifty years ago in the Additional Protocols to the Geneva Conventions was explicitly and repeatedly recognized at the Protocols’ negotiating conference. Yet states have effectively blinded themselves to these limits and continue to apply the law as if it were adequate to the conditions in which we fight. This article seeks to remedy the legal blindness by asking - and answering - how the law should be constructed if we want to protect civilians, and do so while serving our strategic interests in eliminating enemy threats and establishing durable security.

The sanctions regimes employed by the United States are often painted with a broad brush as unlawful. Those who look a bit closer generally concede that US sanctions that apply on US territory and to US citizens are probably lawful. However, the conclusion usually follows that US sanctions with extraterritorial effect, and especially “secondary” sanctions that target, or at least encompass, foreign actors completely outside US jurisdiction, must surely be unlawful. Such arguments are generally based on appeals to principles of international law such as non-intervention, sovereignty, and jurisdiction. Few authors delve into actual US sanctions law and enforcement actions in any detail or depth. This chapter proposes to do precisely that by examining some of the main examples used to challenge the lawfulness of US sanctions, including BNP Paribas’ notorious $8.9 billion settlement with the US and direct challenges to the extraterritorial application of US secondary sanctions in the US case against Reza Zarrab. By closely examining US sanctions law and enforcement cases, the chapter argues that neither the principle of non-intervention nor the international law of jurisdiction is a persuasive basis for challenging the lawfulness of US secondary sanctions.

Despite what many saw as a d & eacute;tente in US-China relations as presidents Biden and Xi met at the G20 Summit in November 2022, both countries have continued to develop and deploy sanctions against one another. Among the most recent actions by the US is the continued use of export controls, particularly to limit China's access to advanced computing chips. Meanwhile, China has continued to use sanctions to target US firms, recently in the form of a national security investigation into US chip maker, Micron, and "countermeasures" against major US arms manufacturers such as Raytheon and Lockheed Martin. This Article examines the range of economic sanctions that the US and China have and could deploy against one another, the lawfulness of these measures, and the likely effects of these sanctions for the future of international sanctions law. Although unilaterally imposed economic sanctions remain a deeply contested area of international law, an unintended consequence of the increasing use of sanctions by the world's two largest economies will be to lend legitimacy and legality to their use. Although the economic costs of a US-China sanctions war would be staggering, such a war would only further entrench unilateral sanctions as a fundamental tool of national security and foreign relations. This Article describes how international law is likely to develop as a consequence of the proliferation of sanctions, arguing that, far from undermining their lawfulness, increased state practice will support a customary norm of unilaterally imposed sanctions.

China’s Belt and Road Initiative (BRI) is the largest investment in global infrastructure of all time, easily outpacing the United States’ Marshall Plan following World War II. Despite the BRI’s aspirations, it has been called into question from an increasing range of perspectives. This article focuses on security questions raised from the American perspective. By placing the BRI in historical and global perspective, I will critically evaluate the questions raised by American observers in order to separate the concerns we should take seriously from those that are overblown. The Belt and Road initiative and accompanying military buildup have been heralded as a fundamental change in the global order. Whether that is the case, of course, remains to be seen. What is certain, however, is that the balance of regional economic and military power is undergoing a dramatic change.

This chapter shows that attempts to liberalize restrictions on the use of force in counterterrorism operations 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 an armed conflict exists 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 the law properly governing the operation.

As aerial weapons become more accurate and precise, they paradoxically expose civilians to greater harm. They make the use of military force feasible where previously it had not been. While these weapons are subject to legal review to certify that they are capable of being deployed in a discriminate manner, weapons review practice in the US and UK lends cursory approval to weapons that are as likely to harm civilians as enemy combatants. This article argues that a robust contextualized review of weapon’s effects on civilians and combatants is both legally required and in states’ strategic security interests.

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.

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

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.

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.

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 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.