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Nicholas Rostow, Laurie Blank and Others Discuss National Security at ABA Conference

I recently attended the American Bar Association Standing Committee on Law and National Security 22nd Annual Review of the Field of National Security Law in Washington, D.C. While there were many interesting panels, I want to highlight those from the second day of the conference, specifically, “National Security Law and International Law,” and “The Law of Armed Conflict: Past, Present and Future.” Panelists for the former, moderated by Robert F. Turner, Professor and Associated Director for the Center for National Security Law at University of Virginia School of law, included Nicholas Rostow, Jeremy Rabkin, and Ruth Wedgwood, who offered their perspectives on the topic.

Nicholas Rostow, Distinguished Professor and Senior Director for the Center for Strategic Research at the National Defense University, defined three important points that he believes briefly describe the state of our current international affairs.  First, sovereignty, according to Professor Rostow, is defined in international law and we are told how to exercise that power domestically by the United States Constitution, and internationally by international law. Next, while the power to make and declare war is domestic, Professor Rostow explained, the power to conduct military operations is largely governed by international law. Lastly, since 1945, the fundamental United States strategy in foreign affairs has been to prevent a “huge” and likely nuclear war between great powers. Our international experiences—including both World Wars—have shown us that this strategy should work.

On the other hand, Jeremy Rabkin, Professor of Law at George Mason University, offers a non-lawyer perspective. He invited the lawyering community to “look behind the law.” By this Professor Rabkin meant that lawyers often operate under the assumption that the law has all the answers. However, according to Professor Rabkin, the law is of secondary importance in national security. Professor Rabkin explained the role the law plays according to his interpretation when he invited the audience to think about Article 13 of the League of Nations, which reads “The Members of the League agree that whenever any dispute shall arise between them which they recognise to be suitable for submission to arbitration or judicial settlement and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to arbitration or judicial settlement.” What dispute, he inquired, is not “suitable” for arbitration? The answer, he suggests, includes those disputes that result in an answer that cannot be accepted by the point of view of the particular nation at issue. The importance of the law in this area then, presents an open question and countries will respond to a range of incentives that do not necessarily represent a nation’s respect for law.

Ruth Wedgwood, Edward B. Burling Professor of International Law and Diplomacy and Director of International Law and Organizations Program at Johns Hopkins Law School, took a different approach to the issue discussing the assertion of retroactive jurisdiction. For example, some have argued that the International Criminal Court (ICC) should retroactively apply the Rome Statute, to which the United States has not joined, to Gaza. Professor Wedgwood, however, asserted that application of retroactive jurisdiction might allow for dangerous opportunistic behavior.

Later that afternoon Judge Scott L. Silliman of the U.S. Court of Military Commissions Review moderated a panel on the law of armed conflict (LOAC), which provided an interesting continuation of the conversations from the panel on international law and national security from that morning. Panelists David E. Graham, Executive Director of the Judge Advocate General’s Legal Center and School for the U.S. Army, and Hays Parks, former Senior Associate Deputy General Counsel on International Affairs for the Department of Defense, described the past and current state of LOAC, respectively. Sean Watts, Associate Professor of Law at Creighton University School of Law, offered an interesting discussion of LOAC as it applies to Cyber Warfare. Here, however, I want to focus on the contributions of Laurie Blank, Professor of Law and Director of International Humanitarian Law Clinic at Emory University School of Law, who provided ways to extrapolate LOAC to deal with unmanned aerial vehicles (UAVs).

Professor Blank began by describing the foundational questions that must be addressed: 1) Are UAVs “lawful weapons”? And, 2) is their use lawful? As to the first question, Professor Blank answered unwaveringly “yes,” these are lawful weapons under LOAC. The more important part of Professor Blank’s discussion emphasized the second question. To answer this question, Professor Blank described the requirements under LOAC that the use of these weapons must meet: distinction, proportionality, and precautions.

First, the principle of distinction and identification of legitimate interests is satisfied, according to Professor Blank, by the ability of UAVs to track individuals and determine the legitimacy of the target based on many days or weeks worth of collected data. The concept of proportionality, she explained, is violated if the civilian casualties caused by the targeted strike will be excessive in light of the military gain. This, however, is not problematic in regards to drone strikes. Again, the surveillance capabilities offered by UAVs are in real time and those monitoring the surveillance may determine, among other things, who and what is in the area of concern, when certain people come and go from the area, and develop a “pattern of life analysis” that is instrumental in the ability to design a specific moment to strike in accordance with LOAC. The choice of weapon, Professor Blank explained, is a component of precaution. In other words, there are different types of weapons that can be fired from or by a drone and those engaging in a targeted strike must gather information and adjust the mission through the surveillance capabilities to ensure the necessary precautions are taken.

Professor Blank then moved on to discuss the consequences in terms of how we think about LOAC based on our use of UAVs. This concept calls into question a number of smaller and more difficult questions. How much gathered information can even be processed when administering a mission? Is there such a thing as too much information? Can the information be processed quickly enough to obtain relevant information? The proportionality test, Professor Blank notes, uses prospective language, which assumes imperfect information to account for the answers to these questions.

Overall, the conference offered useful insight and a forum for productive dialogue about the current and pressing issues surrounding our national security. Here, I highlight only a few that were of particular interest to me.

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