Between Crime and War

Hybrid Legal Frameworks for Asymmetric Conflict

Jens David Ohlin, Claire Finkelstein, Christopher J. Fuller, Mitt Regan (Herausgeber)

Buch | Hardcover

592 Seiten

2023
Oxford University Press Inc (Verlag)
978-0-19-763879-8 (ISBN)

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The threat posed by the recent rise of transnational non-state armed groups does not fit easily within either of the two basic paradigms for state responses to violence. The civilian paradigm focuses on the interception of demonstrable immediate threats to the safety of others. The military paradigm focuses on threats posed by collective actors who pose a danger to the state's ability to maintain basic social order and, at times, the very existence of the state. While the United States has responded to the threat posed by non-state armed groups by using tools from both paradigms, it has placed substantially more emphasis on the military paradigm than have other states. While several reasons may contribute to this approach, one may be the assumption that a state must use each set of tools strictly according in accordance with the principles that underlie each paradigm. Implicit in this assumption may be the sense that the only alternative to the civilian paradigm is the unqualified military one.

The chapters in this book suggest, however that we need not see the options as confined to this binary choice. It may be profitable to consider borrowing elements from each paradigm on some occasions to act more expansively than the conventional civilian paradigm allows, but less expansively than the conventional military paradigm would permit. At the same time, the mixing of the categories comes with its own ethical and legal risks that should be scrutinized.

Claire Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy at the University of Pennsylvania. Claire Finkelstein's current research addresses national security law and policy and democratic governance with a focus on related ethical and rule of law issues. Professor Finkelstein is the founder and faculty director of the Center for Ethics and the Rule of Law (CERL), a non-partisan interdisciplinary institute affiliated with the University of Pennsylvania's Annenberg Public Policy Center (APPC). Christopher J. Fuller is Associate Professor of Modern U.S. Foreign Policy and Head of Admissions at the University of Southampton. He specializes in U.S. foreign policy from 1945 to the present day with a particular interest in the "War on Terror" and wider U.S. counterterrorism practices. His previous books include See It/Shoot It: The Secret History of the CIA's Lethal Drone Program (2017). Jens David Ohlin became the Allan R. Tessler Dean of Cornell Law School on July 1, 2021. His scholarly work stands at the intersection of four related fields: criminal law, criminal procedure, public international law, and the laws of war. Trained as both a lawyer and a philosopher, his research has tackled questions as diverse as criminal conspiracy and the punishment of collective criminal action, the philosophical foundations of international law, and the role of new technologies in warfare, including cyberwar, remotely piloted drones, and autonomous weapons. Mitt Regan is McDevitt Professor of Jurisprudence, Director of the Center on the Legal Profession, and Co-Director on the Center on National Security and the Law at Georgetown University Law Center. His work focuses on international law, national security, international human rights, and legal and military ethics. Professor Regan is also Senior Fellow at the Stockdale Center for Ethical Leadership at the U.S. Naval Academy, and Adjunct Faculty Member at the Center for Military and Security Law at the Australian National University College of Law.

Forward
Lieutenant General Charles N. Pede
Introduction
Jens David Ohlin & Mitt Regan

Part I: The Framework Problem in Modern Conflict: Can we Still Distinguish War From Crime?

Chapter 1. Non-State Actors, Terrorism, and the War Paradigm Revisited
Seth Cantey

Chapter 2. The Limits of Law and the Value of Rights in Addressing Terrorism: A Study of the UN Counter-Terrorism Architecture
Fionnuala Ní Aoláin

Chapter 3. The Paradox of Discrimination: When More Violence Triggers Fewer Legal Constraints
Jens David Ohlin

Chapter 4. Fighting Terrorism under All Applicable Law
Joshua Andresen

Chapter 5. When Conflict Recurs: Classification of Conflict when Hostilities Break Out Anew
Laurie Blank

Part II: War as Criminal Enforcement

Chapter 6. Non-State Actors in a Post-War World: Conceptualizing War as Criminal Enforcement
Claire Finkelstein

Chapter 7. Urban Warfare: Policing Conflict
Ken Watkin

Chapter 8. Ratchet Down or Ramp Up? Contemporary Threats, Armed Conflict, and Tailored Authority
Geoff Corn

Chapter 9. Using Law as a Weapon Against Nuclear Proliferation and Terrorism: The U.S. Government's Financial Lawfare Against Iran
Orde F. Kittrie

Chapter 10. Human Rights Law as an Alternative to Jus in Bello
Christopher J. Fuller

Part III: Fighting Crime as War

Chapter 11. National Security Policymaking in the Shadow of International Law
Laura Dickinson

Chapter 12. Emerging Transnational Self-Defense Norms and Unrealized Liberal Values
John Dehn

Chapter 13. Finding Peace in the Law of War
Lieutenant Colonel Bailey Brown

Chapter 14. From Armed Conflict to Countering Threat Networks: Counterterrorism and Social Network Analysis
Todd Huntley & Mitt Regan

Part IV: crime and war: prosecuting terrorism and war crimes

Chapter 15. Counting the Ripples: The Challenge of Extraterritorial Jurisdiction to Prosecute Non-State Actors
Evan R. Seamone

Chapter 16. Diversifying the Sources of Evidence in Terrorism Cases Before Criminal Courts in (Post-)Conflict and High-Risk Situations: The Role of The Military
Bibi Van Ginkel, Christophe Paulussen, & Tanya Mehra

Chapter 17. U.S. Military Prosecutions During Non-International Armed Conflict
Chris Jenks

Erscheinungsdatum	21.10.2022
Reihe/Serie	ETHICS NATIONAL SECURITY RULE LAW SERIES
Verlagsort	New York
Sprache	englisch
Maße	238 x 163 mm
Gewicht	975 g
Themenwelt	Recht / Steuern ► EU / Internationales Recht
	Recht / Steuern ► Öffentliches Recht
	Sozialwissenschaften ► Politik / Verwaltung
ISBN-10	0-19-763879-1 / 0197638791
ISBN-13	978-0-19-763879-8 / 9780197638798
Zustand	Neuware