Volume 42, Issue 2

Failing Our Troops: A Critical Assessment of the Department of Defense Law of War Manual

Written by David Glazier, Zora Colakovic, Alexandra Gonzalez & Zacharias Tripodes

In June 2015, the Department of Defense (DoD) General Counsel issued a 1,200-page volume, styled The Department of Defense Law of War Manual, endeavoring to provide U.S. military forces their first unified guidance on the law governing armed conflict. Critical reaction to date has largely focused on a handful of substantive issues with the Manual, such as its treatment of journalists and of the principle of proportionality. DoD subsequently released two modest updates in response. This Article takes a broader view, evaluating the Manual’s overall suitability as a primary reference for U.S. military personnel before concluding that it fails to meet this need due to its significant shortcomings in both substantive content and form.

The Manual’s uncertain hierarchical standing within DoD and lack of interagency concurrence, for example, leave readers unsure of its credibility. Methodologically, its treatment of international law uses problematic sources, misunderstands customary international law (CIL) formation and legal concepts such as “persistent objector,” and overstates the power of lex specialis to override the application of human rights law in conflict situations. Substantively, its approach to the principle of distinction effectively guts the law of its restraining value as to what can be attacked; its resurrection, meanwhile, of “honor”—even as the United States employs drones, flown remotely by invulnerable operators—hands media-savvy adversaries a public relations bonanza exploitable to U.S. detriment. And its claim of a U.S. right to use expanding bullets—despite universal recognition of doing so as a war crime—places U.S. personnel who might employ them at significant risk of prosecution.

Shortcomings in content, form, and style, including its failure to identify authoritatively the full scope of recognized war crimes or the provisions of the 1977 Additional Geneva Protocols that bind U.S. forces, coupled with its excessive length, fragmented discussions of key issues, and lack of meaningful indexing further undermine the Manual’s functional utility as a resource for U.S. warriors. The Article concludes that collectively, these deficiencies are so significant that the Manual should be withdrawn from distribution until DoD can complete a comprehensive rewrite.

Against Secrecy: The Social Cost of International Dispute Settlement

Written by Emilie M. Hafner-Burton, Sergio Puig & David G. Victor

Three decades ago, Owen Fiss argued that rising popularity of pre-trial settlement and arbitration was an unwelcome trend—it sacrificed the public benefits of transparent adjudication for the private expedience of settling disputes. In this Article, we propose that important areas of public international law are on the cusp of a similar settlement crisis.

As international governance is taking on increasingly more contentious topics that affect areas of policy that were previously the exclusive domain of national prerogative, firms and governments have radically expanded the use of international dispute settlement procedures. In their effort to legitimize these procedures, states and international organizations have adopted a wide array of reforms aimed at promoting greater transparency and predictability in dispute settlement. Using a unique dataset on all investor-state arbitrations under the World Bank’s International Centre for Settlement of Investment Disputes (ICSID)—an institution at the epicenter of the rise of international adjudication—we show that these transparency reforms are not leading to a decline in secrecy. Secrecy in the outcomes of investment arbitration remains high in part, we suggest, because parties have found ways to use settlements to hide relevant information such as key facts and legal reasoning from public view. We identify statistically which factors are associated with both the secrecy and settlement of investment disputes and show that these factors are analogous to the explanators of settlement in national courts.

Scholars and practitioners of international law have tended to view international dispute settlement as an unalloyed good even when it is done in private—exactly the pro-settlement bias Against Settlement warned about. As investor-state arbitration increasingly addresses issues that are important for public policy and not merely matters that should be resolved expeditiously in private, we stand for narrowing the circumstances under which secret settlement is allowed and increasing the oversight of settlements. We identify minimum disclosure rules and argue for much narrower protections for confidential information—pointing to reforms in domestic legal procedures that suggest how stronger disclosure rules on settlements could yield a more consistent, coherent, and legitimate corpus of foreign investment law. We also identify a tension between the kinds of reforms that would be most consequential and the practical strategies for reform; adjustments of bilateral investment treaties and other legal instruments that invoke arbitration are a proven feasible means of reform, but broader reforms would require the much more difficult task of altering the ICSID Convention. While our empirical focus here is on investor-state arbitration, our arguments against secrecy and settlement are more generic. Similar policy issues arise for other domains of international dispute settlement where private interests are arrayed against government policies and where the expedience of settlement is arrayed against the broader social good created by sunlight.

The Privacy Principle

Written by Frédéric Gilles Sourgens

Can international law regulate global surveillance programs without sacrificing national security interests?  In the face of unprecedented global terrorist activity, this question takes a near existential form: intercepting a chat room exchange between accomplices in Syria and California can be the difference between timely arrest and mass atrocity. Despite the practical importance of this question, scholarly engagement with it so far has been incomplete. Part of the literature submits that global intelligence programs operate beyond the grasp of legal constraint, thus dooming us to a bleak Orwellian future. The remainder proposes human rights-based solutions, which, on account of the United States, France, Russia, and China having rejected them, remain crippled by difficult issues of state consent and state practice under treaty or customary international law.

This Article proposes that this gap can be closed by theorizing the existence of a general principle of law, the Privacy Principle. The Article establishes the Privacy Principle by means of a comparative analysis of the private laws of core states with significant signals intelligence capabilities: the United States, France, Russia, China, Israel, and Iran. This analysis reveals that (1) there is general agreement on the existence of a right to privacy prohibiting physical or virtual surveillance of people when in private; (2) “privacy” can be theorized in terms of reasonable expectations of seclusion as defined by the twin factors of the physical or virtual space affected, and the intimacy of the information at issue; and (3) the “right to privacy” invariably weighs such reasonable expectations of seclusion against the public interest, permitting intrusions when they are proportionate to all relevant interests at stake. This Article demonstrates that the Privacy Principle is part of general international law. It explains how approaching privacy from the perspective of a general principle can achieve the normative goals of the current human rights literature while accounting for the legal and policy objections of its critics.  Finally, it shows how the application of the Privacy Principle to global surveillance programs is responsive to today’s national security needs: the Privacy Principle prohibits the dragnet collection of data from private persons. Nevertheless, it supports the design of efficient signals intelligence programs capable of detecting threats by monitoring traffic on terrorist propaganda and recruitment websites, and subsequently tailoring deeper surveillance after a threat assessment of this traffic.

A Historical Perspective on Filings by Foreign Sovereigns at the U.S. Supreme Court: Amici or Inimici Curiae?

Written by Matteo Godi

Legal scholars have largely ignored the practice of foreign sovereigns filing amicus briefs at the U.S. Supreme Court. This Note builds on a recent study of post-1978 amicus briefs by uncovering the pre-1978 history of this practice. Through a framework of analysis that distinguishes between fact-based and interest-based amicus briefs—that is, between (1) arguments offering legal facts that necessitate a specific conclusion, and (2) arguments relying on economic consequences and foreign and international law—this Note explains the Court’s favorable approach to interest-based foreign amici. Interest-based briefs ensure that the Justices consider the vital interests of foreign sovereigns, which often align with those of the United States, by giving a voice to foreign nations. Justices of different judicial philosophies have found it worthwhile to engage with these briefs during the process of carefully balancing competing interests. And they have done so for centuries. Accordingly, foreign amici have played, and continue to play, a positive and important role in Supreme Court litigation. This Note concludes that the Court should continue to actively engage with interest-based foreign amicus briefs, notwithstanding current trends toward isolationism.