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Between Crime and War: Hybrid Legal Frameworks for Asymmetric Conflict

Between Crime and War: Hybrid Legal Frameworks for Asymmetric Conflict

Author: Jens David Ohlin; Claire Finkelstein; Christopher J. Fuller; Mitt Regan
Publisher: Oxford University Press
ISBN: 9780197638798
Published In: February 2023
Format: Hardback
Jurisdiction: ? Disclaimer:
Countri(es) stated herein are used as reference only

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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.

Foreword

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