Between Crime and War: Hybrid Legal Frameworks for Asymmetric Conflict

"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 crime paradigm focuses on the interception of demonstrable immediate threats to the safety of others. Its aim is to protect specific persons and members of the general public from violence by identifiable individuals, who may be acting alone or in concert. In pursuit of this aim, the state uses police operations and the criminal justice system. Both of these tools are governed by human rights principles that significantly constrain state power. A state may not restrict liberty unless it has demonstrable evidence that an individual may pose a danger to others. It may not use force if other means will be effective to stop a threat. If using force is unavoidable, it must be the minimum amount necessary. Furthermore, a state generally may not take life unless no other measure will intercept an immediate threat to life"--

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.

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 state. This book suggests that we need not see the options as confined to this binary choice as it evaluates the philosophical and ethical implications of using both military and non-military frameworks for pursuing counterterrorism operations.

Non-state actors, terrorism, and the war paradigm revisited / Seth Cantey -- The limits of law and the value of rights in addressing terrorism : a study of the UN counter-terrorism architecture / Fionnuala Ní Aoláin -- The paradox of discrimination : when more violence triggers fewer legal constraints / Jens David Ohlin -- Fighting terrorism under all applicable law / Joshua Andresen -- When conflict recurs : classification of conflict when hostilities break out anew / Laurie Blank -- Non-state actors in a post-war world : conceptualizing war as criminal enforcement / Claire Finkelstein -- Urban warfare : policing conflict / Ken Watkin -- Ratchet down or ramp up? Contemporary threats, armed conflict, and tailored authority / Geoff Corn -- Using law as a weapon against nuclear proliferation and terrorism : the U.S. government's financial lawfare against Iran / Orde F. Kittrie -- Human rights law as an alternative to jus in bello / Christopher J. Fuller -- National security policymaking in the shadow of international law / Laura Dickinson -- Emerging transnational self-defense norms and unrealized liberal values / John Dehn -- Finding peace in the law of war / Lieutenant Colonel Bailey Brown -- From armed conflict to countering threat networks : counterterrorism and social network analysis / Todd Huntley & Mitt Regan -- Counting the ripples : the challenge of extraterritorial jurisdiction to prosecute non-state actors / Evan R. Seamone -- 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 -- U.S. military prosecutions during non-international armed conflict / Chris Jenks.