Abstract

http://ssrn.com/abstract=2377783
 


 



Folk International Law: 9/11 Lawyering and the Transformation of the Law of Armed Conflict to Human Rights Policy and Human Rights Law to War Governance


Naz K. Modirzadeh


Harvard Law School, HLS-Brookings Project on Law and Security

January 11, 2014

Harvard National Security Journal, Vol. 5, Issue 1 (2014), pp. 225-304.

Abstract:     
This Article argues that the positions many U.S.-based lawyers in the disciplines of international humanitarian law and human rights law took in 2013 on issues of lethal force and framing of armed conflict vis-à-vis the Obama Administration would have been surprising and disappointing to those same professionals back in 2002 when they began their battle against the Bush Administration’s formulations of the “Global War on Terror.” By 2013, many U.S.-based humanitarian and human rights lawyers had traded in strict fealty to international law for potential influence on executive decision-making. These lawyers and advocates would help to shape the Obama Administration’s articulation of its legal basis for the use of force against al Qaeda and others by making use of “folk international law,” a law-like discourse that relies on a confusing and soft admixture of IHL, jus ad bellum, and IHRL to frame operations that do not, ultimately, seem bound by international law. In chronicling the collapse of multiple legal disciplines and fields of application into the “Law of 9/11,” the Article illustrates how that result came about not simply through manipulation by a government seeking to protect national security or justify its actions but also through a particular approach to legal argumentation as mapped through various tactical moves during the course of the legal battle over the war on terror.

Number of Pages in PDF File: 80

Keywords: international law, war, law of armed conflict, targeted killing, drones, human rights law, direct participation in hostilities, non-international armed conflict

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Date posted: January 13, 2014  

Suggested Citation

Modirzadeh, Naz K., Folk International Law: 9/11 Lawyering and the Transformation of the Law of Armed Conflict to Human Rights Policy and Human Rights Law to War Governance (January 11, 2014). Harvard National Security Journal, Vol. 5, Issue 1 (2014), pp. 225-304. . Available at SSRN: http://ssrn.com/abstract=2377783

Contact Information

Naz K. Modirzadeh (Contact Author)
Harvard Law School, HLS-Brookings Project on Law and Security ( email )
Cambridge, MA 02138
United States
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