Judges on the Battlefield? Judicial Observer Effects in US and UK National Security Policies

Trabucco, M. Lena

doi:https://doi.org/10.21985/n2-y5k1-3b52

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Judges on the Battlefield? Judicial Observer Effects in US and UK National Security Policies

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The relationship between law and war has evolved substantially over two centuries. One aspect of this evolution that merits further examination is legal accountability. Some international relations (IR) scholars maintain international law lacks meaningful influence without enforcement capabilities. But this critique of international law’s capacity to deliver meaningful influence in state behavior is over simplified and overlooks substantial changes and efforts to expand the enforcement capacity of international law. In the last half-century, states have taken deliberate steps to expand court jurisdiction into warfare enhancing the capability to enforce international legal obligations and increase the likelihood of legal accountability. This dissertation is an empirical account of legal accountability in British and American national security policies in the post-9/11 conflicts in Afghanistan and Iraq. How do the laws of war shape executive policies in armed conflict? This is the research question of this project. It is a fundamental question of international law and politics with strong academic and policy implications. The laws of war attempt to humanize war and limit repercussions to civilians and combatants; yet, empirically there is no consensus as to whether the laws of war accomplish this goal. My contribution to the debate is an empirical account of legal accountability in policy processes. Specifically, how does international and domestic judicial accountability influence national security regarding torture and targeted killing? I propose that to understand how international law affects national security policies researchers should consider how expansion of jurisdiction for judicial review has permeated the policy process. I examine policies in the United States (US) and United Kingdom (UK) in the post 9/11 Afghanistan and Iraq conflicts. The scope is limited to the legal issues of torture and targeted killings; these represent well-established legal regimes in which the UK and US have the same obligations under the laws of war. Domestic and international courts had jurisdiction over the crimes of torture and targeted killings during the conflicts in Afghanistan and Iraq. This is a qualitative account using cross case comparison and process tracing using declassified primary sources and secondary sources, and interviews with elite military and political officials to understand how court jurisdiction influences military policies and strategies in war. I adopt the foundations of a theoretical framework from Ashley Deeks of “judicial observer effects” which analyzes the role of legal accountability in domestic legal systems. As such, judicial observer effects are the impact on executive policy making of probable court consideration of a particular national security policy. This dissertation expands on this framework to include the multiple jurisdictions that have potential effects in national security affairs; I expand the analysis to account for domestic observer effects, international observer effects, and foreign observer effects in US and UK policies on torture and targeted killings. The central findings of this thesis indicate that observer effects influence national security policies through two mechanisms. The first is executive branch inter-agency interaction and policy preferences. Executive agencies, or ministries, formulate policy preferences with differentiated perspectives on legal accountability for policy violations. The second mechanism is the institutional structure of coalitions. The conflicts in Afghanistan and Iraq operated in coalitions and military operations had to be coordinated around coalition partners diverse substantive legal obligations. Additionally, coalition operations also had to accommodate partners’ court jurisdiction(s). As such, through executive inter-agency interaction and coalition coordination, policymakers weighed the risk of legal accountability on policies regarding torture and unlawful targeting. Fundamentally, judicial observer effects impact national security policies by defining the parameters of policymaking. The United States with lower levels of judicial observer effects had more flexibility to maneuver if confronted with legal or strategic uncertainty. The United Kingdom with higher levels of judicial observer effects had more restricted policy parameters and less flexibility to maneuver if confronted with legal or strategic uncertainty. The central contribution of this dissertation is judicial observer effects as one element that delineates the boundaries of acceptable national security policy.

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