The Year In Review – 2011 Posts

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Iraq Withdrawal Highlights the Need for Smart Power

Posted December 13th, 2011 by admin

JURIST Guest Columnist Kevin Govern of Ave Maria School of Law says that the pending withdrawal of US forces from Iraq and the challenges to maintaining security in that country and in the region requires a new strategy in dealing with the region to address security concerns amid likely cuts to the US defense budget…


Smart power has been touted as “a cornerstone to our new foreign policy” beginning in the Bush administration and continuing today. Smart power employs soft power tools including diplomacy, economic assistance and communications to supplement or augment traditional hard power capabilities of the military to defend and advance US interests around the world. As the mandate for US and coalition troop presence in Iraq expires on December 31, 2011, this concept of smart power is essential to matters of regional and international security.

The costs of the ongoing Global War on Terror have created a strong impetus for smart power strategies. Former Defense Secretary Robert Gates called for an increase in smart power, advocating “to make the case for strengthening our capacity to use soft power and for better integrating it with hard power.” Gates strengthened his point by comparing the State Department’s annual budget of $36 billion versus 2007 military spending totaling nearly half a trillion dollars.

As 2011 concludes, the US Congressional Research Service has estimated that the US expended $1.283 trillion for the three operations initiated since the attacks of September 11, 2001. These expenditures went to military operations, base security, reconstruction, foreign aid, embassy costs and veterans’ health care. Of course, there can never be a value put on the 4,486 American lives lost, or the 32,226 wounded in action.

The year’s end marks the end of the eighth year of military operations in Iraq. It also marks the third year under the US-Iraq Status of Forces Agreement [PDF]. That agreement established that US combat forces would withdraw from Iraqi cities by June 30, 2009, and all US forces will be completely out of Iraq by December 31, 2011. The US and Iraqi governments also approved a Strategic Framework Agreement on mutual cooperation on primarily non-military matters.

The reality is that the US can no longer primarily rely upon hard power presence in Iraq, and must plan for likely withdrawals from Afghanistan and elsewhere. Instead, the policy and troop shift must manage the military presence in the region to not just rearrange military forces but to continue to develop integrated strategies (civil-military), resource bases (economic, political, and military) and tool kits (military and diplomatic capabilities) to achieve American objectives.

Iraqi Prime Minister Nouri al-Maliki spoke November 26, 2011, at a conference in Baghdad as having “no concerns whatsoever” about security after US troops withdraw, asserting that Iraqi security forces have proven themselves capable and able to protect Iraq. So, aside from the US military and contractor presence for embassy assets in Iraq, the US will look to expand its bilateral and multilateral ties with the six nations in the Gulf Cooperation Council. The US needs to foster a new “security architecture” for the Persian Gulf in the reality of troops withdrawn from Iraq and likely defense budget cuts. Despite a likely decrease in assets assigned to the region, expanded security relationships in the region will combine economic, political and military strategies that build capability as well as demonstrate commitment to “partner capability” and “partner capacity.”

The new year could hardly bring higher stakes to the Middle Eastern security outlook. The consequences of the so-called Arab Spring beyond Iraq are far from settled. The Rand Corporation pointed out that the conflict in Iraq had in some instances entrenched and strengthened neighboring Arab governments while diminishing the momentum for political reform in those countries. Researchers also found that the Iraq War undermined al Qaeda’s standing in the region and forced the network to adapt new tactics and strategies. In the Rand report estimation, no matter how the internal situation in Iraq evolves, the war’s effect on the broader region will be felt for decades.

It appears inevitable, then, that the US initiate and implement a “smart power presence” in the region that “underscores the necessity of a strong military, but also invests heavily in alliances, partnerships and institutions at all levels to expand American influence and establish the legitimacy of American actions.”

Kevin Govern is an Associate Professor of Law at Ave Maria School of Law. He began his legal career as a US Army Judge Advocate. He has also served as an Assistant Professor of Law at the United States Military Academy and has taught at California University of Pennsylvania. Unless otherwise attributed, the conclusions and opinions expressed are solely those of the author and do not reflect the official position of the US government, Department of Defense or Ave Maria School of Law.

Suggested citation: Kevin Govern, Iraq Withdrawal Highlights the Need for Smart Power, JURIST – Forum, Dec. 13, 2011,





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By Jenny Chung C’12

Targeted Killings panel discussion
Claire Finkelstein, Jens Ohlin, Ambassador Thomas Graham, Daphne Eviatar and Kevin Govern







On Wednesday, November 30 the Institute for Law and Philosophy (ILP) of the University of Pennsylvania hosted a panel discussion on the “Ethical and Legal Dimensions of Targeted Killing,” drawing an audience of faculty, students, and members of the public, and which brought to light a “sea change” in modern conceptions of war and national security policy.

Moderated by Claire Finkelstein, an ILP co-director and Algernon Biddle Professor of Law and Professor of Philosophy, the panel brought together four prominent authorities in the fields of international and criminal law, national security policy, military ethics, and human rights.

Finkelstein opened by highlighting both the timeliness and relevance of discussing military ethics as an issue with which both the Obama and Bush administrations have grappled in combating terrorism.

She noted the “enormous sea change” the nation has undergone in recent decades concerning “fundamental conceptions related to war [and] the traditional distinction between combatants and civilians.” In addition, because the notion of sovereignty now plays a decreasingly important role in terms of identifying enemy threats to the country, Finkelstein said, important issues have emerged surrounding “how we think about the relationship between U.S. military action in the fight for security and the civilian-combatant divide.”

Finkelstein also identified the expansion of executive authority in the wake of 9/11 as another ideological shift. “We have according to many policymakers and lawyers been in a protracted state of emergency since 9/11—in times of emergency, the executive branch is conceived of as having broader powers,” she said. “What do we make of a state of emergency with no beginning, middle or end in sight?”

The panel commenced with a question on whether the Obama administration’s current use of targeted killing can be considered ethically or legally problematic.

Jens Ohlin, Associate Professor at Cornell University Law School and expert in international humanitarian law, criminal law and international law, asserted that the Obama administration has demonstrated “remarkable restraint” in carrying out targeted killings.

“I’m convinced [that] under international humanitarian law if civilians are participating in hostilities they can be targeted,” he said, adding that this approach has served as a “guiding principle” to the administration.

Claire Finkelstein, Jens Ohlin and Ambassador Thomas Graham=
Claire Finkelstein, Jens Ohlin and Ambassador Thomas Graham








Ambassador Thomas Graham, Special Representative of the President for Arms Control, Non-Proliferation, and Disarmament (1994-1997), emphasized that the acceptability and legality of targeted killings and the drone technology used in such operations depend largely on whether or not they occur in a war zone.

“Using targeting killing drones in struggle against the Taliban is a legitimate part of military action,” he explained. “The use of military weapons like drones in Yemen, far removed from any war zone, is problematic.”

Senior Associate at the Law and Security Program of Human Rights First Daphne Eviatar contended that the methods adopted by the current administration are not lawful.

“It’s not clear that the admin is targeting only belligerents because of the secrecy surrounding the program,” she said. “The administration doesn’t even acknowledge it has a CIA drone program, which conducts the bulk of its strikes. We don’t know who they’re targeting, why, or the extent of civilian casualties because it’s not recorded—there’s a murky view of what’s going on.”

Ave Maria School of Law Associate Professor Kevin Govern, who specializes in military ethics and military law, expressed confidence that “adequate legal oversight” is exercised and argued that the perception of killing occurring more often than capture is mere “speculation confirmed by rumor and innuendo.”

The question that followed concerned who could permissibly targeted in war aside from combatants and elicited a range of responses from the panelists.

While there exists a “functional equivalence” between citizens engaging in hostilities and enemy combatants, Ohlin said, it is exceedingly difficult to identify the civilians who are directly participating in hostilities (DPH).

He suggested as a possible solution the categorical classification of individuals belonging to hierarchical nonstate groups who exercise a “continuous combat function” as combatants.

Eviatar corroborated the notion that DPH status is difficult to assess and added that targeted killings are based on intelligence that may not be altogether accurate. “Mistakes are being made all the time in that area,” she said. “More transparency on the kind of intelligence being used is important to knowing whether the right people are being targeted.”

The panelists then turned to the question of the extent of military duty to capture rather than kill in international conflicts.

According to Ohlin, while international humanitarian law dictates capture on condition of surrender, the law of armed conflict does not. “It’s a determination of what body of law applies,” he explained. “If you’re going to argue there is a duty to capture, I take it what you’re really arguing is that the law of armed conflict just doesn’t apply to the operation.”

Daphne Eviatar and Kevin Govern
Daphne Eviatar and Kevin Govern







Eviatar voiced a contrary opinion, suggesting that while there may exist no duty to attempt capture upon surrender, “killing must be militarily necessary.” Drone technology complicates the issue, she said, because it is unclear whether it is possible to surrender to a drone.“The Pentagon’s statistics indicate 84 to 86 percent of ongoing kill-or-capture operations involved no use of violence,” Govern said, maintaining that “elected legislators” must be trusted to perform their role as “oversight” and the military to “ensure a detailed planning process” precedes every operation.

When asked whether the targeted killings of Osama Bin Laden and Anwar al-Awlaki were legal and ethical under the principles of law and morality of war, Govern replied that as they met the four basic criteria: “military necessity, proportionality of the use of force, avoidance of unnecessary suffering and discrimination/discernment,” both were legally and ethically justified.

Eviatar contended, however, that while the Bin Laden raid is widely regarded as morally justified, “it may have been an illegal operation.” She added that “al-Awlaki was also problematic because […] there was no real indication that he was DPH and should have been subject to arrest and prosecution.”

In Graham’s view, there had never been any intention to capture Bin Laden alive, as that would have “triggered terrorist actions all over the world to get him released.” While the raid was “contrary to policy,” he nevertheless believes it was justified.

The case of al-Awlaki, however, was “very different” and due process should have taken precedence over military necessity, Graham said. “He was an American citizen killed by the U.S. government without a full trial in a country that wasn’t part of a war zone,” he explained. “I don’t think something like the al-Awlaki case should ever happen—there has to be some deference paid to the fact that we do have a Constitution.”

Additional Event Photos: Panel Discussion: Ethical and Legal Dimensions of Targeted Killing (Flickr)

and see:

The Bush Administration pioneered the use of predator drones to target and kill suspected terrorists. The practice provoked widespread discussion and disagreement about its legal and moral dimensions. Some critics claimed that the strikes violated the international prohibition against the use of force, others that the strikes violated the laws of war by targeting civilians. And many critics argued that the strikes were in violation of fundamental human-rights principles.

In contrast, supporters of the drone strikes defended their legality as a lawful exercise of national self-defense under the U.N. Charter, praised their efficiency in reducing American casualties, and argued for their consistency with the claims of human rights. The Obama administration has not only endorsed the strategy as lawful but has also vastly increased the number of drone strikes, even against U.S. citizens such as Anwar al-Aulaqi, the radical Muslim ideologue often described as al-Qaeda’s chief propagandist.

These drone strikes, as well as the raid against Bin Laden, raise several difficult moral and legal questions. There is widespread disagreement about whether suspected terrorists have rendered themselves morally and legally liable to lethal attack. While some scholars argue that the targeted individuals are liable to attack, others believe that the widespread use of this modern technique of asymmetrical warfare raises troubling questions in just war theory, public international law, international humanitarian law, criminal law, human rights law, and legal philosophy.





  1. Rebutting the Civilian Presumption: Playing Whack-A-Mole Without a Mallet? Colonel Mark “Max” Maxwell
  2. Targeting Co-belligerents Jens David Ohlin
  3. Can Just War Theory Justify Targeted Killing? Three Possible Models Daniel Statman
  4. Justifying Targeted Killing With a Neutral Principle? Jeremy Waldron


  1. Murder, Combat or Law Enforcement Jeff McMahan
  2. Targeted Killing as Preemptive Action Claire Finkelstein
  3. The Privilege of Belligerency and Formal Declarations of War Richard V. Meyer


  1. Going Medieval: Targeted Killing, Self-Defense, and the Jus ad Bellum Regime Craig Martin
  2. Imminence in Justified Targeted Killing Russell Christopher
  3. Defending Defensive Targeted Killings Phillip Montague


  1. The Importance of Criteria-Based Reasoning in Targeted Killing Decisions Amos N. Guiora
  2. Are Targeted Killings Unlawful? A Case Study in Empirical Claims without Empirical Evidence Gregory S. McNeal
  3. Operation Neptune Spear: Was Killing Bin Laden a Legitimate Military Objective? Kevin H. Govern
  4. Efficiency in Bello and ad Bellum: Making the Use of Force Too Easy? Kenneth Anderson


  1. Targeting in War and Peace: A Philosophical Analysis Fernando R. Tesón
  2. Targeted Killings and the Morality of Hard Choices Michael S. Moore
  3. Targeted Killing and the Strategic Use of Self-Defense Leo Katz



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Posted November 3rd, 2011 by admin


On October 1, 2007, U.S. Africa Command (“AFRICOM”) officially “stood up” or reached “initial operating capability” to start its function as the U.S. Department of Defense’s (“DoD’s”) newest regional unified combatant command  (“UCC”). On a continent that has changed much since the independence movements of the last half of the 20th Century, AFRICOM has been adapting to changes in U.S. law and foreign policy, in the context of evolving African political, security, and economic realities. Given the dramatically unfolding events taking place across the continent in the last four years, AFRICOM has had an urgent, practical imperative to fundamentally and rapidly alter the old “Cold War” paradigm of regional military command orientations to create and implement new approaches to crisis prevention and resolution across the spectrum of civil-military operations. 

This Article, therefore, addresses the issues and obstacles AFRICOM is likely to encounter, and attempts to discover the potential solutions offered by law and policy that would aid the organization in successfully accomplishing its stated missions, and advancing an “arc of stability” in Africa.


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JURIST – Forum The Twitter Revolutions

JURIST Guest Columnist Kevin Govern of Ave Maria School of Law says that social media and networking have proven pivotal in the success of the Arab Spring protest movements in a manner that was previously unforeseen by commentators and scholars…

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Avoiding Amnesty: Bringing Gaddafi to Justice

Posted August 28th, 2011 by admin
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See article by Rudy Barnes, Jr. under Religion, Culture, Values, the Law and Public Support (see sidebar)

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See article by Kevin Govern and commentary by Bob Haskell and Rudy Barnes, Jr. under Lessons Learned in Legitimacy and Contemporay Operations (see sidebar)

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