Constitutionalism Across Borders in the Struggle Against Terrorism
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Constitutionalism Across Borders in the Struggle Against Terrorism

Edited by Federico Fabbrini and Vicki C. Jackson

This edited collection explores the topic of constitutionalism across borders in the struggle against terrorism, analyzing how constitutional rules and principles relevant in the field of counter-terrorism move across borders. What emerges is a picture of the complex interplay of constitutional law, international law, criminal law and the law of war, creating webs of norms and regulations that apply in the struggle against terrorism conducted across increasingly porous borders.
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Chapter 14: Missing in action: the human eye

Or Bassok


In this chapter I argue that the growing involvement of lawyers in approving military operations, coupled with the disappearance of the soldier’s unmediated gaze of the battlefield, increase the probability for the execution of a certain kind of manifestly unlawful orders. In recent decades, western states have put their faith in jurists in their attempt to tackle the problem of human rights violations during warfare. Through setting up an international web of legal rules, now known as International Humanitarian Law (previously known as the law in war), and by enhancing the role of jurists as the most equipped experts to detect and prevent violations of this law, western states have tried to ensure a more humane battlefield. In this chapter I argue that this effort has inherent limitations. I show that the growing reliance on lawyers to approve the legality of military operations makes every order executed according to a lawyer’s “clearance” legal on its face. Militaries now prefer to expropriate the decision of legality from the combatants and view an order approved by lawyers to be legal. There are still grave concerns that even if militaries heed the legal advice given by military lawyers, violations of humanitarian law will still occur because military lawyers are more prone to divert from accepted standards of legality.

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