Politics, PhD candidate
Tom Dannenbaum is a PhD candidate in the Department of Politics and a Visiting Lecturer in Law at Yale Law School.
Tom's dissertation is on the moral integrity of the soldier and the normative meaning of fighting in a criminal war. The widespread, unjustified killing in a wrongful war is what makes it worthy of criminalization, and a scrupulous and coherent normative account of international law must acknowledge that the soldiers who fight criminal wars bear a heavy and lasting moral burden. This exposes a disturbing tension in their treatment by a global legal regime that denies them any rights or protections against being forced to do so. The dissertation explores that tension and its implications for the normative coherence of the contemporary international order. Arguing that the lesser evil defense of the current structure is weakening as the nature of war changes, the dissertation suggests avenues for global and domestic institutional reform.
Tom's academic articles have featured in the Harvard International Law Journal, International & Comparative Law Quarterly, Security Studies, the Cornell International Law Journal, and several other law journals and edited volumes. His work on state and international organization responsibility for the wrongful acts of peacekeepers has been cited by the Hague Court of Appeal in the Netherlands and the International Law Commission.
He holds degrees from Stanford University, Princeton University, and Yale Law School, where he was an editor of The Yale Law Journal. He expects to complete his Ph.D. in 2014.
With Power Comes Responsibility: Joint Ventures, Attribution, and Morality in International Law (Forthcoming Book Chapter, 2014).
When the actions of lawful joint ventures involving a number of states and international organizations result in global public wrongs, responsibility must be attributed to the participant states or organizations that hold the levers of control most relevant to preventing the conduct in question. This proposed standard (1) builds on the normative trend in international law emphasizing the state’s inherent moral obligation to prevent such wrongdoing, (2) recognizes the vital role of international cooperative ventures in furthering the project of international law, (3) is sensitive to the difficulty of developing systems of contribution and indemnification at the international level, (4) advances the project of deterrence, and (5) preserves the right to reparation. As such, this “power-to-prevent” standard is superior to the dominant preference for one or another formalism (whether “ultimate authority and control,” “overall operational control,” blanket multiple attribution akin to joint and several liability, or even the Nicaragua-inspired interpretation of “effective control”). It would apply to a broad range of international collective enterprises, including multi-national forces, peacekeeping operations, FRONTEX operations, joint policing, joint anti-piracy patrols, joint prisons, and joint territorial administrations. A broader standard of blanket multiple attribution akin to joint and several liability may be appropriate when the enterprise itself is unlawful.
Killings at Srebrenica, Effective Control, and the Power to Prevent Unlawful Conduct, 61 ICLQ 713 (2012)
In an important advance in the law of international responsibility, two Hague Court of Appeal judgments on the human rights failures of Dutch UN peacekeepers during the Srebrenica genocide adopted the power-to-prevent standard of attribution for the first time. This piece examines three aspects of the judgments – their unique approach to the question of human rights extraterritoriality, their avoidance of so-called “responsibility to protect,” and the theory under which they attributed the human rights failings of the battalion to the Netherlands, rather than the United Nations. On the third point, the Court adopted the standard of attribution proposed in my Translating the Standard of Effective Control into a System of Effective Accountability. Here, I elaborate further the contours of the rule I had advocated in that article and develop its legal and normative roots. In particular, I emphasize the equal application of the effective control analysis to both the sending state and the receiving organization, argue that this necessitates understanding effective control as preventive control, and explain why this is the normatively and legally optimal interpretation of the International Law Commission’s work on international responsibility.
Nationality and the International Judge: The Nationalist Presumption Governing the International Judiciary and Why it Must Be Reversed, 45 Cornell Int'l L.J. 77 (2012)
The normative authority of the international judiciary, its realization of its core aspirations, and its role in upholding the rule of international law depend on expunging structural assumptions of judicial nationalism in favor of a cosmopolitan model of international judging. Anxiety about judicial nationalism is rife in international courts. It underpins three kinds of provision – the judicial nationality limit, the judge ad hoc option, and the nationality-based recusal – one or more of which are adopted by the majority of international courts. These rules are misguided and counter-productive on their own terms. First, nationality is not a characteristic of sufficient potency to raise concern about the impartiality of a judge. Second, even if the anxiety were warranted, extant approaches to mitigating the perceived threat fail miserably in that endeavor. Third, lending statutory imprimatur to such anxiety actually exacerbates the threat of bias by normalizing the notion of judicial nationalism and thus contributing injuriously to the international judge’s conception of her professional role. These flaws are consequential. Lacking a global executive branch, international courts rely heavily on their normative authority for their efficacy in advancing the rule of law. The feasibility of cosmopolitan reform is exemplified most powerfully by its successful implementation by the World Trade Organization Appellate Body and the Caribbean Court of Justice.
Bombs, Ballots, and Coercion: The Madrid Bombings, Electoral Politics, and Terrorist Strategy, 20 Security Studies 303 (2011)
Contrary to popular perception, the 2004 terrorist bombings in Madrid were not a strategic terrorist success and do not provide a blueprint for future terrorist efforts to manipulate democratic outcomes. On March 11, 2004, an al Qaeda affiliate killed 191 civilians in a series of coordinated train bombings in Madrid. Spain's general election three days later confounded pollsters’ expectations – the incumbent PP was ousted by the challenging PSOE, a party committed to withdrawal from Iraq. After establishing that al Qaeda is not a credible coercive agent, I debunk the popular myth that Spanish voters erroneously entered a coercive bargain with the network. The attacks were also a strategic failure in terms of terrorist advertising, provocation, and regime destabilization. Although they likely boosted morale in al Qaeda, this is a strategic victory common to almost any successfully executed attack. Despite their lack of strategic impact, the Madrid bombings did contribute to the PSOE victory in three ways. First the attacks boosted turnout among abstainers (who skew left in Spain). Second, the PP responded to the attacks by blaming unequivocally the Basque separatist group, ETA, in a way that was widely viewed as manipulative, dishonest, and political, feeding into an existing popular narrative of PP mendacity. Third, before the attacks Spaniards had preferred PSOE policy on the “global war on terror.” Its raised salience benefited the PSOE, even though voters did not believe withdrawal from Iraq would reduce the risk of further attacks, and even though they backed the PSOE pledge to increase significantly the Spanish deployment in Afghanistan (in direct violation of the terrorists’ explicit demand for full withdrawal). Additionally, the PP was deceptively electorally vulnerable prior to the attacks, and the gap had been closing steadily prior to the close of opinion polls days earlier. The unpredictable ways in which the attacks affected the election do not conform to the dominant narrative and do not fit into a strategic frame for global terrorism. There is little reason to believe the impact is replicable.
Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers, 51 Harv. Int’l L.J. 113 (2010)
The international regime of responsibility for the human rights violations of UN peacekeepers up to the time of writing was divided and wrongheaded. This paper provides a comprehensive critical analysis of that regime. I argue that both the United Nations and troop-contributing states are subject to human rights law, including the fundamental duty to remedy human rights violations for which they are responsible, and that these duties apply extraterritorially in many peacekeeping contexts. Contrary to legal authorities up to the time of writing, I then argue that the determination of whether the troop-contributing state or the United Nations should be held responsible in a given context must driven by an assessment of which entity held the levers of control most likely to be effective in lawfully preventing the wrong in question. To that end, I propose a five-category framework of responsibility. This framework expands the responsibility of troop-contributing states, and advocates the joint responsibility of the state and the United Nations in a significantly greater number of contexts than had been recognized by courts and other authorities up to the time of writing. The proposed regime maximizes the avenues to remedy for victims without prejudice to the fairness and effectiveness of a framework that accurately locates those most responsible. I conclude by addressing several legal and policy objections.
This article was cited by, and its core proposal adopted in, the landmark cases: Mustafic-Mujic v. the Netherlands, Case No. 200.020.173/01, Hague Court of Appeal (2011); Nuhanovic v. the Netherlands, Case No. 200.020.174/01, Hague Court of Appeal (2011).
Finding Balance in the Attribution of Liability for the Human Rights Violations of U.N. Peacekeepers: A Response to the Responses of Paust and Rowe, 51 Harv. Int’l L.J. Online 105 (2010)
This essay replies to essays by Professor Jordan Paust and Professor Peter Rowe, responding to Translating the Standard of Effective Control into a System of Effective Accountability.
The International Criminal Court, Article 79, and Transitional Justice: The Case for an Independent Trust Fund for Victims, 28 Wis. Int’l L. J. 234 (2010)
Contrary to the rulings of the International Criminal Court’s Pre-Trial Chamber, the Trust Fund for Victims provided for in the ICC’s statute should be freed to pursue independent projects without any obligation to maintain a reserve for topping up Court-ordered reparations payments. Indeed, it should use all of its resources in pursuit of reparative projects that benefit and acknowledge those victims that are unlikely to be reached by the ICC’s reparations process. Court-ordered reparations should be funded only by the wealth of the criminal in question and by other Court-generated resources, such as fines and forfeitures. This approach would better realize the imperatives of transitional justice, better conform to the requirements of modern fundraising, and better align the distribution of institutional responsibilities under the ICC regime with the distribution of institutional competences.
War and Peace in Rwanda, in Stopping Wars and Making Peace: Studies in International Intervention 71 (Kristen Eichensehr & W. Michael Reisman eds., 2009)
This chapter describes why and how extensive peacemaking efforts in the Rwandan civil war failed, leading ultimately to the genocide of 1994, and draws general lessons for negotiating peace in internal armed conflict. Early efforts at peace were doomed because the parties preferred to continue fighting rather than to compromise on their core, incompatible aims. The failure of the international process in Arusha in 1992-1993 was more complex. At its core were three factors. First, democratization pressures from donors and international financial institutions forced the Habyarimana government to introduce coalition partners at the same time as it was trying to wage war, manage a collapsing economy, and negotiate with the hostile insurgents. This created a sense of desperation in the old regime and meant that the delegation at Arusha represented neither key leaders in the government nor the Rwandan military. Second, the Arusha protocols on transitional government and the integration of the armed forces ignored the demands of the old ruling oligarchy. The insurgency’s military superiority and the composition of the government’s negotiating team had secured the rebels a victor’s agreement, but the old regime’s enduring institutional powers gave it the capacity to spoil the process of implementation. Third, despite endorsing a victor’s agreement for the rebels, the United Nations failed to deploy a robust peacekeeping force capable of containing the ruling party spoilers.
Crime Beyond Punishment, 15 U.C. Davis J. Int’l L. & Pol’y 189 (2009)
The strong preference for criminal punishment for mass atrocities performed by state actors against their own citizens (inspired, in large part, by the prosecutions at Nuremberg and given contemporary institutional heft by the slew of ad hoc tribunals, domestic prosecutions of former leaders, and the ICC), has yet to be given a robust and coherent philosophical basis. This article calls into question the various justifications attempted by its advocates. Assessing the situation from the perspective of each of the leading philosophical justifications of punishment, I argue that four unique features of the atrocity and post-atrocity context – the use of state power to perpetrate the wrongs, the fact that state atrocity will be punished only in a victor’s court or a foreign forum, atrocity’s defiance of our ordinary conceptions of justice or desert, and the massive numbers of perpetrators and accomplices involved in atrocity – render punishment in that scenario uniquely philosophically problematic. Efforts to deal with atrocity through a combination of truth commissions (or other public inquiries), material and symbolic reparations, and reform of the public educational curriculum are not merely second-best substitutes, or supplements to criminal justice, but are potentially superior alternatives that better achieve the ends that supposedly motivate the punishment model.
Book Note, 33 Yale J. Int’l L. 513 (2008) (reviewing Gideon Boas, The Milosevic Trial (2007)).
Combating Sexual Harassment at the Workplace (2005) [co-authored with Keya Jayaram]
A non-academic handbook articulating the implications of the landmark 1997 Vishaka v. Rajasthan judgment by the Indian Supreme Court for women’s rights NGOs, victims of sexual harassment, and employers.
September 18 2014, 4:30 PM, Dodds Auditorium, Robertson Hall
September 19 2014,
November 23 2014, By invitation only