Law Commons^™

Lawfulness Of And The Case For Combat Drone Against Terrorism, Heeyong D. Jang

Heeyong D Jang

The proliferation and use of unmanned combat aerial vehicles (UCAVs) since the September 11 attack triggered lively academic debates. The discussion thus far, often tainted by illegitimate ad bellum-in bello conflation, falls short of justifying the lawfulness and effectiveness of combat drones. Combat drones can successfully discharge its obligation under the four-pronged jus in bello test – distinction, proportionality, necessity, and humanity. Furthermore, this state-of-the-art technology helps to achieve five important policy objectives of fighting asymmetric warfare, combating insurgents who disregard the existing law, deterring further acts of terrorism, dodging improvised explosive devices, and avoiding more costly military actions.

The Military Response To Criminal Violent Extremist Groups: Aligning Use Of Force Presumptions With Threat Reality, Geoffrey S. Corn

Geoffrey S. Corn

Debates over the permissible authority to use force against emerging non-state threats are consistently dictated by a binary legal paradigm: either armed conflict is recognized permitting status based targeting or law enforcement conduct based use of force norms must be respected. This paradigm has driven an expansion of the threats characterized by states as falling within the scope of non-international armed conflicts, a trend that has produced substantial controversy. At the same time, in many states organized criminal groups are creating unprecedented challenges to government authority by utilizing widespread and indiscriminate violence to sow the seeds of chaos and demonstrate …

Kill-Lists And Accountability, Gregory S. Mcneal

Gregory S. McNeal

This article is a comprehensive examination of the U.S. practice of targeted killings. It is based in part on field research, interviews, and previously unexamined government documents. The article fills a gap in the literature, which to date lacks sustained scholarly analysis of the accountability mechanisms associated with the targeted killing process. The article makes two major contributions: 1) it provides the first qualitative empirical accounting of the targeted killing process, beginning with the creation of kill-lists extending through the execution of targeted strikes; 2) it provides a robust analytical framework for assessing the accountability mechanisms associated with those processes. …

Do The Hostilities In Syria Amount To An Armed Conflict Not Of An International Character?, Afeef T. Nessouli

Afeef T Nessouli

Applying International Humanitarian Law to Syria is important because it means that hostilities can be controlled. Two considerations have proven to be particularly important to those courts and tribunals forced to work with the uncertainty about the existence of an armed conflict not of an international character: “the intensity of the conflict and the organization of the parties to the conflict.” Several other considerations can provide useful guidance for understanding whether violence or hostilities have progressed beyond internal disturbances, like whether the non-state actor: 1) has an organized military force; 2) has an authority responsible for its actions; 3) acts …

Mohammed Jawad And The Failure Of The Guantanamo Military Commissions, David J. Frakt

David J Frakt

In order to justify outrageous treatment of detainees at Guantanamo during the early years of the “Global War on Terror” it was necessary to portray the detainees as hardened terrorist criminals. But it was not enough to simply label them as such; the Bush Administration knew that in order to maintain popular support for their detention policies, they would have to convict a critical mass of the detainees in some sort of legal proceedings.

The problem for the Bush Administration was that few of the detainees were actually involved in any terrorist criminal activity. Fewer still had committed any offenses …

Reciprocity And The Law Of War, Sean Watts

Sean Watts

This article offers a detailed examination of how the principle of reciprocity operates within the international law of war. Tracing the historical development and application of the law, the article demonstrates that the existing law of war is best characterized as a reciprocity-contingent set of rules, limited in application to peer competitors. The article identifies first an obligational component of reciprocity, restricting operation of the law to contests between parties with parallel legal commitments. Second, the article identifies an observational component to the principle of reciprocity, permitting parties to suspend or terminate observance when confronted with breaches of the law. …

Untying The Gordian Knott: A Proposal For Determing Applicability Of The Laws Of War To The War On Terror, Geoffrey S. Corn, Eric T. Jensen

Geoffrey S. Corn

For the past six years, one of the most difficult questions related to law and war has been when do the laws of war apply to the war on terror? From 1949 through 2001, a state-centric law triggering paradigm evolved into almost an article of faith among the international legal and military community. The events of September 11th, 2001 however threw this paradigm into disarray. Since that time, the United States has struggled to articulate, and in many judicial challenges defend, how it could invoke the authorities of war without accepting the obligations of the law regulating war. Unfortunately, responding …

Unconstitutional Detention Of Nonresident Aliens: Revisiting The Supreme Court’S Treatment Of The Law Of War In Hamdi V. Rumsfeld, Alec D. Walen, Ingo Venzke

Alec D Walen

This article deals with the detention of nonresident aliens in the “war on terror.” Its central theses are three. First, nonresident aliens under the power of the U.S. benefit from constitutional protections that prohibit the U.S. from depriving them of liberty without due process of law. In making the case for this we expose a widespread misreading of Johnson v. Eisentrager, according to which the Supreme Court has “emphatically” rejected the claim that nonresident aliens benefit from constitutional protections of their liberty. There is, as a matter of fact, no settled case law on this issue, but the underlying constitutional …

Leaving Guantanamo: The Law Of International Detainee Transfers, Robert Chesney

Bobby Chesney

This article provides a comprehensive review of legal issues--constitutional, statutory, regulatory, and international (IHRL and IHL)--that arise when a noncitizen held as an enemy combatant at Guantanamo requests judicial oversight of a decision to transfer that person back to their country of citizenship (a request that has been made on numerous occasions based on the detainee's fear that he will be tortured upon such a transfer). The article includes extensive discussions of the interplay of international and domestic legal authorities, as well as an analysis of the Geneva Convention status of detainees.

The Laws Of War In The Pre-Dawn Light: Institutions And Obligations In Thucydides’ Peloponnesian War, Steve Sheppard

Steve Sheppard

This Essay, in honor of Oscar Schachter, discusses Thucydides’ account of the Peloponnesian War, not only glimpsing into the events surrounding the conflict but also considering how the sparring greek city-states understood and manifested laws of war. This article describes numerous customs, practices, and procedures including respect for truces, ambassadors, heralds, trophies, and various forms of neutrality the ancients adhered to during times of conflict. The greek city-states and their warriors recognized and enforced obligations concerning a city-state’s right to war (jus ad bellum) and conduct in war (jus in bello). While the ancients’ laws of war were always recorded …

Passion And Nation: War, Crime, And Guilt In The Individual And The Collective, Steve Sheppard

Steve Sheppard

Riffing off of George Fletcher's theory of Romanticism and war, the article reviews Fletcher's arguments, which received derisive reviews during the War against Iraq in 2003. The article takes Fletcher's approach seriously in considering the problem of war as a Romantic impulse, and the difficulties caused by that understanding. The article then derives arguments on the limits of the laws of war to apply to military actions against terrorism. The article considers the nature of collective guilt as a mitigating element in the crimes of one individual, and it considers the nature of non-state enemies in war. This last point …