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Puzzles Of Proportion And The Reasonable Military Commander: Reflections On The Law, Ethics, And Geopolitics Of Proportionality, Robert D. Sloane
Puzzles Of Proportion And The Reasonable Military Commander: Reflections On The Law, Ethics, And Geopolitics Of Proportionality, Robert D. Sloane
Faculty Scholarship
This article offers modest reflections on jus in bello proportionality. It suggests that the law of armed conflict (LOAC) build on the only consensus legal standard that exists: that of the good-faith reasonable military commander. The difficulty — here, as with any reasonableness standard — is to identify factors that realistically can, and legally should, guide adherence to it and to consider the objective and subjective dimensions of judgments under the standard. Part II scrutinizes the content and status of Additional Protocol I’s (API) canonical definition of proportionality. It analyzes its text and context to bring out the extent to …
Untangling Belligerency From Neutrality In The Conflict With Al-Qaeda, Rebecca Ingber
Untangling Belligerency From Neutrality In The Conflict With Al-Qaeda, Rebecca Ingber
Faculty Scholarship
The legal architecture for the conflict with al-Qaeda and the Taliban has been the subject of extensive scrutiny through two presidential administrations, a decade of litigation, and multiple acts of Congress. All three branches of the federal government have to date defined the framework as one of armed conflict, and have looked to the laws of war as support for expansive authorities concerning the use of force, including detention. Yet the laws of war do not merely contemplate broad state authority; they also provide critical and non-derogable constraints on that authority. Nevertheless considerable debate rages on with respect to whether …
The Cost Of Conflation: Preserving The Dualism Of Jus Ad Bellum And Jus In Bello In The Contemporary Law Of War, Robert D. Sloane
The Cost Of Conflation: Preserving The Dualism Of Jus Ad Bellum And Jus In Bello In The Contemporary Law Of War, Robert D. Sloane
Faculty Scholarship
Much post-9/11 scholarship asks whether modern transnational terrorist networks, the increasing availability of catastrophic weapons to nonstate actors, and other novel threats require changes to either or both of the two traditional branches of the law of war: (i) the jus ad bellum, which governs resort to war, and (ii) the jus in bello, which governs the conduct of hostilities. Scant recent work focuses on the equally vital question whether the relationship between those branches-and, in particular, the traditional axiom that insists on their analytic independence-can and should be preserved in contemporary international law. The issue has been largely neglected …
The Incident At Cavalese And Strategic Compensation, Robert D. Sloane
The Incident At Cavalese And Strategic Compensation, Robert D. Sloane
Faculty Scholarship
In 1953, the United States ratified the NATO Status of Forces Agreement. The drafters foresaw that the presence and training of foreign military forces within and between their territories would probably, if not inevitably, cause injury to civilians, giving rise to claims that, if not settled quickly and satisfactorily, could spark incidents disruptive to their cooperation in mutual defense. To this end, the SOFA established a jurisdictional regime designed to minimize the political friction these incidents threatened to generate, by providing prompt and manifestly fair settlement procedures. This result was vital to NATO's operations, for, in democratic host states, popular …