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Full-Text Articles in Law
Interpretation Catalysts In Cyberspace, Rebecca Ingber
Interpretation Catalysts In Cyberspace, Rebecca Ingber
Faculty Scholarship
The cybersphere offers a rich space from which to explore the development of international law in a compressed time frame. This piece examines the soft law process over the last decade of the two Tallinn Manuals – handbooks on the international law of cyber warfare and cyber operations – as a valuable lens through which to witness the effects of “interpretation catalysts” on the evolution of international law. In prior work, I identified the concept of interpretation catalysts – discrete triggers for legal interpretation – and their influence on the path that legal evolution takes, including by compelling a decision-making …
Book Review Of The Verdict Of Battle: The Law Of Victory And The Making Of Modern War, Robert D. Sloane
Book Review Of The Verdict Of Battle: The Law Of Victory And The Making Of Modern War, Robert D. Sloane
Faculty Scholarship
This is a brief review of The Verdict of Battle: The Law of Victory and the Making of Modern War (2012), by James Q. Whitman, a remarkably erudite and original contribution to scholarship on military history and the law of war. It sketches the work’s compelling historical arguments and then critiques its (comparatively modest) polemical dimensions and normative conclusions.
Law And Ethics For Autonomous Weapon Systems: Why A Ban Won't Work And How The Laws Of War Can, Kenneth Anderson, Matthew C. Waxman
Law And Ethics For Autonomous Weapon Systems: Why A Ban Won't Work And How The Laws Of War Can, Kenneth Anderson, Matthew C. Waxman
Faculty Scholarship
Public debate is heating up over the future development of autonomous weapon systems. Some concerned critics portray that future, often invoking science-fiction imagery, as a plain choice between a world in which those systems are banned outright and a world of legal void and ethical collapse on the battlefield. Yet an outright ban on autonomous weapon systems, even if it could be made effective, trades whatever risks autonomous weapon systems might pose in war for the real, if less visible, risk of failing to develop forms of automation that might make the use of force more precise and less harmful …
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 …
Prologue To A Voluntarist War Convention, Robert D. Sloane
Prologue To A Voluntarist War Convention, Robert D. Sloane
Faculty Scholarship
This Article attempts to identify and clarify what is genuinely new about the ¿new paradigm¿ of armed conflict after the attacks of September 11, 2001. Assuming that sound policy counsels treating certain aspects of the global struggle against modern transnational terrorist networks within the legal rubric of war, this Article stresses that the principal challenge such networks pose is that they require international humanitarian law, somewhat incongruously, to graft conventions - in both the formal and informal senses of that word - onto an unconventional form of organized violence. Furthermore, this process occurs in a context in which one diffuse …
Hamdan Confronts The Military Commissions Act Of 2006, George P. Fletcher
Hamdan Confronts The Military Commissions Act Of 2006, George P. Fletcher
Faculty Scholarship
In 2006 the law of war experienced two major shock waves. The first was the decision of the Supreme Court in Hamdan, which represented the first major defeat of the President's plan, based on an executive order of November 2001, to use military tribunals against suspected international terrorists. The majority of the Court held the procedures used in the military tribunal against Hamdan violated common article three of the Geneva Conventions. A plurality offour, with the opinion written by Justice Stevens, based their decision as well on afar-reaching interpretation of the substantive law of war. They held that conspiracy …
The Law Of War And Its Pathologies, George P. Fletcher
The Law Of War And Its Pathologies, George P. Fletcher
Faculty Scholarship
War is with us more than ever. This is true despite the efforts of the United Nations Charter to ban the concept of war from the vocabulary of its member states. The preferred term is armed conflict. True, the Charter does refer to the Second World War, but apart from this concession to historically entrenched labels, the W word appears only once-when the Charter refers to ridding the world of the scourge of war. The Geneva Conventions, adopted a few years later, follow the same pattern. George Orwell could not be more amused. We change the vocabulary and think we …
From Rethinking To Internationalizing Criminal Law, George P. Fletcher
From Rethinking To Internationalizing Criminal Law, George P. Fletcher
Faculty Scholarship
Writing Rethinking Criminal Law ("Rethinking") was a gamble. No one had ever written a serious book on comparative criminal law – in English or in any other language. No one had ever addressed English-speaking readers with the argument that some other system of legal thought – espoused by a nation defeated in a major war just thirty years before – had a superior literature on criminal law and a more refined way of thinking about the structure of criminal offenses. No one had tried to present the system of criminal law as though it were a species of …
On Justice And War: Contradictions In The Proposed Military Tribunals, George P. Fletcher
On Justice And War: Contradictions In The Proposed Military Tribunals, George P. Fletcher
Faculty Scholarship
The autumn of our anguish has passed, and we are still confused about how to describe the use of military force in Afghanistan. We are torn between using the language of justice and the language of war. Is this an attack by private individuals, a case of a single terrorist writ large? If the mass killings of September 11 are the crimes of individuals – Islamic fundamentalist versions of Timothy McVeigh – then we can think about arresting them and bringing them to "justice." The mantra of the Bush team, "bringing justice to them and them to justice," has seeped …