Law Commons^™

Guantanamo And The End Of Hostilities, Eric Talbot Jensen

Faculty Scholarship

Detainees in the War on Terror have been at Guantanamo Bay for over a decade. The justification for these detentions has been, at least in part, the on-going hostilities in Afghanistan. However, President Obama’s announcement in his 2013 State of the Union address that “By the end of [2014] our war in Afghanistan will be over” may undercut the continuing detention authority for at least some of these Guantanamo detainees. This paper analyzes the legal doctrine of release and repatriation in light of President Obama’s announcement and concludes that the President’s determination that hostilities have concluded between specific Parties to …

Future War, Future Law, Eric Talbot Jensen

Faculty Scholarship

Advancing technology will dramatically affect the weapons and tactics of future armed conflict, including the “places” where conflicts are fought, the “actors” by whom they are fought, and the “means and methods” by which they are fought. These changes -- including continuing cyber conflict, increased use of autonomous weapon systems, the development of nanotechnology, and evolving virology capabilities -- will stress even the fundamental principles of the law of armed conflict, or LOAC. While it is likely that the contemporary LOAC will be sufficient to regulate the majority of future conflicts, the international community must be willing to evolve the …

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.

Notice And An Opportunity To Be Heard Before The President Kills You, Richard Murphy, Afsheen John Radsan

Faculty Scholarship

The United States identifies particular people as especially dangerous members of al Qaeda, the Taliban, or associated forces, and then kills them. Critics insist that this targeted killing is illegal; some go so far as to call it assassination. The drone strike that killed Anwar al-Awlaki, an American citizen, generated furious criticism for purportedly violating his due process rights.

In spring 2013, President Obama responded in a wide-ranging speech on national security policy. On the topic of drones, he stated that terrorists are targeted only if they constitute “a continuing and imminent threat to the American people.” He announced that …

The Role Of Peacebuilding And Conflict Management In A Future American Grand Strategy: Time For An “Off Shore” Approach?, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Anticipatory Self-Defense And The Israeli-Iranian Crisis: Some Remarks, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Top Ten Reasons Sen. Gillibrand’S Bill Is The Wrong Solution To Military Sexual Assault, Charles J. Dunlap Jr.

Faculty Scholarship

Over the years Congress has made plenty of efforts to “improve” the military justice system for a variety of reasons, but few matters have generated more offerings than did the Pentagon’s report this past spring of an estimated 26,000 victims of “unwanted sexual contacts” in the armed forces. Some initiatives to address this very critical problem, like the bipartisan effort of Senators Barbara Boxer and Lindsey Graham, look promising; others, not so much.

However, none are as misguided as Sen. Kirsten Gillibrand’s proposal. Indeed, it is hard to think of a proposal that could be more wrong for the military, …

On “The Lure Of Strike”, Charles J. Dunlap Jr.

Faculty Scholarship

This commentary is in response to the special commentary, “The Lure of Strike” by Conrad Crane published in the Summer 2013 issue of Parameters (vol. 43, no. 2).

Military Veterans, Culpability, And Blame, Youngjae Lee

Faculty Scholarship

Recently in Porter v. McCollum, the United States Supreme Court, citing “a long tradition of according leniency to veterans in recognition of their service,” held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during his sentencing for two murders amounted to ineffective assistance of counsel. The purpose of this article is to assess, from the just deserts perspective, the grounds to believe that veterans who commit crimes are to be blamed less by the State than offenders without such backgrounds. Two rationales for a differential treatment of military veterans who commit crimes are …

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 Invention Of A Human Right: Conscientious Objection At The United Nations, 1947-2011, Jeremy Kessler

Faculty Scholarship

The right of conscientious objection to military service is the most startling of human rights. While human rights generally seek to protect individuals from state power, the right of conscientious objection radically alters the citizen-state relationship, subordinating a state's decisions about national security to the beliefs of the individual citizen. In a world of nation-states jealous of their sovereignty, how did the human right of conscientious objection become an international legal doctrine? By answering that question, this Article both clarifies the legal pedigree of the human right of conscientious objection and sheds new light on the relationship between international human …

Regulating Resort To Force: Form And Substance Of The Un Charter Regime, Matthew C. Waxman

Faculty Scholarship

Much of the international legal debate about regulating force and self-defence takes place on a substantive axis, focusing on the scope of force prohibitions and exceptions. This article instead focuses on their doctrinal form, or modes of argumentation and analysis through which facts are assessed in relation to legal directives, to illuminate how many of the assumptions about substantive policy goals and risks tend to be coupled with other assumptions about the way international law operates in this field. It shows that the flexible, adaptable standards favoured by some states, scholars, and other international actors and the fixed rules and …

The Moral Responsibility Of Volunteer Soldiers, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Military Justice, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

The Paradoxes Of Restitution, Mark A. Edwards

Faculty Scholarship

Restitution following mass dispossession is often considered both ideal and impossible. Why? This article identifies two previously unnamed paradoxes that undermine the possibility of restitution.

First, both dispossession and restitution depend on the social construction of rights-worthiness. Over time, people once considered unworthy of property rights ‘become’ worthy of them. However, time also corrodes the practicality and moral weight of restitution claims. By the time the dispossessed ‘become’ worthy of property rights, restitution claims are no longer practically or morally viable. This is the time-unworthiness paradox.

Second, restitution claims are undermined by the concept of collective responsibility. People are sometimes …

The Legal And Ethical Limits Of Technological Warfare Symposium: Roundtable Discussion Transcript, Amos Guiora, Harry Soyster, David Irvine, Geoffrey S. Corn, James Carofano, Claire Finkelstein, Laurie Blank, Monica Hakimi, George R. Lucas, Trevor Morrison, Frédéric Mégret

Faculty Scholarship

This article is a transcript of a roundtable discussion from the symposium, The Legal and Ethical Limits of Technological Warfare, February 1, 2013, University of Utah, S.J. Quinney College of Law.

Syria, Threats Of Force, And Constitutional War Powers, Matthew C. Waxman

Faculty Scholarship

In this Essay, Professor Matthew Waxman argues that debates about constitutional war powers neglect the critical role of threats of war or force in American foreign policy. The recent Syria case highlights the President’s vast legal power to threaten military force as well as the political constraints imposed by Congress on such threats. Incorporating threats into an understanding of constitutional powers over war and peace upends traditional arguments about presidential flexibility and congressional checks – arguments that have failed to keep pace with changes in American grand strategy.

The Long-Term International Law Implications Of Targeted Killings Practices, Christof Heyns, Sarah Knuckey

Faculty Scholarship

One of the most crucial and enduring questions about “targeted killings” is: How will the currently expanding practices of singling out individuals in advance and eliminating them in other countries without accountability impact the established international legal system?

International law, since at least World War II, has developed various mechanisms to limit killing in general, including targeted killings. These take the form of vigorous protections for the right to life under human rights law; safeguards against the interstate use of force while permitting states to protect themselves where necessary; and aiming to strike a balance between the principles of humanity …