Law Commons^™

Prosecuting Members Of The U.S. Military For Wartime Environmental Crimes, Eric Talbot Jensen, James J. Teixeira Jr.

Faculty Scholarship

War is inherently damaging to the environment. Though these deleterious actions are often attributed to "states" during times of armed conflict, they are normally the result of military operations conducted by members of the military who are carrying out orders from military superiors. While many have proposed systemic changes that affect how states can or should be held responsible, few have commented on the process of holding individual military personnel or commanders responsible for battlefield acts of environmental damage. This paper argues that there are sufficient laws and regulations in place to hold individuals and commanders in the United States …

Occupation Failures And The Legality Of Armed Conflict: The Case Of Iraqi Cultural Property, Mary Ellen O'Connell

The Ohio State University Moritz College of Law Working Paper Series

US Secretary of Defense Donald Rumsfeld dismissed the looting of the Iraqi National Museum in April 2003 by remarking, “stuff happens.” In doing so, he gave an early indication that in planning to invade Iraq, the Bush Administration failed to take seriously the legal obligations of an occupying power. Occupying powers have a variety of binding legal obligations, including obligations to stop looting, protect cultural property, and protect persons in detention. Yet, the Administration sent a wholly inadequate force to fulfill those obligations, and, more seriously, the force received no direct and imperative orders to do so. As a result, …

Attacking Military Environmental Cleanup On Foreign Soil: Should Cercla Principles Apply?, Randon H. Draper

Buffalo Environmental Law Journal

No abstract provided.

Foreword: Rethinking Reconstruction After Iraq, Diane Marie Amann

Scholarly Works

Foreword to a symposium held on March 12, 2004 by the UC Davis Journal of International Law & Policy. Entitled “Rethinking Reconstruction After Iraq,” the symposium was designated a regional meeting of the American Society of International Law and the American Branch of the International Law Association, and further was sponsored by the American National Section of the International Association of Penal Law and the International Human Rights Committee of the Bar Association of San Francisco.

The Inclusive Command: Voluntary Integration Of Sexual Minorities Into The U.S. Military, Jennifer Gerarda Brown, Ian Ayres

Michigan Law Review

Many opponents of gays in the military will accept the proposition that gay and lesbian soldiers, most of them closeted, have served their country bravely and well. General Colin Powell has referred to gay service members as "proud, brave, loyal, good Americans" who have "served well in the past and are continuing to serve well." General H. Norman Schwartzkopf agrees: "homosexuals have served in the past and have done a great job serving their country." What these opponents find harder to accept is the proposition that heterosexual people can effectively serve their country if openly gay people are in the …

Anne Orford, Reading Humanitarian Intervention: Human Rights And The Use Of Force In International Law, Lisa Danish

Buffalo Human Rights Law Review

No abstract provided.

The Patriot Act And Bush's Military Tribunals: Effective Enforcement Or Attacks On Civil Liberties?, John Lichtenthal

Buffalo Human Rights Law Review

No abstract provided.

The Semantics Of The Guantanamo Bay Inmates: Enemy Combatants Or Prisoners Of The War On Terror?, Anne E. Joynt

Buffalo Human Rights Law Review

No abstract provided.

Who Has The Body? The Paths To Habeas Corpus Reform, Cary H. Federman

Department of Justice Studies Faculty Scholarship and Creative Works

The purpose of this article is to place the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 within a political and historical framework that describes the effort by the Supreme Court and various interested parties to restrict prisoners’ access to the federal courts by way of habeas corpus. Of principal concern here is how an act of terrorism against the United States provides an opportunity for Congress to restrict death row prisoners from obtaining habeas corpus review. Along with an analysis of Supreme Court decisions, three attempts to limit federal habeas corpus review for state prisoners from the late …

A Case Study In The Banning Of Political Parties: The Pan-Arab Movement El Ard And The Israeli Supreme Court, Ron Harris

ExpressO

Attempts to outlaw political groups that are alleged to approve the use of violence, to limit the expression of views that challenge the core values of democratic nation-states, and to ban radical, separatist, or religious political parties are more widespread in recent years than at any other time since 1945. They gave rise in the last few years to litigation in Constitutional Courts and Supreme Courts in Spain, Germany, Turkey, France, Israel, and Latvia, as well as in the European courts.

The present article tells the story of the encounter in the years 1959-1965 between the Pan-Arab national movement El …

International Legal Compliance: Surveying The Discipline, William C. Bradford

ExpressO

No abstract provided.

Handling The Truth, Kenneth Lasson

All Faculty Scholarship

No abstract provided.

In The Minds Of Men: A Theory Of Compliance With The Laws Of War, William C. Bradford

ExpressO

Whether, and, if so, why states elect to comply with international law are now the most central questions within the international legal academy. A skein of theories has been woven over the last decade to explain and predict state compliance, and a number of factors, including, inter alia, a desire to generate reciprocity, an interest in reducing transaction costs, normative commitments, domestic considerations, the degree of domestic incorporation of international legal regimes, reputational concerns, and fear of punishment, are purported to be causally linked.

However, as the study of international legal compliance ["ILC"] has matured, intramural divisions have been compounded …

Is "Don't Ask, Don't Tell" Unconstitutional After Lawrence? What It Will Take To Overturn The Policy, Diane H. Mazur

UF Law Faculty Publications

There can be a certain politeness to legal challenges to "Don't Ask, Don't Tell," the congressional policy that attempts - fitfully, incompletely, and arbitrarily - to exclude gay citizens from both the responsibilities and privileges of military service.' We consider whether the military has articulated a "rational basis" for the policy – some explanation of the military's belief that it is at least rational (as opposed to irrational) to classify servicemembers as straight or gay and accept or reject them accordingly, all in the interest of military effectiveness. We accept the fact that judges assume there is a need for …

The War On Cyberterror: Why Australia Should Examine The U.S. Approach To Critical Infrastructure Protection, Elizabeth Tutmarc

Washington International Law Journal

As the global community focuses on detecting and fighting terrorism, defense strategists have identified the vulnerability of certain cybersystems. Traditional methods of defense and warfare, however, often do not apply to new technologies. Thus the cybercommunity is developing new standards for protecting computer resources against terrorist attack. From the perspective of national governments, much attention has been paid to the importance of secure "critical infrastructure." This category of computer-dependent resources includes sectors vital to the smooth and orderly operation of public society, such as transportation, communications, and food production. These sectors are becoming increasingly dependent on computers to function, and …

The Japanese Law Concerning The Special Measures On Humanitarian And Reconstruction Assistance In Iraq: Translator's Introduction, Mika Hayashi

Washington International Law Journal

The legal framework concerning Japan's physical contribution to international peace and security through the presence of its Self-Defense Forces abroad underwent ad hoc changes twice since the beginning of the Twenty-First Century. The first change was brought about by the September 11 terrorist attacks in 2001 and the second was the result of the war in Iraq in 2003. In both cases, Japan enacted laws that specifically enabled the Self-Defense Forces to operate abroad: the Anti-Terrorism Special Measures Law and the Law concerning the Special Measures on Humanitarian and Reconstruction Assistance in Iraq, respectively. The latter and most recent legislation, …

The Roadmap For Failure: Israeli And Palestinian Discountenance And Misunderstanding, John J. Marciano

ExpressO

As tensions rise with the assassination of key Hamas figures, the situation in Israel and the Occupied Territories call out for committed, reasoned action. In the past, the peace process has consisted of half-hearted attempts to pacify both the Israeli and Palestinian populaces. This is exemplified by the recent Roadmap for peace, which was supported by the United States.

However, the lack of true dedication among the players has arguably resulted in crimes against humanity on both sides. The previous peace plans fail to recognize this, and have perpetuated the violence with cookie-cutter approaches that are not closely tailored to …

Human Rights And The Neo-Conservative Project: What’S Not To Like?, Tom J. Farer

Human Rights & Human Welfare

Hegemony, as neo-cons argued in the 1990s, is not the mere possession of dominating power but also the will to use it on behalf of a coherent project. In the Clinton years, hegemony was only latent. The catastrophe of September 2001 created the circumstances in which it could be made real. To what end? There is not yet a single comprehensive statement of the neoconservative project and its premises.

This paper may be freely circulated in electronic or hard copy provided it is not modified in any way, the rights of the author not infringed, and the paper is not …

From The Nuremberg Charter To The Rome Statute: Defining The Elements Of Crimes Against Humanity, Mohamed Elewa Badar

San Diego International Law Journal

The purpose of this study is to examine the past and present contours of the prohibition of "crimes against humanity", analyzing and scrutinizing the essential elements of this crime, with a view to obtaining and drawing together basic criteria that could eventually guide the adjudication of this offence. Furthermore, this clarification of "crimes against humanity" is particularly timely with respect to the soon functioning International Criminal Court (ICC).

Military Detention And The Judiciary: Al Qaeda, The Kkk And Supra-State Law, Wayne Mccormack

San Diego International Law Journal

This Article touches on the choice of whether to use the language and tools of war or the language and tools of law enforcement in responding to terrorism. The principal focus, however, is on the limited issue of judicial review and military detentions. The Article reviews the case law created on this subject during the Civil War and World War II. Historical considerations are found by the author to be relevant and helpful in solving the incoherency of current legal responses to terrorism. For instance, indefinite military detention is not coherent with either the international law concept of violations of …

Reforming Federal Habeas Review Of Military Convictions: Why Aedpa Would Improve The Scope And Standard Of Review, John K. Chapman

Vanderbilt Law Review

The writ of habeas corpus is a collateral remedy available to prisoners who have exhausted all available appellate remedies. Habeas corpus, which literally means "to have or produce the body," involves a court order directing the custodian of a prisoner to bring the prisoner before the court in order to assess the validity of the prisoner's confinement. The importance of habeas corpus in the federal system has been recognized since the drafting of the Constitution and its historical roots trace back as far as the 12th Century in England. It is a procedure designed to protect individuals by forcing the …

The Media At The Tip Of The Spear, Kevin A. Smith

Michigan Law Review

Due largely to the first widespread availability of the telegraph, through which breaking stories could be transmitted to the presses in moments, the debut of the American war correspondent occurred during the Civil War. From their beginning, American war correspondents have frequently "embedded" with the troops on whom they reported. General Grant, for example, allowed his favorite New York Herald reporter to travel with his entourage, and even used him as a personal messenger. Reporters proved an important component of the war effort for both the North and the South. Papers on both sides proved willing providers of propaganda to …

Reveille For Congress: A Challenge To Revise Rape Law In The Military, Alexander N. Pickands

William & Mary Law Review

No abstract provided.

A War Of Words (In The Hype Of The Palestinian-Israeli Conflict, The Line Between Reality And Propaganda Can Easily Confuse Even The Most Objective Foreign Correspondent), Kenneth Lasson

All Faculty Scholarship

Most journalists look at their work and see professional pride, not personal prejudice. Even many of those who do the biased bidding of their employers could be characterized as decent, fair-minded, hard-working. In the Middle East today, however, where the conflict is still largely a war of words, reporters may often miss the forest for the trees. While such a result could be caused by the inherent limitations of their craft - constant deadlines, sometimes severe space restrictions, the pressure to produce dramatic stories - when their inherent political bias are combined with ignorance of broad historical perspectives, the result …

Judging Terror In The "Zone Of Twilight" Exigency, Institutional Equity, And Procedure After September 11, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Front Matter And Table Of Contents

University of Miami National Security & Armed Conflict Law Review

No abstract provided.

Masthead

University of Miami National Security & Armed Conflict Law Review

No abstract provided.

Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf

ExpressO

No abstract provided.

Enemies Foreign And Domestic: A Historical Look At The Use Of Military Commissions By The United States And The Case For Using Them Against American Citizens, James T. Barnett

ExpressO

An historical look at the use of Military Commissions by the United States of America. This article examines the constitutional powers to use Military Commissions as well as the limitations on such commissions.

It also examines the use of these commissions against American citizens and argues that they are proper in certain circumstances. The limitations set out by the Supreme Court are eroded to the point of being void.

The article goes on to examine the cases of John Walker Lindh and Yasser Hamdi to show that Military Commissions are the proper forum for such cases.

A Nazi War Criminal As A Standard Bearer For Gender Equality? The Strange Saga Of Johann Breyer, Michael M. Pavlovich

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.