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Contorting Common Article 3, Michael A. Newton
Contorting Common Article 3, Michael A. Newton
Vanderbilt Law School Faculty Publications
This short Essay describes the circularity of support between the ICRC and the Pre-Trial Chambers of the ICC. Its successive sections describe the problematic potential of extending the substantive coverage of Common Article 3 to encompass members of the same armed group who commit criminal acts against one another.' In particular, the Revised Commentary fails to address the due process ramifications of an enlarged Common Article 3, even as the development of the text documented by the readily available negotiating record warrants an alternative understanding. Lastly, the ICRC position could indicate a radical shift in the very design of the …
Flying Into The Future: Drone Warfare And The Changing Face Of Humanitarian Law, Michael A. Newton
Flying Into The Future: Drone Warfare And The Changing Face Of Humanitarian Law, Michael A. Newton
Vanderbilt Law School Faculty Publications
Before we consider the specifics of drone warfare, we must remember two predicate points. Firstly, the discipline of international criminal law has never been healthier as the era of accountability is irreversibly underway. While the challenges of administering justice in the midst of profound political and personal passions remain, there is no current shortage of young and inspired advocates who wish to contribute. Furthermore, they do so against the backdrop of a developed discipline. It cannot be forgotten that the discrete discipline that we term international criminal law, and that many of us teach in our law schools, has taken …
Illustrating Illegitimate Lawfare, Michael A. Newton
Illustrating Illegitimate Lawfare, Michael A. Newton
Vanderbilt Law School Faculty Publications
Lawfare that erodes the good faith application of the laws and customs of warfare is illegitimate and untenable. This essay outlines the contours of such illegitimate lawfare and provides current examples to guide practitioners. Clearly addressing the terminological imprecision in current understandings of lawfare, this essay is intended to help prevent further erosion of the corpus of jus in bello. Words matter, particularly when they are charged with legal significance and purport to convey legal rights and obligations. When purported legal “developments” actually undermine respect for the application and enforcement of humanitarian law, they are illegitimate. Although the laws and …
Counterinsurgency And Constitutional Design, Ganesh Sitaraman
Counterinsurgency And Constitutional Design, Ganesh Sitaraman
Vanderbilt Law School Faculty Publications
Few think of counterinsurgency as linked to constitutional design. Counterinsurgency is bottom-up; constitutional design is top-down. Counterinsurgency is military; constitutional design is political-legal. Counterinsurgency is temporary, transitional, and tactical, designed to stabilize society; constitutional systems come later and are permanent, constant, and normal. But the conflicts in Iraq and Afghanistan demonstrate the fallacy of these perceptions. Counterinsurgency and constitutional design took place simultaneously, they required high-level political agreement and ground-level acceptance, and they involved politics, law, and security. Iraq and Afghanistan demonstrate that these two enterprises are not different and disconnected, but rather intricately interconnected and complementary. This Note explores …
Modern Military Necessity: The Role & Relevance Of Military Lawyers, Michael A. Newton
Modern Military Necessity: The Role & Relevance Of Military Lawyers, Michael A. Newton
Vanderbilt Law School Faculty Publications
Modern warfare presents an array of legalistic overtones that require the presence and participation of attorneys of exceptional courage and breadth of expertise in demanding and austere conditions. Military lawyers today must confront complex missions and competing operational demands in representing the needs of operational commanders. The legal dimension of conflict has at times overshadowed the armed struggle between adversaries as the nature of conflict itself has changed. The overall mission will often be intertwined with political, legal, and strategic imperatives that cannot accomplished in a legal vacuum or by undermining the threads of legality that bind diverse aspects of …