Law Commons^™

Operation Nation-Building: How International Humanitarian Law Left Afghanistan Open On The Operating Table, Nina Griscelli

University of Miami Law Review

Military campaigns often carry with them official names and underpinning objectives. In Afghanistan, these campaigns were known as Operation Enduring Freedom in 2001, and later, in 2015, as Operation Freedom Sentinel. In total, the United States and its allies remained in Afghan territory for 7,268 days, twenty years, in support of the “Global War on Terror.” Within that time, the democratic construction of a “free” Afghan society—also known as nation-building, regime change, or transformative military occupation—deeply transformed the status quo of the population. To the West, “Operation Nation-Building” became the most strategic and “hopeful alternative to the vision of the …

Revisiting Goldwater-Nichols: Why Making The Joint Staff A General Staff Will Improve Civilian Control Of The Military And Refine The Constitutional Balance Of War Powers, Michael D. Minerva

American University National Security Law Brief

As the United States has progressively become more involved globally since World War II, the U.S. military is being stretched beyond the professional military competency straining civilian control of the military. To remedy this, it is again time to revisit our national security structure, and adopt a General Staff in place of the Joint Staff. Following World War II and the destruction of the German General Staff by the Nazi Party, the General Staff as an institution has been emotionally rejected in the United States without a careful historical and legal examination of how that institution operates under varying forms …

Booty, Bounty, Blockade, And Prize: Time To Reevaluate The Law, Andrew Clapham

International Law Studies

This article considers the so-called belligerent rights of States in times of war. In particular it focuses on booty of war, blockade, and the capture of merchant ships and their cargo. It is suggested that, while the rules may not often be applied today, they nevertheless continue to exert a certain influence, contributing to confusion about the boundaries of the legitimate use of force and a blurring of the distinction between military objectives and civilian objects.

Considering that the UN Charter has outlawed the use of force, the article also questions why such rules concerning capture should continue to have …

Justice Delayed, Justice Denied? The Search For Accountability For Alleged Wartime Atrocities Committed In Sri Lanka, Aloka Wanigasuriya

Pace International Law Review

During the final stages of its nearly three-decades-long civil war in 2009, Sri Lanka attracted considerable international attention due to the allegations of international crimes that were said to have been committed both by the Sri Lankan government Armed Forces, the Guerilla Force, and the Liberation Tigers of Tamil Eelam (LTTE). According to United Nations (UN) experts, an estimated 40,000 civilians were killed during the final offensive, which lasted from January to May 2009. However, the Sri Lankan government has set this figure at 9,000 with no civilian casualties. Several UN bodies found credible allegations that international crimes were committed …

Temporary Protection Status: A Yugoslavian Precedent, Medina Dzubur

Indiana Journal of Global Legal Studies

Analyzing the past use of temporary protection status to shield those facing "ethnic cleansing, massacres, mass rapes, and cultural vandalism" is fundamental in understanding how this tool can be utilized to protect modern refugees, and why EU members have refused to implement this status further. In other words, should temporary protection status, considering the legal framework and the socioeconomic effects, be granted to Syrian refugees? This note argues in favor of granting temporary protection status to Syrian refugees because the status (1) offers a recourse for displaced persons that would not be covered by traditional legal protections, (2) produces quicker …

The Bemba Appeals Chamber Judgment: Impunity For Sexual And Gender-Based Crimes?, Susana Sácouto, Patricia Viseur Sellers

William & Mary Bill of Rights Journal

No abstract provided.

Human Rights In International Criminal Proceedings—The Impact Of The Judgment Of The Kosovo Specialist Chambers Of 26 April 2017, Göran Sluiter

William & Mary Bill of Rights Journal

By their very nature, international criminal tribunals will in their operation impact individual rights, such as the right to liberty and the right to a fair trial. Without a constitution and without a history in developing due process norms, international criminal tribunals have to provide for instant incorporation of human rights in their respective criminal proceedings.

However, the circumstances under which international criminal tribunals are established are often complex, while at the same time their creation is considered to be a matter of urgency. As a result, there may not always be sufficient attention to human rights law’s position and …

Book Reviews, Usawc Press

The US Army War College Quarterly: Parameters

No abstract provided.

How Two Sunken Ships Caused A War: The Legal And Cultural Battle Between Great Britain, Canada, And The Inuit Over The Franklin Expedition Shipwrecks, Christina Labarge

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

How I Learned To Stop Worrying And Love The Bots, And How I Learned To Start Worrying About Democracy Instead, Antonio F. Perez

Catholic University Journal of Law and Technology

This essay reviewing Striking Power, John Yoo and Jeremy Rabkin's new book on the legal and policy implications of autonomous weapons, takes issue with the book’s assumptions and; therefore its conclusions. The essay argues that, because of technological and ethical limitations, discriminate and effective use of autonomous weapons may not serve as an adequate substitute for traditional manpower-based military forces. It further argues that traditional conceptions of international law could prove more durable than Yoo and Rabkin suggest, and finally it concludes by suggesting that a grand strategy relying primarily on technological elites managing autonomous weapons actually threatens to …

Moral Disarmament: Reviving A Legacy Of The Great War, James D. Fry, Saroj Nair

Michigan Journal of International Law

In short, this Article examines the concept of moral disarmament using a broad-spectrum definition of humanity rather than the traditional IHL perspective. Rather than referring to human rights that are impacted by armaments, this Article looks at methods through which human initiative can create a society that truly hungers for disarmament. In other words, this Article points out that the extent of change that society can bring about through education, intellectual cooperation, peace initiatives, international affairs awareness, and intercultural communication can be reflected in the economic growth, social growth, and development of states. The aim is to help the reader …

Living The World War - A Retrospective, Donald N. Zillman, Elizabeth Elsbach

Maine Law Review

Living the World War is a 1200-page, two volume study of America’s participation in World War I. The week-by-week review tries to place the reader in the position of an American citizen of a century ago who “lived” the War years without knowing what might come next. The authors’ sources are the daily editions of the New York Times and the pages of the Congressional Record—two documents available to the informed citizen of 1916 to 1919. The crucial issues of a century ago have helped shape American law and policy that is relevant today to such issues as the nature …

An Environmental No Man's Land: The Often Overlooked Consequences Of Armed Conflict On The Natural Environment, Evan Frauhiger

William & Mary Environmental Law and Policy Review

No abstract provided.

Why A President Cannot Authorize The Military To Violate (Most Of) The Law Of War, John C. Dehn

William & Mary Law Review

Waterboarding and “much worse,” torture, and “tak[ing] out” the family members of terrorists: President Trump endorsed these measures while campaigning for office. After his inauguration, Trump confirmed his view of the effectiveness of torture and has not clearly rejected other measures forbidden by international law. This Article therefore examines whether a President has the power to order or authorize the military to violate international humanitarian law, known as the “law of war.” Rather than assess whether the law of war generally constrains a President as Commander-in-Chief, however, its focus is the extent to which Congress requires the U.S. military to …

Contrasting Perspectives And Preemptive Strike: The United States, France, And The War On Terror, Sophie Clavier

Maine Law Review

A few years ago, Samuel P. Huntington's article in Foreign Affairs, "The Clash of Civilizations?" described a "West vs. the Rest" conflict leading to the assumption of an essentially unified Western civilization settling "[g]lobal political and security issues ... effectively ... by a directorate of the United States, Britain and France" and centered around common core values "using international institutions, military power and economic resources to run the world in ways that will . . . protect Western interests . . . .” Against the West, the specter of disorder and fundamentalism was looming and would precipitate conflicts. This widely …

Unilateral And Multilateral Preventive Self-Defense, Stéphanie Bellier

Maine Law Review

The governing principle of the collective security system created by the United Nations Charter in 19451 is the rule prohibiting the use of force in Article 2(4), which provides that "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purpose of the United Nations." This rule prohibiting the use of force was considered revolutionary at the time because it transformed into international law ideas which had for centuries, if not millennia, preoccupied the minds of people …

Niac Nonsense, The Afghan War, And Combatant Immunity, Jordan J. Paust

Georgia Journal of International & Comparative Law

No abstract provided.

Legal Status Of Drones Under Loac And International Law, Vivek Sehrawat

Penn State Journal of Law & International Affairs

No abstract provided.

The Innocent Combatant: Preserving Their Jus In Bello Protections, Mark "Max" Maxwell, Richard V. Meyer

Penn State Journal of Law & International Affairs

No abstract provided.

The First Wartime Water Torture By Americans, Allan W. Vestal

Maine Law Review

The first use of wartime water torture by Americans occurred during the Philippine-American War of 1899 to 1902, when American soldiers and their indigenous minions used the “water cure” to extract information from Filipinos who resisted the occupation of their land, and to punish them. The practice, in which a prisoner was held down and forced to ingest large quantities of water to simulate drowning, was almost universally acknowledged at the time to be a form of torture, illegal under the applicable laws of war. The Philippine-American War, an early foray into overseas imperialism, was extremely controversial at the time. …

False Rubicons, Moral Panic, & Conceptual Cul-De-Sacs: Critiquing & Reframing The Call To Ban Lethal Autonomous Weapons, Chris Jenks

Pepperdine Law Review

By casting into the indeterminate future and projecting visions of so-called killer robots, The Campaign to Stop Killer Robots (The Campaign) has incited moral panic in an attempt to stimulate a discussion—and ultimately a ban—on lethal autonomous weapons (LAWS). The real concern is the weapon systems’ ability to select and engage targets without human intervention. However, weapons systems that perform these functions have already been employed internationally since 1980 and The Campaign has been unable to specify which of the current systems its proposed ban should include. This article explains autonomy in general and as applied to weapons systems. It …

The Common Law Of War, Jens David Ohlin

William & Mary Law Review

In recent litigation before U.S. federal courts, the government has argued that military commissions have jurisdiction to prosecute offenses against the “common law of war,” which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Article challenges that definition by arguing that stray references to the term “common law of war” in historical materials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Article concludes that the “common law of war” referred to a branch …

Japan’S 2015 Security Legislation: Challenges To Its Implementation Under International Law, Hitoshi Nasu

International Law Studies

Japan’s new security legislation, enacted on September 30, 2015 amid fierce debate over its constitutionality, is designed to enable a “seamless response” to any security situation that may arise. While public debate has been fixated on the re-interpretation of Article 9 of the Japanese Constitution, which underpins the theoretical foundation of this new legislation, there are also important international law issues that need to be addressed. After briefly reviewing the historical background leading to the adoption of the new security legislation and its contents, this article examines how the Self-Defense Force (SDF) can respond with the use of force to …

Rape And Sexual Violence: Questionable Inevitability And Moral Responsibility In Armed Conflict, Katherine W. Bogen

Scholarly Undergraduate Research Journal at Clark (SURJ)

Wartime sexual violence is a critical human rights issue that usurps the autonomy of its victims as well as their physical and psychological safety. It occurs in both ethnic and non-ethnic wars, across geographic regions, against both men and women, and regardless of the “official” position of commanders, states, and armed groups on the use of rape as tactic of war. This problem is current, pervasive, and global in spite of the status of wartime sexual violence perpetration as a crime against humanity and the capacity of the international criminal court to indict offenders. Though some scholars have argued that …

Too Many Cooks In The Kitchen: Examining The Major Obstacles To Achieving Peace In Syria's Civil War, Amanda Pitrof

Pepperdine Dispute Resolution Law Journal

The struggle for peace has been waged over and over, in numerous countries. Syria is no exception. It is a country with a history of violent conflict and political instability. The current regime is authoritarian to the extreme, and the range of competing religious interests is diverse. The civil war now consuming the country has claimed tens of thousands of lives, displaced millions, and thrown the country's future into question. This article will first briefly examine the country's turbulent history and the development of the current conflict. Next, it will evaluate previous attempts to solve the conflict. Then, it will …

Ambivalent Enforcement: International Humanitarian Law At Human Rights Tribunals, Shana Tabak

Michigan Journal of International Law

In addition to exploring the limitations of the Inter-American System’s jurisdictional capacity to adjudicate issues of IHL, this Article examines Inter-American jurisprudence in light of recent scholarly conversations regarding the relevance of the principle of lex specialis, which seeks to guide tribunals when two bodies of law may apply simultaneously, by providing for the prioritization of a specialized body of law over a general one. This concept, first articulated by the International Court of Justice (ICJ) in the Nuclear Weapons case, has proven to be the source of much scholarly consternation. As a means of addressing problems arising from …

An All-Volunteer Force: Law Students And Pro Bono Lawyers Helping Veterans, Patricia E. Roberts

South Carolina Law Review

No abstract provided.

Wars Remembered (2003), Shaun O’Connell

New England Journal of Public Policy

O'Connell speaks about his father, among other war veterans, dealing with the effects of the wars they fought in. He explains his father's history from how he enilisted to how he died. He also touches upon other's war experiences and writing about the after effects of them as well.

Reprinted from New England Journal of Public Policy 19, no. 1 (2003), article 3.

The War Powers Consultation Act: Keeping War Out Of The Zone Of Twilight, Brendan Flynn

Catholic University Law Review

The Constitution divides the war powers between Congress, which declares war, and the President, who serves as Commander-in-Chief of the Armed Forces. Since the Korean War, the President has claimed increased authority to send the military into harm’s way without Congressional authorization. ­This Comment surveys the war powers issue through U.S. history and asserts that the President’s claim of increased authority has been enabled by Congressional abdication of its role, leading to­­ wars fought in a legal­­ “zone of twilight” in which Congress has neither authorized nor forbidden Presidential action (drawing on Justice Jackson’s famous tripartite analysis in his Youngstown …

Aumf Panel Transcript, Rosa Brooks, Benjamin Wittes

Pepperdine Law Review

No abstract provided.