Law Commons^™

Return To Sender?: Analyzing The Senior Leader “Open Letter” On Civilian Control Of The Military, Charles J. Dunlap Jr.

Faculty Scholarship

In response to the September 2022 open letter, “To Support and Defend: Principles of Civilian Control and Best Practices of Civil-Military Relations,” by eight former secretaries of defense and five former chairmen of the Joint Chiefs of Staff, this Article adds a piece to the unsettled puzzle of civil-military relations. The Letter attempts to detail “core principles or best practices” (CP/BP) regarding civil-military relations, and in response, this Article comments on and clarifies these well-intended efforts. This Article sequentially dissects each CP/BP in today’s context of hyper-politicization, partisanship, technology, and more. Where necessary, the Article explains how the law may …

Targeting Of Persons: The Contemporary Challenges, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

When Terrorists Govern: Protecting Civilians In Conflicts With State-Building Armed Groups, Mara R. Revkin

Faculty Scholarship

Many existing U.S. counter-terrorism policies, including those governing targeting and detention, rely on an empirical assumption that terrorist groups are primarily military organizations. This assumption may be appropriate in the case of al-Qaeda, but it fails to describe terrorist groups that engage not only in warfare but also in governance and state-building such as the Islamic State, a self-declared “caliphate” that—at the height of its expansion in 2014—claimed sovereignty over an estimated 34,000 square miles and 10 million civilians. This Article identifies a category of “state-building” terrorist groups that can be distinguished by the following characteristics: (1) the presence of …

U.S. War Powers And The Potential Benefits Of Comparativism, Curtis A. Bradley

Faculty Scholarship

There is no issue of foreign relations law more important than the allocation of authority over the use of military force. This issue is especially important for the United States given the frequency with which it is involved in military activities abroad. Yet there is significant uncertainty and debate in the United States over this issue — in particular, over whether and to what extent military actions must be authorized by Congress. Because U.S. courts in the modern era have generally declined to review the legality of military actions, disputes over this issue have had to be resolved, as a …

"Cybervandalism" Or "Digital Act Of War?" America's Muddled Approach To Cyber Incidents Will Not Deter More Crises, Charles J. Dunlap Jr.

Faculty Scholarship

If experts say a "malicious [cyber] code"' has "similar effects" to a "physical bomb,"' and that code actually causes "a stunning breach of global internet stability," is it really accurate to call that event merely an instance of a "cyber attack"?

Moreover, can you really expect to deter state and non-state actors from employing such code and similarly hostile cyber methodologies if all they think that they are risking is being labeled as a cyber-vandal subject only to law enforcement measures? Or might they act differently if it were made clear to them that such activity is considered an "armed …

Lawfare 101: A Primer, Charles J. Dunlap Jr.

Faculty Scholarship

Dunlap discusses the concept of lawfare—using law as a form of asymmetrical warfare—and provides some considerations for how to combat this phenomenon. The article establishes the intellectual framework and thematic direction for this Issue of Military Review.

Feminism And International Law In The Post 9/11 Era, Jayne C. Huckerby

Faculty Scholarship

No abstract provided.

Why Declarations Of War Matter, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

No Good Options Against Isis Barbarism? Human Shields In 21st Century Conflicts, Charles J. Dunlap Jr.

Faculty Scholarship

One of the most vexing conundrums of 21st century warfare has been not just the explosive growth in the use of human shields, but the apparent systemization of the tactic, particularly by nonstate actors. In noting the international prohibition, the International Committee of the Red Cross (ICRC) defines the practice as the “intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.”

Military Justice, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Accountability And Autonomous Weapons: Much Ado About Nothing?, Charles J. Dunlap Jr.

Faculty Scholarship

This purpose of this essay is to critique a 2015 report entitled Mind the Gap: The Lack of Accountability for Killer Robots by Human Rights Watch (HRW) produced with the assistance of the Harvard Law School’s International Human Rights Clinic (IHRC). The HRW/IHRC paper attempted to establish that autonomous weapons should be banned because, they claim, “neither criminal law nor civil law guarantees adequate accountability for individuals directly or indirectly involved in the use of fully autonomous systems.” Contrary to HRW/IHRC assertions, this article maintains that although no one can “guarantee” accountability, there are sufficient legal tools to do so …

Obama's Aumf Legacy, Curtis A. Bradley, Jack Landman Goldsmith

Faculty Scholarship

No abstract provided.

Presidential War Powers As A Two-Level Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

Faculty Scholarship

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …

The Dod Law Of War Manual And Its Critics: Some Observations, Charles J. Dunlap Jr.

Faculty Scholarship

The U.S. Department of Defense’s (DoD) new Law of War Manual has generated serious debate about its treatment of a variety of issues including human shields, the status of journalists, cyber operations, the precautions to be taken prior to attacks and even the role of honor in war. Although this article does not purport to be a comprehensive response to every critique of the Manual and, indeed, cites opportunities for its improvement, it nevertheless concludes that on balance the Manual provides an excellent, comprehensive and much-needed statement of DoD’s view of the lex lata of the law of war.

American Military Culture And Civil-Military Relations Today, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Lawfare, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Book Reviews: War & Technology, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Still Shortchanged: Some Observations About The New Army/Marine Corps Coin Doctrine, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Clever Or Clueless? Observations About Bombing Norm Debates, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

The Hyper-Personalization Of War: Cyber, Big Data, And The Changing Face Of Conflict, 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.

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.

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 Justice, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

No abstract provided.

Ethical Issues Of The Practice Of National Security Law: Some Observations, Charles J. Dunlap

Faculty Scholarship

No abstract provided.

Responses To The Five Questions, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Law Of War Manuals And Warfighting: A Perspective, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

The Intersection Of Law And Ethics In Cyberwar: Some Reflections, Charles J. Dunlap Jr.

Faculty Scholarship

The purpose of this short essay is to reflect upon a few issues that illustrate how legal and ethical issues intersect in the cyber realm. Such an intersection should not be especially surprising., Historian Geoffrey Best insists, “[I]t must never be forgotten that the law of war, wherever it began at all, began mainly as a matter of religion and ethics . . . “It began in ethics” Best says “and it has kept one foot in ethics ever since.” Understanding that relationship is vital to appreciating the full scope of the responsibilities of a cyber-warrior in the 21st century.