Military, War, and Peace Commons^™

After Action: The U.S. Drone Program's Expansion Of International Law Justification For Use Of Force Against Imminent Threats, Elodie O. Currier

Vanderbilt Law Review

Until the 2000s, the United States' attempts to shift international legal norms on imminence to allow for greater use of armed force abroad were largely unsuccessful. In the past two decades, however, drone use and careful legal gamesmanship by U.S. officials have opened an unprecedentedly broad allowance for use of force in imminent self-defense. As drones become increasingly available to state and non-state actors, this permissive regime poses a threat to national and international security. This Note analyzes two decades of international customary law formation around drone use outside of armed conflict through a new lens post U.S.-withdrawal of Afghanistan. …

Criminalizing Starvation In An Age Of Mass Deprivation In War: Intent, Method, Form, And Consequence, Tom Dannenbaum

Vanderbilt Journal of Transnational Law

Mass starvation in war is resurgent. Across a range of conflicts, belligerents have attacked farmers and humanitarian workers; destroyed, looted, or rendered unusable food and food sources; and cut off besieged populations from the external supply of essential goods. Millions have been left in famine or on the brink thereof. Increasingly, this has elicited calls for accountability. However, traditional criminal categories are not promising in this respect. The situation and nature of objects indispensable to survival is such that they typically provide sustenance to both civilians and combatants; the conduct that deprives people of those objects often involves acting on …

The Fighting's Done, Now Pay Me: Investment Treaties, War And State Liability, Thomas C. Hildebrand, Iii

Vanderbilt Journal of Transnational Law

Where major conflict erupts, major state liability follows. Sri Lanka, Zaire, Libya, and Syria have all found themselves subject to extensive liability to investors under bilateral investment treaties for harms incurred in the midst of armed conflicts raging within their borders. This Note argues that war-loss clauses, present in nearly every bilateral investment treaty, should be interpreted to create a lex specialis regime limiting investor compensation following armed conflicts. Arbitral tribunals, however, have consistently refused to apply war-loss clauses in this manner. This has lead to an over-extension of state liability to foreign investors in the wake of armed conflict. …

Challenging And Refining The "Unwilling Or Unable" Doctrine, Craig Martin

Vanderbilt Journal of Transnational Law

This Article challenges and proposes refinements to the "unwilling or unable" doctrine. Governments after 9/11 have invoked the doctrine to justify the use of force in self-defense against non-state actors (NSAs) operating within the territory of nonconsenting states. Responding to criticism that it lacked substance and a legal foundation, Daniel Bethlehem famously developed more detailed principles to embed the policy firmly in law, strike a balance between the interests of target states and territorial states, and bridge the gap between scholars and policymakers. His principles were embraced by governments as reflecting custom. The effort was laudable, but the principles fell …

Charney Lecture: The Rule Of Law In International Security Affairs: A U.S. Defense Department Perspective, Paul C. Ney, Jr.

Vanderbilt Journal of Transnational Law

Thank you very much for inviting me here today. I am especially grateful to Dean Chris Guthrie, Professor Mike Newton, and Mrs. Sharon Charney, who generously endowed this lecture series in memory of her late husband, Professor Jonathan Charney. Thank you, as well, to all the members of the Charney family for sharing him with the Vanderbilt community. Professor Charney taught at Vanderbilt for forty years and was one of the nation's preeminent scholars and practitioners of international law. He was a member of the U.S. delegation to the Third United Nations Conference on the Law of the Sea, which …

Special Issue: The Law Of Armed Conflict, Ben Wahlhaus Major, International Law Department, Hannah Lidicker Editor In Chief

Vanderbilt Journal of Transnational Law

Few areas of international law are as consequential as the Law of Armed Conflict (LOAC). At its very core, it entails an endeavor to regulate death and destruction both for those who participate in a conflict and for those who are simply affected by the conflict.

LOAC is also of continued relevance. The number of armed conflicts around the world does not seem to be on the wane, and thus there is no shortage of situations in which LOAC remains applicable.

Just as the law retains its consequence and relevance, the study of LOAC retains its importance. Old questions warrant …

We're Not In Beersheba Anymore: Discussing Contemporary Challenges In The Law Of Armed Conflict With 120 International Lawyers, Sharon Afek Brigadier General

Vanderbilt Journal of Transnational Law

This first-hand account encapsulates the nature of the Battle of Beersheba. It saw uniformed soldiers fight other uniformed soldiers from an organized and hierarchical military. The battle took place in the open terrain of the desert. There was a clear frontline, entirely separate from the civilian life in the nearby town of Beersheba. The battle, and the wider war of which it was a part, was clearly delineated in its start and end. The Battle of Beersheba enabled the Allied forces to break the Ottoman line and advance northwards, eventually beating out the Ottoman Empire and permanently changing the geopolitical …

Fight, Forge, And Fund: Three Select Issues On Targeting Of Persons, Colonel Dr. Eran Shamir-Borer

Vanderbilt Journal of Transnational Law

In this brief Article, I shall focus on a few specific issues that, in my mind, have particular relevance for contemporary and future armed conflicts, and with respect to which the debate is still ongoing: (a) the notion of "functional membership" in the armed forces of a non-state actor; (b) whether civilians employed in research and development projects qualify as direct participants in hostilities; and (c) whether civilians engaged in certain financial activities qualify as direct participants in hostilities.

Proportionality In Military Force At War's Multiple Levels: Averting Civilian Casualties Vs. Safeguarding Soldiers, Ziv Bohrer, Mark Osiel

Vanderbilt Journal of Transnational Law

To what lengths may a state go to protect its soldiers in war? May it design its military operations to further that goal if this significantly increases civilian casualties? International law currently offers no clear answers. Because recent wars have seen many states prioritize soldier safety over avoiding civilian casualties, spirited debate has arisen over the legal defensibility of this practice. This debate currently focuses on an ethics code proposed by two influential Israeli thinkers and allegedly embodied in Israel's conduct of its 2008-2009 Gaza war with Hamas. This Article shows that current discussion fails to appreciate how judgments about …

The Threat Of Force As An Action In Self-Defense Under International Law, James A. Green, Francis Grimal

Vanderbilt Journal of Transnational Law

Self-defense is a universally accepted exception to the prohibition of the use of force in international law, and it has been subjected to careful academic scrutiny. The prohibition of the threat of force, although equally important in terms of its normative status to the prohibition on use, has attracted far less academic commentary to date. This Article examines the relationship between the two prohibitions--of the use and threat of force--and considers the largely unexplored possibility of states utilizing a threat of force as a means of lawful defensive response: self-defense in the form of a threat. The status of this …

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 …

Avoid Or Compensate? Liability For Incidental Injury To Civilians Inflicted During Armed Conflict, Yael Ronen

Vanderbilt Journal of Transnational Law

Under international law, civilians suffering injuries that are incidental to a lawful attack on a military objective are left to bear the cost of their losses. In recent years there have been calls for a change in policy that would entitle victims of military attacks to compensation, even if their losses are incidental and non-fault-based. This Article explores the notion of such a quasi-strict liability rule, which is likely to disrupt the existing balance of powers and interests under the laws of armed conflict. Following an exploration of the conceptual basis for such an obligation, the Article examines the effect …

Sanctions, Countermeasures, And The Iranian Nuclear Issue, N. J. Calamita

Vanderbilt Journal of Transnational Law

The international community's response to Iran's nuclear development program highlights the sometimes complex legal relationship between the UN system of collective security and the rights of states to take unilateral countermeasures under the law of state responsibility. It also raises a number of important questions about (a) the discretion afforded to states in the interpretation and implementation of Security Council resolutions, (b) the availability of countermeasures for the violation of multilateral obligations, and (c) the exclusivity of the Chapter VII framework for collective security.

This Article argues that, while the Security Council's Iran sanctions resolutions do not grant discretionary authority …

The Detainee Treatment Act Of 2005: Embodying U.S. Values To Eliminate Detainee Abuse By Civilian Contractors And Bounty Hunters In Afghanistan And Iraq, Ryan P. Logan

Vanderbilt Journal of Transnational Law

The growth in the number of bounty hunters and civilian contractors accompanying the U.S. military into battle has swelled during the current conflicts in Afghanistan and Iraq. Civilians have been utilized in all facets of those military campaigns, including the interrogation of suspected terrorists or insurgents. Faced with intense pressure to rapidly obtain information about terrorist operations and yet having little oversight of their interrogation activities, some of these contractors and bounty hunters have been accused of abusing detainees. This Note explores the legal avenues for addressing accusations of detainee abuse by U.S. civilians in Afghanistan and Iraq and concludes …

The Use Of Force And (The State Of) Necessity, Andreas Laursen

Vanderbilt Journal of Transnational Law

At the beginning of the twenty-first century, debates about international law and the use of force have gained new momentum. This is due to the armed conflicts in Kosovo, Afghanistan, and Iraq as well as the publication of two recent security strategies by the U.S. government. These strategies consider the possibility of preemptive use of force and have received considerable criticism from international law scholars. Professor Laursen asks whether the necessity excuse in international law allows for preemptive strikes of the sort envisioned by the U.S. security strategies. Following an examination of the status of the necessity excuse in international …

Legal And Policy Constraints On The Conduct Of Aerial Precision Warfare, Nathan A. Canestaro

Vanderbilt Journal of Transnational Law

Focusing his historical analysis on World War II, Mr. Canestaro describes how the substantial legal and policy controls under which the U.S. military conducts its air campaigns meet or exceed the requirements of international treaties and the customary practice of states. Bombing technology has only recently developed to the point of allowing compliance with international legal standards, and the United States has implemented stringent measures in recent conflicts to minimize unintended civilian casualties in warfare. Mr. Canestaro demonstrates that because these self-imposed restrictions go beyond the point of mere compliance, they often constitute a disadvantage to the conduct of U.S. …

Whistleblowing, Mncs, And Peace, Terry M. Dworkin

Vanderbilt Journal of Transnational Law

This Article examines the relationship among whistleblowing, corporations, and international peace. The Author attempts to establish that whistleblowing is a vital part of transparency and good government. In Part II, the Author examines the rationale for whistleblowing. Part III addresses the cultural dimensions of whistleblowing and its practicability for global organizations. Finally, the Author looks at the advantages of whistleblowing in relation to both corporations and peace efforts.

Interview: The Business Of Peace, Madeleine Albright, Former Secretary Of State, B. Joseph White

Vanderbilt Journal of Transnational Law

I think the thing that we have really seen, Joe, recently, is the fact that we have global companies that are situated everywhere and are very much a part of the societies in which they operate. The way that they can contribute is by really embedding themselves in the local communities and by providing economic support within those communities to help mitigate some of the aspects of poverty within that particular milieu where they are operating. They can contribute by basically making it clear to people that we are all part of the same story. Just because you may be …

Prosecuting The "Fog Of War?, Christopher D. Booth

Vanderbilt Journal of Transnational Law

In the Fall of 1999, the Associated Press reported a story of an alleged massacre of Korean civilians, conducted by U.S. troops at the beginning of the Korean War in the hamlet of No Gun Ri. The story had an incendiary effect, both in the United States and abroad. The story of an incident from half-a-century ago caused many to reexamine the conduct of American forces in that war, the current security arrangements in East Asia, the U.S.-R.O.K. relationship, and the wisdom and ability of modem Americans to investigate, evaluate, and judge historical events from our current historical and cultural …

Between Iraq And A Hard Place: The U.N. Compensation Commission And Its Treatment Of Gulf War Claims, Lea C. Owen

Vanderbilt Journal of Transnational Law

The United Nations Compensation Commission (UNCC) was formed in 1991 to address claims against Iraq arising out of the Gulf War. In its seven years of operation, the UNCC has received 2.6 million claims, with an asserted value of more than $244 billion. It has processed 2.4 million of these claims, for a total of $6 billion, and it has paid to victims more than $730 million. Despite these accomplishments, the UNCC has much left to do, and its efforts have been burdened by Iraq's post-war refusal to meet its treaty obligations. The UNCC now faces waning political support from …

Anti-Personnel Mines And Peremptory Norms Of International Law: Argument And Catalyst, R. J. Araujo

Vanderbilt Journal of Transnational Law

Anti-personnel mines have evolved into the military device of choice in many regional conflicts across the world. The author commences his analysis of this development by considering the impact of anti-personnel mines on civilian populations and the reasons historically articulated for their use. After evaluating their relative costs and benefits, the author proceeds to analyze the problem of anti-personnel mines under the principles of international law. First, the author considers legal principles regarding the permissible use of force by combatants, generally referred to as jus in bello. Next, the author evaluates the use of anti-personnel mines under jus in bello …

Peace And The Press: Media Rules During U.N. Peacekeeping Operations, Jennifer Lee

Vanderbilt Journal of Transnational Law

In recent years, U.N. peacekeeping operations have become an increasing focus of international military action and media coverage. While the military and the media have maintained a precarious balance in the United States between the military's objective of operational success and the media's call for uncensored reporting, the evolution and growing importance of U.N. peacekeeping offers new considerations to this balance. This Note examines the ability of the United Nations to affect the balance between the military and the media through the implementation of U.N. media rules during peacekeeping operations. This Note begins by reviewing the history of media coverage …

The Reemergence Of German Arms: How Far Will Germany's March Toward Full Use Of Military Force Go?, Walter J. Lemanski

Vanderbilt Journal of Transnational Law

In 1994, the German Federal Constitutional Court handed down a landmark decision redefining the constitutionality of German use of military force. For more than forty years, the German government claimed that the German Constitution forbade the use of military forces for other than the defense of NATO territory. The Federal Constitutional Court, however, held that a majority vote of Parliament was all that was required to commit forces to military actions sanctioned by collective security agreements. In 1995, for the first time since World War II, Germany sent offensive military forces into a combat zone. These events raise the question …

On Demilitarizing A Palestinian "Entity" And The Golan Heights: An International Law Perspective, Louis R. Beres, Zalman Shoval

Vanderbilt Journal of Transnational Law

With the signing of the Oslo II Accord at the White House on September 28, 1995, Israel and the Palestine Liberation Organization codified the expansion of Palestinian self-rule in Judea and Samaria. Authors of this Accord argue that the security risks to Israel from the nascent Palestinian state could be reduced through appropriate forms of demilitarization. Similar arguments are being offered in relation to the Golan Heights, a strategic plateau currently in dispute between Israel and Syria. In this very timely and important Article, Professor Beres and Ambassador Shoval examine demilitarization in both contexts. They conclude, jurisprudential assurances notwithstanding, that …

The Yugoslav War Crimes Tribunal: The Compatibility Of Peace, Politics, And International Law, Karl A. Hochkammer

Vanderbilt Journal of Transnational Law

Since 1991, a brutal war has raged among ethnic groups of the former Yugoslavia. Outraged by the atrocities that have pervaded the war, the United Nations established an international tribunal in 1993 to adjudicate violations of international humanitarian law committed in the Yugoslav conflict. Although well-intentioned, the Yugoslav Tribunal nevertheless may fail to accomplish its goals. A number of practical and legal obstacles may impede its success. In particular, the United Nations lack of physical control over the combatants in the Yugoslav conflict may frustrate the Tribunal's ability to bring accused war criminals to justice. This Note surveys the problems …

Non-Proliferation, Self-Defense, And The Korean Crisis, Mark E. Newcomb

Vanderbilt Journal of Transnational Law

The United Nations, the United States, and other interested governments have sought to minimize the proliferation of nuclear weapons. North Korea's apparent attempts to begin production of nuclear materials clearly undermine the goal of non-proliferation. Moreover, the introduction of nuclear weapons onto the Korean peninsula, a site of continued political and military tension, has added a threat of potential nuclear conflict. This Article investigates the history of the Korean crisis and places North Korea's attempt to withdraw from the Treaty on the Non-Proliferation of Nuclear Weapons in the context of the international non-proliferation regime and policy. The author then examines …

Preserving The Third Temple: Israel's Right Of Anticipatory Self-Defense Under International Law, Louis R. Beres

Vanderbilt Journal of Transnational Law

In this Article, Professor Beres discusses certain political tensions in the Middle East and the appropriateness of preemptive military action by Israel. He concludes that the ongoing hostilities and threatening overtures by Israel's enemies could give Israel sufficient basis pursuant to international law to conduct preemptive strikes. Upon reaching this conclusion, Professor Beres considers the level of force Israel should employ in various preemptive or counter retaliation scenarios. While the degree of preemption is debatable, the author believes that the preservation of Israel may require some preemptive action in the near future.

The Nonproliferation Treaty And The "New World Order", Bryan L. Sutter

Vanderbilt Journal of Transnational Law

The Treaty on the Non-Proliferation of Nuclear Weapons (NPT or Treaty) faces either extinction or extension in 1995, when the NPT signatories will meet to decide its fate. Given the rapid changes in today's nuclear technology and political environment, many states have expressed reservations about extending the Treaty. This Note considers the implications of those reservations as well as arguments favoring extension. This Note reviews the birth of the atomic age and the terms of the NPT and examines the Treaty's strengths and weaknesses. The author concludes that the Treaty should remain in force and suggests strategies for maintaining the …

After The Gulf War: Prosecuting Iraqi Crimes Under The Rule Of Law, Louis R. Beres

Vanderbilt Journal of Transnational Law

In this Article, Professor Beres proposes that Iraqi crimes committed during the Gulf War should be prosecuted under international law. He suggests that the United States should take the lead in this prosecution, utilizing a Nuremberg-style trial.

The Article first discusses history of the antigenocide regime in the international arena. The criminalization of genocide has been built upon the norms of international custom, natural law principles, and generally-accepted principles of law recognized by civilized nations. Moreover, evidence of this regime may be found in the Genocide Convention, the United Nations Charter, and other treaties and conventions.

Professor Beres next examines …

The Role Of International Organizations In The Implementation Of Human Rights And Humanitarian Law In Situations Of Armed Conflict, David Weissbrodt

Vanderbilt Journal of Transnational Law

This Article will first review how nongovernmental organizations attempt to apply human rights law and humanitarian law during periods of armed conflict. It will next review the practice of one principal inter-governmental organization--the United Nations General Assembly--inciting humanitarian law. Third, this Article will study the reasons why the United Nations and international nongovernmental organizations should or should not refer to humanitarian law in support of their human rights work. Fourth, it will consider the preeminent position in implementing international humanitarian law of the ICRC, a private Swiss organization engaged in various international activities including specific functions provided by international humanitarian …