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Military, War and Peace

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Articles 1 - 30 of 83

Full-Text Articles in Military, War, and Peace

The Conflict Of Laws In Armed Conflicts And Wars, John Dehn Aug 2015

The Conflict Of Laws In Armed Conflicts And Wars, John Dehn

John C. Dehn

After over thirteen years of continuous armed conflict, neither courts nor scholars are closer to a common understanding of whether, or how, international and U.S. law interact to regulate acts of belligerency by the United States. This Article articulates the first normative theory regarding the relationship of customary international law to U.S. domestic law that fully harmonizes Supreme Court precedent. It then applies this theory to customary international laws of war to better articulate the legal framework regulating the armed conflicts of the United States. It demonstrates that the relationship of customary international law to U.S. law ...


“Not Reasonably Debatable”: The Problems With Single-Judge Decisions By The Court Of Appeals For Veterans Claims, James Ridgway Aug 2015

“Not Reasonably Debatable”: The Problems With Single-Judge Decisions By The Court Of Appeals For Veterans Claims, James Ridgway

James D. Ridgway

The U.S. Court of Appeals for Veterans Claims (CAVC) has statutory authority—unique among the federal appellate courts—to allow individual judges to decide appeals. As the CAVC completes the first quarter century of operations since its creation, this article examines the court’s use of this authority. Based upon two years of data developed and analyzed by the authors, this article concludes that outcome variance in single-judge decisions is a serious problem at the CAVC. Not only is there a substantial difference in the outcomes of appeals assigned to the different judges, but there are clear examples of ...


Military Professionals As Guardians Of The Republic: The Hidden Promise Of Huntington’S The Soldier And The State, Robert Atkinson Aug 2015

Military Professionals As Guardians Of The Republic: The Hidden Promise Of Huntington’S The Soldier And The State, Robert Atkinson

Robert E. Atkinson Jr.

This paper is the first step in developing a neo-classical theory of the military officer corps as a functionalist profession. It unpacks the central paradox of Samuel P. Huntington’s The Soldier and the State: Why does an account that begins with a call for a highly professionalized officer corps to obey the orders of any legally legitimate civilian regime end with the promise that humanity can achieve both security and redemption if all the nations of the world adopt core military values? How can “militarize the military,” Huntington’s solution to the classical question of civilian/ military relations – Plato ...


Accountability For “Crimes Against The Laws Of Humanity In Boxer China: The Experiment With International Justice At Paoting-Fu, Benjamin Brockman-Hawe Aug 2015

Accountability For “Crimes Against The Laws Of Humanity In Boxer China: The Experiment With International Justice At Paoting-Fu, Benjamin Brockman-Hawe

Benjamin E. Brockman-Hawe

This paper covers a significant but generally unknown and understudied caesure in the development of international criminal law occurred during the Boxer Rebellion, an anti-Western and anti‑Christian peasant insurgency mostly located in Northeast China. During the early stages of the Chinese intervention, at a time when the relief force was still bogged down in Beijing, approximately seventy Christians were gruesomely murdered in Paoting-fu. Securing and “punishing” the city became a priority for Western military forces, who began the necessary short march southward once Beijing’s Legation Quarter was cleared of Boxers. The Poating-fu operation could have taken the form ...


Dealing With Dangerous Women: Sexual Assault Under Cover Of National Security Laws In India, Surabhi Chopra Aug 2015

Dealing With Dangerous Women: Sexual Assault Under Cover Of National Security Laws In India, Surabhi Chopra

Surabhi Chopra Prof.

DEALING WITH DANGEROUS WOMEN: SEXUAL ASSAULT UNDER COVER OF NATIONAL SECURITY LAWS IN INDIA

This article examines violence against women suspected of being security threats in India’s internal conflict zones, one of the very few scholarly works to do so.

I focus on two cases in particular. In 2004, Thangjam Manorama was arrested by paramilitaries on suspicion of belonging to a violent separatist group, and found raped and murdered several hours later. I look at her family’s attempts to hold the armed forces accountable for her death. I also look at the ongoing criminal prosecution of Soni Sori ...


The Case For Sanctioning State Sponsors Of Genocide Incitement, Henry K. Kopel Aug 2015

The Case For Sanctioning State Sponsors Of Genocide Incitement, Henry K. Kopel

Henry K. Kopel

This Article recommends a policy designed to reduce the incidence of genocide, by legislation that would impose sanctions against state sponsors of genocide incitement. Genocide incitement is a crime under the UN Genocide Convention. The goal of sanctioning state sponsors of such incitement is to prevent genocides proactively, before the mass killing starts. Three prominent twentieth-century genocides–those of the European Jews, the Bosnian Muslims, and the Rwandan Tutsi–all were preceded by pervasive and deliberate campaigns of state-sponsored hate incitement. Most if not all genocides are preceded by similar patterns of incitement. Historical studies also show that most of ...


An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez Jun 2015

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.


Cold War Legacy And Continuing Temptation: Tactical Nuclear Weapons In International Humanitarian Law, Stefan Kirchner Apr 2015

Cold War Legacy And Continuing Temptation: Tactical Nuclear Weapons In International Humanitarian Law, Stefan Kirchner

Stefan Kirchner

During the Cold War as well as in the wake of the 9/11 terrorist attacks, low yield tactical nuclear weapons have been deployed or, in the latter case, at least envisaged (again). Of particular interest in the early years of the 21st century have been so called bunker busters, nuclear weapons which can penetrate the ground and which can be used to destroy underground facilities, such as Iranian nuclear facilities. In this article, the role of tactical nuclear weapons during the Cold War and today is explained and the legality of the use of tactical nuclear weapons, in ...


Unchecked Political Question Doctrine: Judicial Ethics At The Dawn Of A Second Nuclear Arms Race, Daniel Rust Mar 2015

Unchecked Political Question Doctrine: Judicial Ethics At The Dawn Of A Second Nuclear Arms Race, Daniel Rust

Daniel T Rust

This paper examines The Republic of the Marshall Islands v. The United States of America et al., the grounds for its dismissal, and recommendations for how it should be appealed and ultimately judged. The Marshall Islands sued alleging noncompliance with the Nuclear Non-Proliferation Treaty (NPT), seeking declaratory and injunctive relief. At issue are concepts of legality and ethics behind the “Political Question Doctrine” defense that the United States provides, in addition to whether or not the Marshall Islands has standing. When noncompliance with a valid, legal treaty causes real harm, Political Question Doctrine should not be allowed to the extent ...


The Case For Sanctioning State Sponsors Of Genocide Incitement, Henry K. Kopel Mar 2015

The Case For Sanctioning State Sponsors Of Genocide Incitement, Henry K. Kopel

Henry K. Kopel

This Article recommends a policy designed to reduce the incidence of genocide, specifically, legislation imposing sanctions against state sponsors of genocide incitement. This recommendation is based upon the observed fact that pervasive incitement campaigns routinely precede genocides, and psychological studies that document the easily-triggered predispositions capable of transforming ordinary people into mass killers. Three prominent twentieth-century genocides–those of the European Jews, the Bosnian Muslims, and the Rwandan Tutsi–all were preceded by pervasive and deliberate campaigns of hate incitement sponsored by the regimes that conducted the genocides. Most if not all genocides are preceded by similar incitement campaigns. Historical ...


Trading Police For Soldiers: Has The Posse Comitatus Act Helped Militarize Our Police And Set The Stage For More Fergusons?, Arthur Rizer Feb 2015

Trading Police For Soldiers: Has The Posse Comitatus Act Helped Militarize Our Police And Set The Stage For More Fergusons?, Arthur Rizer

Arthur L. Rizer III

The recent protests, police overreaction, and subsequent riots in Ferguson, Missouri, demonstrated to Americans and to the world the true extent of the militarization of police in communities across the United States. Deployed throughout Ferguson, in preemption and then in response to protesters’ actions, were ranks of heavily armed, flak-jacketed, camouflage uniformed police standing atop and around armored personnel carriers with machine guns mounted. Such a response evidences that the line between police and soldiers in communities is blurring, if not blurred. This militarization is, in part, a result of a principle Americans have held dear since our founding, that ...


Law Vs. Science: Should Law As A Core Subject Be Eliminated At The U.S. Armed Services Academies In Favor Of More Relevant Stem Courses?, Gregory Huckabee Feb 2015

Law Vs. Science: Should Law As A Core Subject Be Eliminated At The U.S. Armed Services Academies In Favor Of More Relevant Stem Courses?, Gregory Huckabee

Gregory M. Huckabee

Law vs. Science: Should law as a core subject be eliminated at the U.S. Armed Services Academies in favor of more relevant STEM (science, technology, engineering, mathematics) courses? As recent cyberterror events have unfolded, more STEM knowledge is needed in the armed forces. STEM courses are on the march for inclusion in greater numbers in academy core curriculums. In order for new STEM courses to join the academic heart of academy learning, predecessor courses must be reviewed for relevancy, significance, and materiality. One core course in common at all three military academies is law. Yet few core curriculums can ...


Managing Cyberthreat, Lawrence Trautman Jan 2015

Managing Cyberthreat, Lawrence Trautman

Lawrence J. Trautman Sr.

Cyber security is an important strategic and governance issue. However, because most corporate CEOs and directors have no formal engineering or information technology training, it is understandable that their lack of actual cybersecurity knowledge is problematic. Particularly among smaller companies having limited resources, knowledge regarding what their enterprise should actually be doing about cybersecurity can’t be all that good. My goal in this article is to explore the unusually complex subject of cybersecurity in a highly readable manner. First, an examination of recent threats is provided. Next, governmental policy initiatives are discussed. Third, some basic tools that can be ...


Children Die Just Like Terrorists: The June 30, 2014 Israeli Strike On Jabalia, Matthew Krause Dec 2014

Children Die Just Like Terrorists: The June 30, 2014 Israeli Strike On Jabalia, Matthew Krause

Matthew Krause

The July 2014 Israeli counterfire on a suspected Hamas indirect fire position in the vicinity of the school in Jabalia during Operation Protective Edge constitutes a war crime because it was reasonably foreseeable that the strike would have no effect on a lawful military target balanced disproportionately with a high degree of certainty that civilians would be killed in violation of the Geneva Convention, Additional Protocol I, Article 51(5)(b), and Israeli domestic law. Using traditional humanitarian law frameworks, Israeli domestic law, the author's experience conducting targeting in combat zones, and counterinsurgency theory, the author makes the case ...


Thinking Globally, Policy Locally: A Plan For Decentralized Law Enforcement In Côte D’Ivoire, __ J. Of Int’L Bus. & L. __ (Forthcoming 2015), Hugh Mundy Dec 2014

Thinking Globally, Policy Locally: A Plan For Decentralized Law Enforcement In Côte D’Ivoire, __ J. Of Int’L Bus. & L. __ (Forthcoming 2015), Hugh Mundy

Hugh Mundy

During a 2009 speech in Ghana, President Barack Obama said, “Africa doesn’t need strongmen. It needs strong institutions.” Obama credited Ghana’s “impressive rates of growth” to the country’s “repeated peaceful transfers of power even in the wake of closely contested elections.” Free elections and non-violent power transfers, he said, “may lack the drama of the twentieth century’s liberation struggles” but “will ultimately be more significant.” Last July, the president expressed similar sentiments during a highly anticipated trip to Kenya. Côte d’Ivoire offers a stark example of the instability wrought when an unseated leader refuses to ...


The Rise Of Outsourcing In Modern Warfare : Sovereign Power, Private Military Actors, And The Constitutive Process, Winston Nagan, Craig Hammer Nov 2014

The Rise Of Outsourcing In Modern Warfare : Sovereign Power, Private Military Actors, And The Constitutive Process, Winston Nagan, Craig Hammer

Winston P Nagan

In this Article, we will examine the world order implications of combat privatization through the prism of the world constitutive process. This process is one of continuing communication and collaboration that examines, refines, and allocates competence in the international system. The process of contextual mapping might shed light on the terms associated with, and concepts communicated by, privatized military combat, which might be better understood when the contexts in which they are used are illuminated in a discriminating manner. Their multiple meanings are given coherence when we appreciate the divergent contexts within which they are used. To develop the appropriate ...


Developing U.S. Nuclear Weapons Policy And International Law: The Approach Of The Obama Administration, Winston Nagan, Erin Slemmens Nov 2014

Developing U.S. Nuclear Weapons Policy And International Law: The Approach Of The Obama Administration, Winston Nagan, Erin Slemmens

Winston P Nagan

Prior U.S. presidential administrations have developed and adhered to the nuclear weapons policy of nuclear deterrence. This policy was largely conditioned by the Cold War and the fact that the U.S. Cold War adversary was a major threat to U.S. security because of its nuclear capability. The policy of nuclear deterrence worked on the principle of mutually assured destruction. It appears to have had the effect of discouraging recourse to nuclear weapons as instruments of war. It has also been generally perceived as a position that has an uneasy relationship with conventional international law. Even before entering ...


Protecting Vulnerable Environments In International Humanitarian Law, Michaela Halpern Oct 2014

Protecting Vulnerable Environments In International Humanitarian Law, Michaela Halpern

Michaela Halpern

One of the fundamental principles of International Humanitarian Law, if not the fundamental principle, is the need to distinguish combatants from civilians and civilian objects in the course of belligerency. One of the most important civilian objects is the environment in which civilians live. However the importance of the environment has not been a focus of International Humanitarian Law until recent years. Rules of International Humanitarian Law now account for environmental matters generally but are not adequate to deal with particular "vulnerable" environments, such as the Arctic and the Amazon. Changes in these environments have the potential for world-wide repercussions ...


Combating Terrorism With The Alien Terrorist Removal Court, Jonathan Yu Oct 2014

Combating Terrorism With The Alien Terrorist Removal Court, Jonathan Yu

Jonathan Yu

No abstract provided.


Unintended Consequences: The Posse Comitatus Act In The Modern Era, Mark P. Nevitt Sep 2014

Unintended Consequences: The Posse Comitatus Act In The Modern Era, Mark P. Nevitt

Mark P Nevitt

America was born in revolution. Outraged at numerous abuses by the British crown—to include the conduct of British soldiers in the colonists’ daily lives— Americans declared their independence, creating a new republic with deep suspicions of a standing Army. These suspicions were intensely debated at the time of the nation’s formation and enshrined in the Constitution. But congressional limitations on the role of the military in day-to-day affairs would have to wait. They were not put in place until after the Civil War when southern congressmen successfully co- opted the framers’ earlier concerns of a standing Army and ...


Interpreting Force Authorization, Scott Sullivan Sep 2014

Interpreting Force Authorization, Scott Sullivan

Scott Sullivan

This Article presents a theory of authorizations for the use of military force (AUMFs) that reconcilesseparation of power failures in the current interpretive model. Existing doctrine applies the same text-driven models of statutory interpretation to AUMFs that are utilized with all other legal instruments. However, the conditions at birth, objectives and expected impacts underlying military force authorizations differ dramatically from typical legislation. AUMFs are focused but temporary corrective interventions intended to change the underlying facts that prompted their passage. This Article examines historical practice and utilizes institutionalist principles to develop a theory of AUMF decay that eschews text in favor ...


U.S. Military Responsibility For Environmental Clean Up In Contingency Environments, Jennifer Neuhauser Sep 2014

U.S. Military Responsibility For Environmental Clean Up In Contingency Environments, Jennifer Neuhauser

Jennifer Neuhauser

U.S. Military Responsibility for Environmental Clean Up in Contingency Environments Environmental destruction is an inevitable by-product of warfare. However, the new paradigm of U.S. military contingency operations requires a strategic vision beyond merely engaging the enemy. American military commanders in the 21st century must also seek to win the “hearts and minds” of the local population in order to solidify gains and ensure lasting victory. Unfortunately, many commanders have not adapted to this new way of thinking. As a result, commanders fail to consider the long-term environmental damage inflicted by their soldiers during combat operations, damage which must ...


Hannibal At The Gate: Border Kids, Drugs, And Guns – And The Mexican Cartel War Goes On, Arthur Rizer Aug 2014

Hannibal At The Gate: Border Kids, Drugs, And Guns – And The Mexican Cartel War Goes On, Arthur Rizer

Arthur L. Rizer III

This article argues that the current cartel war in Mexico represents a clear and present danger to the national security of the United States. Some have estimated Mexico, one of the United States’ closest allies, has lost more than 60,000 people in its drug war. That is approximately a murder every hour related to cartel violence. Some experts claim the death toll has been greatly soft-pedaled, with the government reducing violence by simply not reporting it, and that the actual death toll is over 100,000. These numbers do not even include the nearly 40,000 Americans who die ...


The National Historic Preservation Act: Preserving History, Impacting Foreign Relations?, Mark P. Nevitt Aug 2014

The National Historic Preservation Act: Preserving History, Impacting Foreign Relations?, Mark P. Nevitt

Mark P Nevitt

The National Historic Preservation Act (NHPA) is a remarkable statutory success story, properly lauded for protecting American historic properties since its passage in 1966. But there is another, more intricate story to the NHPA. Congress added a unique extraterritoriality provision to the NHPA, implementing U.S. obligations under the World Heritage Convention (WHC), a treaty that protects properties of cultural and natural heritage worldwide. This provision requires federal agencies to take into account the effect of any undertaking outside the United States on the applicable nation’s equivalent National Register. Its proper scope and jurisdiction were unclear–until recently.
A ...


The Road Most Travel: Is The Executive’S Growing Preeminence Making America More Like The Authoritarian Regimes It Fights So Hard Against?, Ryan T. Williams Aug 2014

The Road Most Travel: Is The Executive’S Growing Preeminence Making America More Like The Authoritarian Regimes It Fights So Hard Against?, Ryan T. Williams

Ryan T. Williams

Since September 11, 2001, the Executive branch of the Unites States government continues to accumulate power beyond which is granted to it under the U.S. Constitution. This Article examines how the Executive wields this additional power through a secret surveillance program, the indefinite detention of terror suspects, and the implementation of a kill list, where Americans and non-Americans alike are targeted and killed without any judicial determination of guilt or innocence. Moreover, Congress and the Judiciary have condoned the Executive’s unconstitutional power accumulation by not only remaining idle and refusing to challenge this taking, but by preventing other ...


A Competition Of Minds And A Penetration Of Souls: How Short-Term Interrogation Tactics After 9/11 Led To Grave Long-Term Unintended Consequences Today (As Told Through The Voices Of Four Interrogators), Peter Honigsberg Aug 2014

A Competition Of Minds And A Penetration Of Souls: How Short-Term Interrogation Tactics After 9/11 Led To Grave Long-Term Unintended Consequences Today (As Told Through The Voices Of Four Interrogators), Peter Honigsberg

Peter J Honigsberg

No abstract provided.


Back To The Future With The Uniform Code Of Military Justice: The Need To Recalibrate The Relationship Between The Military Justice System, Due Process, And Good Order And Discipline, Anthony Ghiotto Jul 2014

Back To The Future With The Uniform Code Of Military Justice: The Need To Recalibrate The Relationship Between The Military Justice System, Due Process, And Good Order And Discipline, Anthony Ghiotto

Anthony J. Ghiotto

In recent years, the military justice system has come under increased Congressional and public scrutiny. Driving much of this increased scrutiny is the issue of sexual assault. The dramatic increase in reported sexual assaults, coupled with the military’s response, resulted in public officials calling for dramatic reform of the military justice system. These calls for reform included limiting, and even removing, the role commanders play in the military justice system. The military departments must proceed carefully, though, with these calls for reform. Dramatic reforms designed to correct the apparent flaws in the military justice system may in turn undermine ...


The New World Order: Humanitarian Interventions From Kosovo To Libya And Perhaps Syrian?, Ilan Fuchs, Harry Borowski Jul 2014

The New World Order: Humanitarian Interventions From Kosovo To Libya And Perhaps Syrian?, Ilan Fuchs, Harry Borowski

Ilan Fuchs

The Involvement of NATO forces in the toppling of Libyan longtime dictator Muammar Kaddafi was received with standing ovation in world media. The Libyan dictator was involved in terrorism and in crimes not only against his own people but against citizens of many other countries as well. One question seems to have been overlooked: under what grounds did NATO join an armed non-international conflict? This article will reevaluate the few sources that discuss the issue and offer a model that will help define the ambiguous scenario of humanitarian intervention.


Defensive Armed Reprisals: An Expression Of Legitimate Self-Defence Or An Abuse Of Power? - An Examination Of Dr. Yoram Dinstein's Thesis, Michaela Halpern May 2014

Defensive Armed Reprisals: An Expression Of Legitimate Self-Defence Or An Abuse Of Power? - An Examination Of Dr. Yoram Dinstein's Thesis, Michaela Halpern

Michaela Halpern

No abstract provided.


Enlightening The Forgotten: Removal Of State Cases Involving Service-Members Into Federal Courts, Michael C. Walsh May 2014

Enlightening The Forgotten: Removal Of State Cases Involving Service-Members Into Federal Courts, Michael C. Walsh

Michael C Walsh

No abstract provided.