Military, War, and Peace Commons^™

Protecting Vulnerable Environments In International Humanitarian Law, Michaela Halpern

Michaela S. Halpern

The Conflict Of Laws In Armed Conflicts And Wars, John C. 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 differs in cases …

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.

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

Managing Cyberthreat, Lawrence J. 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 used …

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 cede power. Once hailed as …

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

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 passed a …

Interpreting Force Authorization, Scott Sullivan

Scott Sullivan

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 each year from …

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

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 J. Honigsberg

Peter J Honigsberg

No abstract provided.

"To Kill A Cleric?: The Al-Awlaki Case And The Chaplaincy Exception Under The Laws Of War", K Benson

K Benson

Anwar al-Awlaki was the first American citizen to be targeted for extrajudicial assassination by the Obama administration. While scholarly attention has focused on legality of his killing under domestic law, his status as a chaplain under International Humanitarian Law (IHL) has gone unexamined. The possibility that Anwar al-Awlaki may have been a protected person as a chaplain has profound ramifications for the legality of his killing and for the conduct of the war on terror more generally. As the definition of a "Chaplain" under IHL is under-developed at best and vague at worst, ideologues such as Mr. al-Awlaki operate in …

Children, Armed Conflict, And Genocide: Applying The Law Of Genocide To The Recruitment And Use Of Children In Armed Conflict, Jeffery R. Ray

Jeffery R Ray

This paper shows that the use of child soldiers in armed conflict has the potential to be considered as genocide. A brief background of genocide is presented prior to the analysis. Part I, of the analysis, will discuss three issues: First, the modern understanding of genocide and the substantive areas of law that govern it; Second, the definition of ‘child’ within the international arena as it relates to child soldering; Third, a discussion to determine if children can constitute a ‘group’ in the context of the law of genocide. Part II provides a discussion elaborating on Part I then analyzing …

Ucmj Article 66(C) And The Case To End The Courts Of Criminal Appeals De Novo Review Of Factual Sufficiency, Matt C. Pinsker

Matt C Pinsker

Under UCMJ Article 66(c), the military’s courts of criminal appeals have the unusual appellate power of conducting a de novo review of a trial court’s findings of fact. Congress gave the military’s appellate courts their unusual fact-finding powers in 1950 because under the original UCMJ, special and general courts-martials were highly unprofessional proceedings which were susceptible to command influence, creating the risk of unjustly convicting innocent servicemembers. Originally, there were not even judges presiding at summary courts-martials. Instead, a senior line officer untrained in law was designated president of the panel and was responsible for making legal decisions such as …

U.S. Judicial Independence: Victim In The “War On Terror”, Wayne Mccormack

Wayne McCormack

One of the principal victims in the U.S. so-called "war on terror" has been the independence of the U.S. Judiciary. Time and again, challenges to assertedly illegal conduct on the part of government officials have been turned aside without addressing the merits, either because of overt deference to the Government or because of special doctrines such as state secrets and standing requirements. This paper catalogs the principal cases first by the nature of the government action challenged and then by the special doctrines invoked. The U.S. judiciary has virtually relinquished its valuable role of judicial review. In the face of …

A Maelstrom Of International Law And Intrigue: The Remarkable Voyage Of The S.S. City Of Flint, Andrew J. Norris

Andrew Norris

No abstract provided.

Combatant Immunity In Non-International Armed Conflict, Past And Future, Rymn J. Parsons

Rymn J Parsons, Esq.

No abstract provided.

Direct Participation In Hostilities From Cyberspace, Collin Allan

Collin Allan

As demonstrated by the cyber attacks against Georgia in 2008 and the cyber attacks against Aramco in 2012, civilians are increasing their participation in armed conflicts through cyber attacks. In 2009, the International Committee of the Red Cross (ICRC) published a document on how to determine when a civilian’s participation in armed conflict reaches the necessary level to render him or her targetable by one of the parties to the conflict. The Tallinn Manual was published this year to provide legal guidance in cyber situations. While professionals have written in this area previously, it is the first time that experts …

Terrorism And Associations, Ashutosh A. Bhagwat

Ashutosh Bhagwat

The domestic manifestation of the War on Terror has produced the most difficult and sustained set of controversies regarding the limits on First Amendment protections for political speech and association since the anti-Communist crusades of the Red Scare and McCarthy eras. An examination of the types of domestic terrorism prosecutions that have become common since the September 11 attacks reveals continuing and unresolved conflicts between national security needs and traditional protections for speech and (especially) associational freedoms. Yet the courts have barely begun to acknowledge, much less address, these serious issues. In the Supreme Court’s only sustained engagement with these …

Cipa V. State Secrets: How A Few Mistakes Confused Two Important National Security Privileges, Elisa Poteat

Elisa Poteat

No abstract provided.

Is Torture Justified In Terrorism Cases?: Comparing U.S. And European Views, Stephen P. Hoffman

Stephen P. Hoffman

This essay discusses issues of torture and some of the philosophical underpinnings. First, I define torture as it is used in international and human rights law. Then, I discuss three primary theories of torture: deontology, consequentialism, and threshold deontology. After setting this groundwork, I introduce particular issues in terrorism cases such as the “ticking bomb” scenario, which is often used to argue that torture may be appropriate and possibly required when done to save many lives. This invariably must include a discussion of the necessity doctrine, the legal doctrine allowing an individual to take extraordinary — even illegal — measures …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

The Military Abortion Ban: How 10 U.S.C. Section 1093 Violates International Standards Of Reproductive Healthcare, Sabrina E. Dunlap

ExpressO

Under 10 U.S.C. Section 1093, women in the military cannot obtain abortion services in military hospitals even if they use their own funds. Women who are stationed abroad are forced to search for services elsewhere in the foreign country in which they are stationed, facing cultural barriers, language barriers, difficult travel arrangements and high costs. In the last ten years, clear standards of reproductive health emerged at an international level, with women’s health being the center of the International Conference on Population and Development, and the Fourth World Conference on Women, among others. The United States is simultaneously encouraging developing …

The Legality Of The Use Of White Phosphorus By The United States Military During The 2004 Fallujah Assaults, Roman O. Reyhani

ExpressO

The assaults on Fallujah by the United States military in April and November 2004 involved the use of white phosphorus. White phosphorus has extremely damaging effects on the health of victims, including severe burns and irritation of the respiratory system. This article examines whether the use of white phosphorus was a violation of the Chemical Weapons Convention, Protocol III to the Convention on Conventional Weapons and international humanitarian law. It concludes that the use of white phosphorus was illegal as it could be argued to be a chemical weapon, a riot control agent, or incendiary weapon. Furthermore, the methods and …

Essay: Special Operations Forces And War Crimes By Guerillas, Gregory R. Bart

ExpressO

No abstract provided.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

American Military Justice And International Criminal Court Complementarity: The Case Of Ucmj Article 60, Allen J. Dickerson

ExpressO

Although the American military is effectively one of the most potent of international institutions, discussions of its regulation have been oddly domestic. The court-martial – the single most important institution for disciplining military forces, preventing atrocities and punishing offenders – has seen its jurisdiction and procedures hotly debated, but most often by those in uniform or individuals interested in domestic military policy. This paper aims to internationalize the discussion, recognizing that the discipline of American military forces is of major concern to both international law and U.S. foreign policy. By exploring the interaction between a major innovation in international law …

Semper Disqualified: The Incongruity Between Federal And State Suffrage Protections For Certain Military Voters Seeking To Vote In State And Local Elections, And A Possible Legislative Remedy, Alexandra R. Harrington

ExpressO

It is axiomatic that members of the United States military forces at all levels and throughout the course of the nation’s history have fought for the essential freedoms which underlie the constitution – key among them the suffrage right. Over the course of its history, the suffrage right has seen controversy and change, which mirrored the social and political issues and changed realities of the country. As the right to vote has been extended to encompass more citizens, so too has the ability to serve one’s country as part of the military. In recognition of the importance of the right …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.