Law Commons^™

Belief In War, Mary Ellen O'Connell

Journal Articles

Introductory Statement

Belief in war dominates our world. From Ukraine to Sudan to America’s ‘war on terror’, extraordinary resources are poured into militaries and arms races. The explanation for why belief in war has become prominent in foreign and security policy in Russia, the United States., China, NATO states and many other places is linked to the influence of Realist political theory. Pope St. John XXIII’s encyclical Pacem in Terris argued for honoring the alternatives to Realism – international law and institutions. It is time for an encyclical that responds directly to Realism and teaches belief in the authentic natural …

Ukraine's Push To Prosecute Aggression: Implications For Immunity Ratione Personae And The Crime Of Aggression, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Russia’s aggression against Ukraine dates back to its 2014 annexation of Ukraine’s southern peninsula, Crimea. It was Russia’s brazen full-scale invasion of Ukraine on February 24, 2022, however, that captured global attention and put the crime of aggression – the resort to war in violation of the UN Charter3 – in the spotlight.

Fashion In The Times Of War: The Recent Exodus Of Luxury Brands From Russia And What It Means For Trademark Law, Irene Calboli, Vera Sevastianova

Faculty Scholarship

In February 2022, Russia infamously invaded Ukraine, starting an unprovoked war. As a result, many foreign companies left their Russia-based operations, including most luxury fashion houses. In these remarks, we elaborate on the possible issues that these companies may face regarding the enforcement of their IP rights in Russia, particularly trademark rights, following their departure resulting from the sanctions imposed by Western countries.

At the time of writing, perhaps the most pressing issue is whether luxury fashion houses risk losing their trademark rights in Russia due to their decision to suspend their operations, even though temporarily. An additional issue facing …

Law School News: Adjunct Professor Of The Year 2021: David Coombs 05/19/2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Self-Defense To Cyber Force: Combatting The Notion Of 'Scale And Effect', Thomas Eaton

Scholarly Works

The ability to reach out, with a few keystrokes or a couple lines of code, through the interconnected world of cyberspace and create militarily advantageous effects 10,000 miles away has changed warfare as previously conceived, perhaps more than any other advancement in any other domain of war. Cyber weapons are weapons, and whatever law applies to conventional weapons equally applies to cyber weapons. Long before cyber operations were even science fiction, there was much debate over what constituted a use of force that would justify force in response. In many ways, the debate over what constitutes cyber-attacks has been pasted …

Law School News: Adjunct Professor Of The Year: David Coombs 05-13-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The Proportionality Rule And Mental Health Harm In War, Sarah Knuckey, Alex Moorehead, Audrey Mccalley, Adam Brown

Faculty Scholarship

The foundational international humanitarian law rule of proportionality — that parties to an armed conflict may not attack where civilian harm would be excessive in relation to the anticipated military advantage — is normally interpreted to encompass civilian physical injuries only. Attacks may cause significant mental harms also, yet current interpretations of the law lag behind science in understanding and recognizing these kinds of harms. This article analyzes legal, public health, psychology, and neuroscience research to assess the extent to which mental health harms should and could be taken into account in proportionality assessments.

Law As Strategy: Thinking Below The State In Afghanistan, Charles H. Norchi

Faculty Publications

U.S.engagement in Afghanistan is inevitable, but there will be choices about strategy. In 1952, the U.S.Naval War College convened a lecture series devoted to strategy. On March 20, the lecturer was Harold D.Lasswell, an architect of the New Haven School of Jurisprudence. Lasswell observed, “The aim of strategy is to maximize the realization of the goal values of the body politic.” This article proposes that law is among the available strategic instruments to advance goal values common to the United States, Afghanistan,and the world community.

Who Owns The Rules Of War In Today's Post-Post-Cold War?, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

Professor Gabriella Blum's The Paradox of Power observes that international humanitarian law (IHL) has been in a long. term evolution toward putting the principle of "humanitarianism" and civilian protection at its normative and legal center. The Lecture (on which this essay is a commentary) identifies several reasons for this, in particular (within and across liberal democratic societies) social acceptance of IHL as law but also as socially internalized norms that give IHL broad moral legitimacy. Accepting The Paradox of Power's main propositions as cor rect, this Commentary extends its account in several ways. First, The Paradox of Power's combination of …

Book Review, Anna Spain Bradley

Publications

No abstract provided.

The Internationalists: How A Radical Plan To Outlaw War Remade The World, Mary Ellen O'Connell

Journal Articles

Mary Ellen O'Connell researches and writes in the areas of international law and the use of force and international legal theory. She provides a thorough review of The Internationalists: How a Radical Plan to Outlaw War Remade the World, Oona A. Hathaway and Scott J. Shapiro (New York: Simon and Schuster, 2017), wherein the authors investigate the investigate the history, nature, and impact of the international legal prohibition on the use of force, focusing on the Kellogg-Briand Pact.

Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia, Bradford R. Clark

Journal Articles

We are grateful to the judges and scholars who participated in this Symposium examining our book, The Law of Nations and the United States Constitution. One of our goals in writing this book was to reinvigorate and advance the debate over the role of customary international law in U.S. courts. The papers in this Symposium advance this debate by deepening understandings of how the Constitution interacts with customary international law. Our goal in this Article is to address two questions raised by this Symposium that go to the heart of the status of the law of nations under the Constitution. …

The Work Of International Law, Monica Hakimi

Articles

This Article crystallizes and then critiques a prominent view about the role of international law in the global order. The view - what I call the "cooperation thesis" - is that international law serves to help global actors cooperate, specifically by: (1) curbing their disputes, and (2) promoting their shared goals. The cooperation thesis often appears as a positive account of international law; it purports to explain or describe what international law does. But it also has normative force; international law is widely depicted as dysfunctional when it does not satisfy the thesis. In particular, heated or intractable conflict is …

Constructing Citizenship Through War In The Human Rights Era, Timothy W. Waters

Articles by Maurer Faculty

War's historical relationship to the creation of territorial nation-states is well known, but what empirical and normative role does war play in creating the citizen in a modern democracy? Although contemporary theories of citizenship and human rights do not readily acknowledge a legitimate, generative function for war - as evidenced by restrictions on aggression, annexation of occupied territory, expulsions, denationalization, or derogation of fundamental rights - an empirical assessment of state practice, including the interpretation of international legal obligations, suggests that war plays a powerfully transformative role in the construction of citizenship, and that international law and norms implicitly accept …

Americans Have Yet To Grasp The Horrific Magnitude Of The ‘War On Terror’, Lauren Carasik

Media Presence

No abstract provided.

Toll Of U.S. Invasion Haunts Iraq, Lauren Carasik

Media Presence

No abstract provided.

Nuclear Kellogg-Briand Pact: Proposing A Treaty For The Renunciation Of Nuclear Wars As An Instrument Of National Policy, David A. Koplow

Georgetown Law Faculty Publications and Other Works

This article performs three functions. First, it offers a revisionist interpretation of the 1928 Kellogg-Briand Pact, the much-maligned treaty through which the key powers of the era, led by the United States, undertook to “outlaw” war, renouncing it as a tool of national policy and committing themselves to resort exclusively to pacific means for the resolution of their international disputes. Because of Kellogg-Briand’s inability to prevent the outbreak of World War II, the treaty has been derided for decades as a futile, utopian illusion, but this article argues that it was, in fact, a tremendous success in altering states’ attitudes …

Book Review: Reimagining Child Soldiers In International Law And Policy By Mark A. Drumbl., Diane Marie Amann

Scholarly Works

Book review of Reimagining Child Soldiers in International Law and Policy by Mark A. Drumbl(New York: Oxford Univ. Press, 2012).

The Secret "Kill List" And The President, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Custom, General Principles And The Great Architect Cassese, Mary Fan

Articles

Major advances in international criminal law and procedure rose on the trusses of judicially elucidated sources of international law—custom and general principles. These sources depend on the crucial art of derivation advanced by the architect of modern international criminal justice, President Antonio Cassese. What has transformed international criminal justice into flourishing law able to address changing configurations of violence is the development of the art of finding law in the dark and wilds of murky unwritten norms. [para] President Cassese pioneered paths through a perilous bog. "[T]he law lives in persons," and to understand the law one must study the …

Proportionality In Counterinsurgency: A Relational Theory, Evan J. Criddle

Faculty Publications

At a time when the United States has undertaken high-stakes counterinsurgency campaigns in at least three countries (Afghanistan, Iraq, and Pakistan) while offering support to insurgents in a fourth (Libya), it is striking that the international legal standards governing the use of force in counterinsurgency remain unsettled and deeply controversial. Some authorities have endorsed norms from international humanitarian law as lex specialis, while others have emphasized international human rights as minimum standards of care for counterinsurgency operations. This Article addresses the growing friction between international human rights and humanitarian law in counterinsurgency by developing a relational theory of the use …

Beyond War: Bin Laden, Escobar, And The Justification Of Targeted Killing, Luis E. Chiesa, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

Using the May 2011 killing of Osama bin Laden as a case study, this Article contributes to the debate on targeted killing in two distinct ways, each of which has the result of downplaying the centrality of international humanitarian law (IHL) as the decisive source of justification for targeted killings.

First, we argue that the IHL rules governing the killing of combatants in wartime should be understood to apply more strictly in cases involving the targeting of single individuals, particularly when the targeting occurs against nonparadigmatic combatants outside the traditional battlefield. As applied to the bin Laden killing, we argue …

The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark

Journal Articles

Courts and scholars continue to debate the status of customary international law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect of these …

Children At War: The Criminal Responsibility Of Child Soldiers, Megan Nobert

Pace International Law Review Online Companion

The problem of child soldiers is not going to go away. While it may not be a popular solution, child soldiers need to be prosecuted for the actions they commit during conflicts in addition to the prosecution of child soldier recruiters. Without legal ramifications, there is no incentive for the child soldier recruiters to stop their actions. This article explores how both child soldiers and their recruiters can be prosecuted for actions committed during conflict.

Subject To Surveillance: Genocide Law As Epistemology Of The Object, Tawia Baidoe Ansah

Faculty Publications

This article analyzes the discourse on genocide from two angles: the legal genesis of the term in the 1940s and subsequent legal "capture" of the concept of genocide, and a recent socio-political critique of the legal meaning of genocide. The article suggests that a cross-disciplinary critique of genocidal violence not only describes the event and the victim, but also produces knowledge of them as discursive "objects." The key issue is the "surveillance" role of the outside observer, also produced as such in discursive relation to the object. At stake in this view of genocide law as epistemology is the capacity …

The Law Of War In The War Against Terrorism, Michael A. Newton

Vanderbilt Law School Faculty Publications

The struggle to define the contours of the legal regime and to correctly communicate those expectations to the broader audience of civilians is a recurring problem that is integrally related to the current evolution of warfare. Shaping the expectations and perceptions of the political elites who control the contours of the conflict is perhaps equally vital. The paradox is that as the legal regime applicable to the conduct of hostilities has matured over the last century, the legal dimension of conflict has at times overshadowed the armed struggle between adversaries. As a result, the overall military mission will often be …

Propaganda For War And Transparency, Richard B. Collins

Publications

No abstract provided.

Foreword: Lawfare!, Michael P. Scharf, Shannon Pagano

Faculty Publications

Forward to the Case Western Reserve Journal of International Law's symposium "Lawfare!" 2012, Cleveland, OH.

Opting Out Of The Law Of War: Comments On 'Withdrawing From International Custom', David Luban

Georgetown Law Faculty Publications and Other Works

This paper is a response to Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom, 120 Yale LJ 202 (2010), which argues against the "Mandatory View" (according to which states are bound by customary international law with no possibility of opting out), and in favor of a "Default View" which permits states to opt out of international custom unilaterally. My response offers the following arguments: (1) Currently, the most significant contested issue about customary international law in U.S. discourse concerns the laws of war -- a topic that Bradley and Gulati treat only briefly and incidentally. Their proposal would …

An Appropriate Focus On War, Mary Ellen O'Connell

Journal Articles

This paper is part of book discussion featuring the 2009 Winner of the ASIL Certificate of Merit for Creative Scholarship--The Historical Foundations of World Order: The Tower and the Arena, by Douglas M. Johnston.

This panel was convened at 1:00 pm, Thursday, March 26, 2009 by its moderator, Devashish Krishan of Baker Botts LLP, who introduced the panelists:

• David Bederman, Emory University School of Law
• Tai-Heng Cheng, New York Law School
• John Crook, George Washington University Law School
• Mary Ellen O'Connell, University of Notre Dame Law School

The full issue of the proceedings is available via Oxford University Press