Law Commons^™

Proportionality Under International Humanitarian Law: The "Reasonable Military Commander" Standard And Reverberating Effects, Ian Henderson, Kate Reece

Vanderbilt Journal of Transnational Law

The principle of proportionality protects civilians and civilian objects against expected incidental harm from an attack that is excessive to the military advantage anticipated from the attack. However, despite its status as a fundamental norm of international humanitarian law (IHL), key terms are not defined in relevant treaties nor do they benefit from critical judicial explanation. This has caused challenges for both academics and military commanders alike in explaining and applying the test for proportionality.

The Article expands upon two points that were raised and generated interesting discussion at The Second Israel Defense Forces International Conference on the Law of …

Challenges In The Interpretation And Application Of The Principle Of Distinction During Ground Operations In Urban Areas, Colonel Noam Neuman

Vanderbilt Journal of Transnational Law

This Article focuses on the tension between the often-referred-to articulation of the principle of distinction, as reflected in Additional Protocol I, and four practices that have been continuously employed in ground operations by most if not all of the world's militaries: masking, firing warning shots, breaching structures, and maneuvering with heavy machinery. These practices may very well result in incidental harm to civilians or incidental damage to civilian objects, yet they are either directed at an object that is not necessarily a military objective or they are not directed at any object or person at all. In light of the …

Governing Xenophobia, E. Tendayi Achiume

Vanderbilt Journal of Transnational Law

The problem of xenophobia has gained remarkable notoriety of late, and reports from around the world paint a chilling picture of its virulence, especially where refugees and other involuntary migrants are concerned. How should one understand this global picture of xenophobic contestation and its fallout, and specifically, how should one understand international law's relationship to both?

The first contribution of this Article is to introduce an emerging global framework intended by states and other international actors to improve global cooperation to combat the problem of xenophobia. This global anti-xenophobia framework (the Framework) is rooted in international human rights law and …

Ebola Does Not Fall From The Sky: Structural Violence & International Responsibility, Matiangai Sirleaf

Vanderbilt Journal of Transnational Law

This Article challenges the conventional understanding that international crises are limited to instances of direct physical violence. Instead, it argues that the disproportionate distribution of infectious diseases like Ebola is a form of structural violence that warrants international intervention. In the field of global public health, structural violence is a concept used to describe health inequities and to draw attention to the differential risks for infection in the Global South, and among those already infected, for adverse consequences including death, injury, and illness. This Article clarifies how the concept of structural violence can be operationalized in law. It illustrates the …

Four Comments On The Application Of Proportionality Under The Law Of Armed Conflict, Lieutenant Colonel Roni Katzir

Vanderbilt Journal of Transnational Law

The existence of the principle of proportionality as a norm is undisputed, and military commanders in armed conflicts around the world apply it continuously. As the principle is formulated in general terms--prohibiting attacks that may be expected to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects, or a combination thereof, that would be excessive in relation to the military advantage anticipated--it is also clear that interpreting and applying the different elements of the principle is no simple task.

This Article shall consider four select issues regarding different elements of the principle of proportionality.

First …

Reframing The Proportionality Principle, Michael A. Newton

Vanderbilt Journal of Transnational Law

Proportionality functions as one of the most important legal constraints applicable to the conduct of hostilities. In that context, this short essay discusses the commonly encountered misapplications of Cicero's classic sentiment that "salus populwe supremus est lex...silent enim leges inter armes." Rather than serving as a necessary basis for a positive articulation of lawful force as an exception to the norm, jus in bello proportionality delineates the outer boundaries of the commander's appropriate discretion. The mere invocation of jus in bello proportionality cannot become an effective extension of asymmetric combat power by artificially crippling combatant capabilities. This essay ends by …

What's Your Advice, Counsel? From Distinction To Detention, Financial Support To Ground Support, And Everything In Between, Journal Staff

Vanderbilt Journal of Transnational Law

An informal summary of the discussions that took place in the Workshop Session of the 2nd IDF International Conference on the Law of Armed Conflict, held April 25-27, 2017. In this session, conference participants were given practical scenarios on a range of issues for consideration. In adherence with the Chatham House Rule, the summary is presented without reference to the identity or affiliation of the participants.

Enemy-Controlled Battlespace": The Contemporary Meaning And Purpose Of Additional Protocol I'S Article 44(3) Exception, Kubo Macak, Michael N. Schmitt

Vanderbilt Journal of Transnational Law

The contemporary propensity for, and risk of, armed conflict taking place among the civilian population has cast a new light on several long-standing challenges to the application of international humanitarian law (IHL). One is the determination of combatant status and, more specifically, the question of when the requirement for the combatants to distinguish themselves from the civilian population may exceptionally be relaxed. In addressing this question, the Article re-examines Additional Protocol I's Article 44(3) and adopts an interpretation thereof that better comports with its object and purpose than those previously prevalent. After exposing the limitations of relying solely on drafting …

The Role Of Nonstate Entities In Developing And Promoting International Humanitarian Law, Dr. Knut Dormann

Vanderbilt Journal of Transnational Law

In recent years, both states and nonstate entities, the number of which has increased, have found ways to stimulate debate about how to interpret, apply, and clarify international humanitarian law (IHL). The development, interpretation, and clarification of IHL have largely occurred not so much through treaty making, but through other, non-legally binding avenues. There is a spectrum of such activity, ranging from state-driven processes aimed at producing non-legally binding outcomes, to hybrid processes involving states, independent experts, and various bodies. The International Committee of the Red Cross (ICRC) serves as a prominent actor in this regard, initiating ICRC-specific initiatives, expert …