Law Commons^™

Why A President Cannot Authorize The Military To Violate (Most Of) The Law Of War, John C. Dehn

William & Mary Law Review

Waterboarding and “much worse,” torture, and “tak[ing] out” the family members of terrorists: President Trump endorsed these measures while campaigning for office. After his inauguration, Trump confirmed his view of the effectiveness of torture and has not clearly rejected other measures forbidden by international law. This Article therefore examines whether a President has the power to order or authorize the military to violate international humanitarian law, known as the “law of war.” Rather than assess whether the law of war generally constrains a President as Commander-in-Chief, however, its focus is the extent to which Congress requires the U.S. military to …

The Japanese Impact On Global Drone Policy And Law: Why A Laggard United States And Other Nations Should Look To Japan In The Context Of Drone Usage, Kaitlin D. Sheets

Indiana Journal of Global Legal Studies

The global Unmanned Aircraft System, or unmanned aerial systems (UAS) revolution is poised to have an impact across a broad range of industries from agriculture to filmmaking. The United States has taken a difficult and slower path to implementing UAS policy, with Congress essentially mandating the Federal Aviation Administration (FAA) to take action in 2015. The FAA's 624-page rulebook marks the first attempt of any comprehensive plan to regulate remote-controlled and commercial aircraft activity. Across the globe, Japan, a country with a proven track record in electronics and technology, is outpacing other countries in devising regulations that will increase UAS …

Silent War: Applicability Of The Jus In Bello To Military Space Operations, Kubo Mačák

International Law Studies

There are no molecules of air that could carry sound waves in the vacuum of outer space. Accordingly, space warfare may well become the first type of war whose signature sound would be—silence. But does the law of armed conflict (jus in bello) fall silent in times of Silent War? This article addresses the uncertainty at the heart of this issue. First, it delineates the relevant conceptual framework by examining the factual notion of “military space operations,” and its relationship with the legal concept of “armed conflict,” as well as the overlap between the potentially applicable bodies of …

International Coalitions And Non-Militarily Contributing Member States: A Perspective From Panama’S Practice And The Law Of Neutrality, Alonso E. Illueca

University of Miami Inter-American Law Review

The military actions of an International Coalition and the role of its non-military contributing member States is yet another fundamental example of international practice concerning conflation between jus ad bellum and jus in bello. Although International Law proscribes the use of force in international relations, membership in an International Coalition engaged in military operations does not come without a cost. Non-military contributing member States may be regarded as co-belligerents or neutral States violating the laws of neutrality. This article argues that mere membership in a coalition does not amount to co-belligerency. Nevertheless, it claims that membership could entail a violation …

Targeting, The Law Of War, And The Uniform Code Of Military Justice, Michael W. Meier, James T. Hill

Vanderbilt Journal of Transnational Law

Allegations of civilian deaths or injury or damage to civilian property caused during combat operations require an investigation to determine the facts, make recommendations regarding lessons learned in order to prevent future occurrences, and recommend whether individual soldiers should be held accountable. Using the factual circumstances of the airstrike on the Medecins Sans Frontieres hospital, this Article articulates how, in the context of targeting, a violation of the Law of War is made punishable under the Uniform Code of Military Justice as explained by the recent Targeting Supplement promulgated by The Judge Advocate General of the Army.

Justice Against Sponsors Of Terrorism: Why Suing Terrorists May Not Be The Most Effective Way To Advance United States Foreign Policy Objectives, Drew Watkins

Kentucky Law Journal

No abstract provided.

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 …

Humanitarian Regulation Of Hostiles: The Decisive Element Of Context, Geoffrey S. Corn

Vanderbilt Journal of Transnational Law

Today, isolated force-on-force battles are considered a relic of the past. Instead, armed forces must expect to conduct combined arms maneuver operations in and around civilians and civilian population centers. And this expectation is only increased when anticipating operations against enemies who see embedding their vital assets in densely populated areas as a force multiplier. This perception is based on not only the inherent tactical advantages of embedding assets among civilian population centers (such as ready access to logistics and lines of communication), but also their recognition that the complexity of conducting operations against these assets in a legally compliant …

Some Reflections On The "Incidental Harm" Side Of Proportionality Assessments, Emanuela-Chiara Gillard

Vanderbilt Journal of Transnational Law

The rule on proportionality represents the most apparent manifestation of the balance between military necessity and considerations of humanity that underpins IHL. As military operations are taking place in densely populated areas with increasing frequency, the rule's significance for the protection of civilians has become even more key. It is of central relevance to the current discussions on the use of explosive weapons in populated areas.

Determining what falls into the two "sides" of the proportionality assessment as clearly as possible is essential to the proper application of the rule in practice. The expected "military advantage side" of the equation …

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 …

Preparing To Commit Domestic Terrorist Activity: Does The United States Have Adequate Tools To Stop This?, Diane Webber

American University International Law Review

No abstract provided.

Military Officers And The Civil Office Ban, Stephen Vladeck

Indiana Law Journal

In the symposium Essay that follows, I aim to push back against this impression by introducing readers to an important—but little-known—constraint on the militarization of civilian government: the ban on active-duty military officers holding “civil office” codified today at 10 U.S.C. § 973(b). Like its far-better-known contemporary, the Posse Comitatus Act of 1878, the civil office ban was enacted after the Civil War as a means of limiting the ability of the military to exercise control over civilian matters. As the Ninth Circuit put it in 1975, its purpose was “to assure civilian preeminence in government, i.e., to prevent the …

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 …

Operational Challenges In Ground Operations In Urban Areas: An Idf Persphctive, Nitsan Alon, Major General

Vanderbilt Journal of Transnational Law

The Israel Defense Forces (the IDF) is well versed in conducting ground operations. Since its inception along with the establishment of the State of Israel in 1948, the IDF has conducted a number of ground operations, as part of conflicts both long and short, against various actors, and in different circumstances. The Independence War of 1948, the Six Day War of 1967, and the Yom Kippur War of 1973 provided experience with ground operations against organized state militaries. The large-scale maneuver in the First Lebanon War of 1982 and the more limited maneuver in the Second Lebanon War of 2006 …

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 …

Targeting Of Persons: The Contemporary Challenges, Charles J. Dunlap, Jr.

Vanderbilt Journal of Transnational Law

The targeting of persons engages the most fundamental of all the norms in the law of war: the principle of distinction. Indeed, scholar Gary Solis calls it the "most significant battlefield concept a combatant must observe."' The rule itself is simple and direct: in its study of customary international humanitarian law, the International Committee of the Red Cross (ICRC) explains, "The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians." Unlike some provisions of the law of war, the principle of distinction …

Targeting Individuals Belonging To An Armed Group, Dr. Gloria Gaggioli

Vanderbilt Journal of Transnational Law

In the context of non-international armed conflicts (NIACs), individuals belonging to an organized armed group are generally considered targetable based on their membership in such a group. There would be no need to prove that they are directly participating in hostilities in order to consider their targeting compliant with international humanitarian law (IHL). Targeting based on membership thus requires answering two key questions. First, what is an organized armed group for the purpose of IHL?; and, second, how should one determine membership in such a group? These two crucial questions raise a number of legal and practical challenges, especially with …

A Practical Perspective On Attacking Armed Groups, Brigadier General R. Patrick Huston

Vanderbilt Journal of Transnational Law

In this Article, I will describe the three questions I ask and highlight some of the practical problems that can arise when we answer each of the three questions. After that, I will move on to a discussion of how organized armed groups are treated under the LOAC, and how that treatment is--and should remain--different from how civilians are treated when they directly participate in hostilities. I consider this distinction to be the most important part of the discussion about targeting persons in today's conflicts, but I note that this key concept is sometimes misunderstood or misapplied, so it plays …

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.

Congressional Authorization Of The Campaign Against Isil, Tyler Salway

Indiana Law Journal

I. THE BIRTH OF ISIL

II. CONGRESSIONAL AUTHORIZATION

A. EXPRESS AUTHORIZATION

1. METHODS OF INCLUSION

2. ISIL’S INCLUSION UNDER THE 9/11 AUMF

B. IMPLICIT AUTHORIZATION

III. ISIL AND THE TRUMP PRESIDENCY

CONCLUSION

Targeting State And Political Leadership In Armed Conflicts, Dr. Agnieszka Jachec-Neale

Vanderbilt Journal of Transnational Law

Despite repeated attacks on various figures of authority and political leaders such as Saddam Hussein, the scholarly debates in the law of armed conflict have not given much attention to an analysis of if, and if so, when, state and political leadership may be subject to lawful attack, or the question of when physical objects associated with exercising of the official functions contributing to the prosecution of military operations can satisfy the criteria of the definition of military objectives. Whilst examining various positions of leadership, such as Prime Ministers and political party figures, it is argued that there is a …

The Aba Rule Of Law Initiative Celebrating 25 Years Of Global Initiatives, M. Margaret Mckeown

Michigan Journal of International Law

Relying on extensive reports, program documentation, and interviews with important actors in the rule of law movement, this article will explore how one key player in the international-development field—the ABA—has furthered rule of law values through its global programs. The first half of the article surveys the ABA’s involvement in rule of law initiatives. Part I explores the origins of the ABA’s work in this field, which date back to the organization’s founding and took shape after the demise of the former Soviet Union. Part II surveys the expansion of the ABA’s programs beyond Eastern Europe to other regions—a growth …

Targeting The Targeted Killings Case - International Lawmaking In Domestic Contexts, Yahli Shereshevsky

Michigan Journal of International Law

The targeting of non-state armed groups members is perhaps the most debated legal issue in the law of contemporary armed conflicts between states and non-state actors. The 2006 Targeted Killings case of the Israeli Supreme Court (ISC) is a key reference point in this debate. Recently, without much scholarly or public attention, the government of Israel, in its report on the summer 2014 conflict in Gaza (the 2014 Gaza Conflict Report), dramatically diverged from the Targeted Killings case’s definition of legitimate targets in asymmetric conflicts. The Targeted Killings case held a conduct or functional membership-based approach to targeting. This approach …

Article 36 Weapons Review & Autonomous Weapons Systems: Supporting An International Review Standard, Ryan Poitras

American University International Law Review

No abstract provided.

Limitless Discretion In The Wars On Drugs And Terror, Wadie E. Said

University of Colorado Law Review

The wars on terror and drugs have been defined, largely, by what they lack: a readily identifiable opponent, a clear end goal, a timeline, and geographical boundaries. Based on that understanding, this Article discusses the increasingly expansive discretion of American authorities to prosecute individuals where the wars on terror and drugs intersect. Through laws such as the Maritime Drug Law Enforcement Act, the ban on providing material support to foreign terrorist organizations, and the narco-terrorism statute, the United States exercises a kind of universal jurisdiction to pursue anyone, anywhere it believes its laws are being violated. Wielding the power of …

Event Horizon: Examining Military And Weaponization Issues In Space By Utilizing The Outer Space Treaty And The Law Of Armed Conflict, Ryan M. Esparza

Journal of Air Law and Commerce

This article takes the position that any lingering ambiguities surrounding the militarization and weaponization of outer space should be analyzed via the joint scope of the Outer Space Treaty and the Law of Armed Conflict. This article pulls key provisions from Additional Protocol I to the Geneva Conventions because of Additional Protocol I’s application in international conflicts and affirmation of the four Geneva Conventions. After an examination of key Additional Protocol I provisions and their application to space, this article conducts a joint analysis of the Outer Space Treaty and the Law of Armed Conflict. This joint analysis examines three …