Law Commons^™

Hamdan Confronts The Military Commissions Act Of 2006, George P. Fletcher

Faculty Scholarship

In 2006 the law of war experienced two major shock waves. The first was the decision of the Supreme Court in Hamdan, which represented the first major defeat of the President's plan, based on an executive order of November 2001, to use military tribunals against suspected international terrorists. The majority of the Court held the procedures used in the military tribunal against Hamdan violated common article three of the Geneva Conventions. A plurality offour, with the opinion written by Justice Stevens, based their decision as well on afar-reaching interpretation of the substantive law of war. They held that conspiracy …

Prologue To A Voluntarist War Convention, Robert D. Sloane

Faculty Scholarship

This Article attempts to identify and clarify what is genuinely new about the ¿new paradigm¿ of armed conflict after the attacks of September 11, 2001. Assuming that sound policy counsels treating certain aspects of the global struggle against modern transnational terrorist networks within the legal rubric of war, this Article stresses that the principal challenge such networks pose is that they require international humanitarian law, somewhat incongruously, to graft conventions - in both the formal and informal senses of that word - onto an unconventional form of organized violence. Furthermore, this process occurs in a context in which one diffuse …

Military Justice At Abu Ghraib, Jeffrey F. Addicott

Faculty Articles

Previous efforts to denigrate the credibility of U.S. war policies in the War on Terror pale in the wake of the prisoner abuse scandal at Abu Ghraib. Photographic evidence of American soldiers abusing detainees created a firestorm of allegations concerning illegal interrogation practices and threatened to derail fundamental legal and policy pillars upon which America conducts the War on Terror. It raised the question of whether the prison abuse reflected a systemic policy to illegally obtain information from detainees or isolated acts of criminal behavior by a handful of soldiers. Thanks to several investigative reports, the legal and policy pillars …

From Rethinking To Internationalizing Criminal Law, George P. Fletcher

Faculty Scholarship

Writing Rethinking Criminal Law ("Rethinking") was a gamble. No one had ever written a serious book on comparative criminal law – in English or in any other language. No one had ever addressed English-speaking readers with the argument that some other system of legal thought – espoused by a nation defeated in a major war just thirty years before – had a superior literature on criminal law and a more refined way of thinking about the structure of criminal offenses. No one had tried to present the system of criminal law as though it were a species of …

Is There A New World Court?, Douglass Cassel

Journal Articles

I am pleased to introduce our conference on Human Rights and the Law of War: New Roles for the World Court? Why this conference? And why now? Our conference is prompted by two contrasting phenomena: The caseload of the ICJ seems to have been transformed in the post-Cold War period. The World Court is now busier than ever. It has more cases, increasingly involving questions of human rights or ongoing armed conflict. Yet these three inter-related phenomena—increased caseload, and more cases involving human rights or armed conflict—have been little analyzed or studied. Our purpose is to contribute to public and …

The War On Terrorism And Civil Liberties, Jules Lobel

Articles

Throughout American history, we have grappled with the problem of balancing liberty versus security in times of war or national emergency. Our history is littered with sordid examples of the Constitution's silence during war or perceived national emergency. The Bush Administration’s War on Terror has once again forced a reckoning requiring Americans to balance liberty and national security in wartime. President Bush has stated, "[w]e believe in democracy and rule of law and the Constitution. But we're under attack.” President Bush, Attorney General Ashcroft and other governmental leaders have argued that in war, "the Constitution does not give foreign enemies …

On Justice And War: Contradictions In The Proposed Military Tribunals, George P. Fletcher

Faculty Scholarship

The autumn of our anguish has passed, and we are still confused about how to describe the use of military force in Afghanistan. We are torn between using the language of justice and the language of war. Is this an attack by private individuals, a case of a single terrorist writ large? If the mass killings of September 11 are the crimes of individuals – Islamic fundamentalist versions of Timothy McVeigh – then we can think about arresting them and bringing them to "justice." The mantra of the Bush team, "bringing justice to them and them to justice," has seeped …

"Artillery Lends Dignity To What Otherwise Would Be A Common Brawl": An Essay On Post-Modern Warfare And The Classification Of Captured Adversaries, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

This essay allows the writer to enter a fluid fray being played out almost day-by-day in the media and, of course, where it counts: in the administration of President George W. Bush. Conscious of the ebbs and drifts of both the current debates and desperately anxious not to be preempted by the march of a swiftly moving time frame, this essay suggests an approach to U.S. integration of generally accepted rules for the treatment of POWs that will advance both the war on terrorism and America's need to embrace the reality of the globalization of humanistic mores and notions about …

The Legality And Constitutionality Of The President's Authority To Initiate An Invasion Of Iraq, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Building Democracies With Southern Command’S Legal Engagement Strategy, Jeffrey F. Addicott, Guy B. Roberts

Faculty Articles

Fostering democracies and encouraging military establishments, which are subject to the rule of law, is vital to United States national security interests. In this regard, the American warfighting unified commands mirror the overall U.S. national security policy of peacetime engagement, not only by maintaining close contacts with friendly governments for the purpose of imparting democratic ideals and principles, but by focusing this commitment to support new democracies through detailed engagement plans.

U.S. Southern Command’s engagement plan for Latin America creates a “community of democratic, stable, and prosperous” nations. This plan also provides a blueprint for democracy-building in the context of …

Siegecraft And Surrender: The Law And Strategy Of Cities And Targets, Matthew C. Waxman

Faculty Scholarship

The razing of Jericho; the sack of Magdeburg; the siege of Leningrad; the fire-bombing of Dresden. Ever since civilizations began organizing permanent economic settlements, cities and towns have occupied a central role in warfare and in our images of war." On almost every page of historical writings," remarked Grotius, "you may find accounts of the destruction of whole cities, or the leveling of walls to the ground, the devastation of fields, and conflagrations." A driving force behind the evolution and development of cities has been defense and security. As a result, how-ever, cities have become a primary target or object …

Discrimination In The Laws Of Information Warfare, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Legal Training Handbook For The Ukrainian Military, Jeffrey F. Addicott

Faculty Articles

In May of 1995, a democracy building project between The Judge Advocate General of Ukraine and United States Army lawyers was completed in Kiev. Over the course of this eight-month project, from September 1994 to May 1995, United States Army judge advocates from the International and Operational Law Division, Office of The Judge Advocate General, worked directly with Colonel Alexander Bokov, Chief, Legal Service of the Ministry of Defense of Ukraine, in developing a legal training handbook for Ukrainian soldiers.

The handbook, entitled “Code of Conduct for Participants in Military Operations,” now serves as the primary training guide for instructing …

The Twenty-Fifth Anniversary Of My Lai: A Time To Inculcate The Lessons, Jeffrey F. Addicott, William A. Hudson Jr

Faculty Articles

The spring of 1993 marks the twenty-fifth anniversary of the My Lai massacre and is an appropriate time to reinforce the lessons learned from the event. Each and every grave breach of the law of war represents a horrible scar on the credibility of the American military, as well as the civilized democracy it protects. In this context, My Lai stands as the greatest emblem of American military shame in the twentieth century. Nothing provides a greater vehicle for inculcating the necessity for strict adherence to the law of war than the lessons from the massacre at My Lai.

While …

Operation Desert Storm, R. E. Lee Or W. T. Sherman?, Jeffrey F. Addicott

Faculty Articles

History has shown that one of the most important elements in a successful combat operation is the quality of the commander. The success of Operation Desert Storm confirmed that American commander, General Norman Schwarzkopf, was no mediocre leader. By extension, the war also paid tribute, albeit a silent one, to a man who is arguably the greatest military leader the United States has ever produced—Robert E. Lee. Not only in the sphere of battlefield tactics, but also in ensuring strict adherence to the laws regulating warfare, Generals Lee and Schwarzkopf had much in common.

Unfortunately, however, many are unaware of …

The Lessons Of My Lai, Jeffrey F. Addicott

Faculty Articles

The spring of 1993 marks the twenty-fifth anniversary of the My Lai Massacre. As such, it is an appropriate time to seriously revisit the event and to reinforce the lessons learned. The antithesis of the conduct of the United States Military in the Gulf War, My Lai echoes back to a nightmarish event that most Americans would like to forget. But My Lai must never be forgotten.

To a large degree, from Grenada (1983) to Panama (1989) to the Gulf War (1991), the United States Military can take full credit for a commendable record in its adherence to the law …

Book Review. The Outlawry Of War By C. C. Morrison, Fowler V. Harper

Articles by Maurer Faculty

No abstract provided.

Outlawry Of War, Fowler V. Harper

Articles by Maurer Faculty

No abstract provided.