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Full-Text Articles in Law
Reconsidering Reprisals, Michael A. Newton
Reconsidering Reprisals, Michael A. Newton
Vanderbilt Law School Faculty Publications
The prohibition on the use of reprisals is widely regarded as one of the most sacrosanct statements of the jus in bello applicable to the conduct of modern hostilities. The textual formulations are stark and subject to no derogations. Supporters of the bright line ban describe it as a vital bulwark against barbarity. In the words of the International Committee of the Red Cross, the prohibition is absolute, despite the fact that the declarations of key states indicate residual ambiguity over the scope of permissible reprisals, particularly in the context of non-international armed conflicts. Reprisals are a recurring feature of …
Illustrating Illegitimate Lawfare, Michael A. Newton
Illustrating Illegitimate Lawfare, Michael A. Newton
Vanderbilt Law School Faculty Publications
Lawfare that erodes the good faith application of the laws and customs of warfare is illegitimate and untenable. This essay outlines the contours of such illegitimate lawfare and provides current examples to guide practitioners. Clearly addressing the terminological imprecision in current understandings of lawfare, this essay is intended to help prevent further erosion of the corpus of jus in bello. Words matter, particularly when they are charged with legal significance and purport to convey legal rights and obligations. When purported legal “developments” actually undermine respect for the application and enforcement of humanitarian law, they are illegitimate. Although the laws and …
Some Observations On The Future Of U.S. Military Commissions, Michael A. Newton
Some Observations On The Future Of U.S. Military Commissions, Michael A. Newton
Vanderbilt Law School Faculty Publications
The Obama Administration confronts many of the same practical and legal complexities that interagency experts debated in the fall of 2001. Military commissions remain a valid, if unwieldy, tool to be used at the discretion of a Commander-in-Chief. Refinement of the commission procedures has consumed thousands of legal hours within the Department of Defense, as well as a significant share of the Supreme Court docket. In practice, the military commissions have not been the charade of justice created by an overpowerful and unaccountable chief executive that critics predicted. In light of the permissive structure of U.S. statutes and the framework …
Modern Military Necessity: The Role & Relevance Of Military Lawyers, Michael A. Newton
Modern Military Necessity: The Role & Relevance Of Military Lawyers, Michael A. Newton
Vanderbilt Law School Faculty Publications
Modern warfare presents an array of legalistic overtones that require the presence and participation of attorneys of exceptional courage and breadth of expertise in demanding and austere conditions. Military lawyers today must confront complex missions and competing operational demands in representing the needs of operational commanders. The legal dimension of conflict has at times overshadowed the armed struggle between adversaries as the nature of conflict itself has changed. The overall mission will often be intertwined with political, legal, and strategic imperatives that cannot accomplished in a legal vacuum or by undermining the threads of legality that bind diverse aspects of …
The Iraqi Special Tribunal: A Human Rights Perspective, Michael A. Newton
The Iraqi Special Tribunal: A Human Rights Perspective, Michael A. Newton
Vanderbilt Law School Faculty Publications
The creation of the Iraqi Special Tribunal in December 2003 by Iraqi authorities who were at the time under the legal occupation of the Coalition Provisional Authority marked the emergence of a new form of internationalized domestic tribunals. The Iraqis succeeded in incorporating the full range of modern crimes into their domestic codes alongside some carefully selected domestic offenses, while amending domestic procedural law in some key ways to align the process with established international law related to the provision of full and fair trials. The subsequent investigations and the beginning of trial proceedings generated major debates about the legitimacy …