Military, War, and Peace Commons^™

The Rules Against Scandal And What They Mean For The First Amendment’S Religion Clauses, Marci A. Hamilton

Articles

No abstract provided.

Private Military Companies & International Law: Building New Ladders Of Legal Accountability & Responsibility, Jackson Nyamuya Maogoto, Benedict Sheehy

Cardozo Journal of Conflict Resolution

The Private Military Company ("PMC") is a relatively new and growing phenomenon. An urgent and ongoing problem facing courts and policy makers is the accountability of PMCs. This article proposes new approaches to developing accountability by examining the potential of two well-established doctrines: command responsibility and state responsibility.

An Unnecessary Convenience: The Assertion Of The Uniform Code Of Military Justice ("Ucmj") Over Civilians And The Implications Of International Human Rights Law, Dan E. Stigall

Cardozo Journal of International and Comparative Law

The expansion of the Uniform Code of Military Justice (UCMJ) to include jurisdiction over civilians during contingency operations raises significant legal and human rights concerns, particularly regarding due process and equality under the International Covenant on Civil and Political Rights (ICCPR). While the UCMJ aims to maintain military order, its application to civilians may not meet the ICCPR's requirements for necessity and fairness, potentially undermining the U.S.'s international reputation. However, proponents argue that military jurisdiction can sometimes advance human rights and accountability, suggesting a need for balanced solutions.

The Constitutionality Of Court-Martialing Civilian Contractors In Iraq, Margaret Prystowsky

Cardozo Public Law, Policy & Ethics Journal

The article examines the legal implications of outsourcing military functions to private contractors, focusing on the accountability gap under the Uniform Code of Military Justice (UCMJ). It argues that recent amendments to the UCMJ, particularly the expansion of court-martial jurisdiction over civilian contractors during declared wars and contingency operations, address this gap. The analysis concludes that these changes are constitutionally sound, given Congress's authority under Article I, Section 8, and align with legal precedent. However, the article also highlights practical challenges, such as prosecutorial discretion and limited penalties, which may undermine the effectiveness of these reforms.

Punishing Aggressors In U.S. Courts: Will The Act Of State Doctrine Bar National Prosecution Of The Crime Of Aggression?, Gergana Halpern

Cardozo Public Law, Policy & Ethics Journal

The note examines the intersection of the Act of State Doctrine and the prosecution of the crime of aggression in U.S. courts, arguing that while the doctrine does not legally preclude such prosecutions, practical considerations such as political sensitivity and the need for international legitimacy suggest that U.S. courts should await international consensus before proceeding. The analysis highlights the complexities of balancing legal principles with diplomatic realities.

Are We Fighting The Right War?, Alyssa Greenspan

Cardozo Journal of International and Comparative Law

No abstract provided.

Reporting Sexual Assault Of Women In The Military, Jodie Friedman

Cardozo Journal of Equal Rights & Social Justice

The note examines the underreporting of sexual assaults in the military and the impact of policy changes aimed at addressing this issue. It highlights the challenges faced by victims, including fears of retaliation and the lack of confidentiality, and evaluates the effectiveness of the 2005 restricted reporting policy. The analysis suggests that while progress has been made, systemic issues persist, and further reforms are needed to protect victims' rights and ensure justice.

Can The Iraqi Special Tribunal Further Reconciliation In Iraq?, Anna Triponel

Cardozo Journal of International and Comparative Law

This article aims to answer the question of whether the Iraqi Special Tribunal has the potential to reconcile the Iraqi community with its past, and if so, whether this potential has been fulfilled.

The first section looks at lessons learned from previous international criminal tribunals to assess their potential to reconcile a community with its past. In theory, international criminal law has the opportunity to impact diverse goals crucial for the reconciliation process, namely installing a sense of justice in victims, playing a deterrent effect on wrongdoers, providing a statement of the facts, acknowledging officially what happened, and providing an …

The Practicability Of Amnesty As A Non-Prosecutory Alternative In Post-Conflict Uganda, Kathleen Ellen Macmillan

Cardozo Public Law, Policy & Ethics Journal

The note argues that amnesty can be a necessary and effective tool for achieving peace in conflict-ridden regions, even when the International Criminal Court (ICC) is involved. It focuses on Uganda's situation, where the government's amnesty offer to the Lords Resistance Army (LRA) was crucial for a ceasefire. The analysis suggests that the ICC should consider deferring to national processes, such as Uganda's Amnesty Act of 2000, to support transitional justice and reconciliation, rather than prioritizing prosecution. The note concludes that amnesty, integrated with traditional justice mechanisms, can be both legally permissible and morally justifiable in certain contexts.

Strategic Planning For Combating Terrorism: A Critical Examination, Arsalan M. Suleman

Cardozo Public Law, Policy & Ethics Journal

The article critiques the U.S. National Strategy for Combating Terrorism and the National Military Strategic Plan for the War on Terrorism, arguing that while they emphasize the ideological dimensions of terrorism, they fail to adequately address the political grievances and root causes that fuel extremist movements. It posits that a comprehensive counterterrorism strategy must integrate military, political, and social measures to effectively combat transnational terrorism.

The War On Speech In The War On Terror: An Examination Of The Espionage Act Applied To Modern First Amendment Doctrine, Emily Posner

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Habeas Corpus, Judicial Review, And Limits On Secrecy In Detentions At Guantanamo, Jonathan Hafetz

Cardozo Public Law, Policy & Ethics Journal

The article examines the role of secrecy in post-9/11 counterterrorism detentions, particularly at Guantanamo Bay, and the legal challenges posed by the Detainee Treatment Act (DTA) and Military Commissions Act (MCA). These acts sought to limit habeas corpus jurisdiction, potentially restoring a system of unaccountable detentions. The analysis highlights how habeas corpus serves as a critical check on executive power, ensuring judicial review of detentions and transfers, and protecting against unlawful confinement. The Supreme Court's rulings in Rasul v. Bush and Hamdan v. Rumsfeld are central to this discussion, as they affirmed habeas protections and invalidated certain detention practices.

Panel Report: National Security Secrecy In The Courts: A Comparative Perspective From Israel And Ireland, Peter Raven-Hansen

Cardozo Public Law, Policy & Ethics Journal

The article examines how democratic nations, including Israel, Ireland, and the United States, balance national security secrecy with the rule of law in terrorism prosecutions. It highlights the challenges of using secret evidence in criminal trials while maintaining fair procedures, comparing the legal frameworks and practices of these countries. The analysis reveals common issues, such as the tension between protecting sensitive information and ensuring defendants' rights, and underscores the need for transparency and procedural integrity in terrorism cases.

Panel Report: Beyond Article Iii Courts: Military Tribunals, Status Review Tribunals, And Immigration Courts, Robert M. Chesney

Cardozo Public Law, Policy & Ethics Journal

The article explores the tension between national security interests and procedural fairness in the use of secret evidence across non-Article III contexts, including military tribunals, Combatant Status Review Tribunals (CSRTs), and immigration courts. It examines the challenges of balancing government secrecy with individual rights, emphasizing the need for procedural safeguards to navigate this complex issue.

The War On Terrorism In The Courts, Gerald E. Rosen

Cardozo Public Law, Policy & Ethics Journal

The article addresses the challenges posed by the war on terrorism to judicial independence and the protection of civil liberties. It argues that while the Executive and Legislative branches must act to safeguard national security, the Judiciary has a critical role in ensuring that constitutional rights and procedural safeguards are not eroded. The author emphasizes that courts must balance the need to defer to national security concerns with the obligation to protect fundamental rights, such as access to courts, right to counsel, and confrontation rights, even in terrorism cases.

Green Berets, Blue Berets... White Berets?: How & When Republics Participate In Humanitarian Military Intervention, Paul W. Kaufman

Cardozo Journal of International and Comparative Law

No abstract provided.

United States' Moral Authority Undermined: The Foreign Affairs Costs Of Abusive Detentions, Jeffrey K. Cassin

Cardozo Public Law, Policy & Ethics Journal

The note argues that the United States' engagement in abusive detentions, notably at Guantanamo Bay and in cases like *Hamdi v. Rumsfeld* and Padilla, has severely eroded its moral authority on the global stage. These practices, including indefinite detentions and the denial of due process, contradict U.S. rhetoric on human rights, undermining its credibility and strategic influence. The Supreme Court's rulings in Rasul v. Bush and Hamdi v. Rumsfeld emphasize the necessity of judicial review, yet the U.S. continues to face criticism for hypocrisy, diminishing its ability to promote democracy and human rights internationally.

Article 9 Of The Japanese Constitution And The Rule Of Law, Kenneth L. Port

Cardozo Journal of International and Comparative Law

The article argues that Article 9 of the Japanese Constitution was originally intended to prevent Japan from maintaining any military forces, whether for offensive or defensive purposes. Despite this, Japan now has the fourth-largest military in the world, creating a contradiction between the Constitution's intent and current reality. The article contends that the Self-Defense Forces (SDF) are unconstitutional and proposes converting them into a disaster relief organization to align with the original pacifist vision of Article 9.

From A Pakistani Stationhouse To The Federal Courthouse: A Confession's Uncertain Journey In The U.S.-Led War On Terror, Jonathan F. Lenzner

Cardozo Journal of International and Comparative Law

The global fight against terrorism has led to unprecedented international cooperation, particularly between the U.S. and both traditional and non-traditional allies, highlighting the tension between gathering intelligence to prevent attacks and preserving evidence for prosecution. This collaboration, while crucial, faces legal challenges, including the admissibility of evidence obtained through foreign interrogations and human rights concerns regarding interrogation practices. The effectiveness of civilian courts in handling terrorism cases is questioned, suggesting potential alternatives like military commissions.

"When A Nation Is At War": A Context-Dependent Theory Of Free Speech For The Regulation Of Weapon Recipes, Liezl Irene Pangilinan

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Sexual Assault Crisis In The United States Air Force Academy, Colleen Dalton

Cardozo Journal of Equal Rights & Social Justice

The note examines the systemic crisis of sexual assault at the United States Air Force Academy, highlighting how military culture, legal frameworks, and institutional failures perpetuate this issue. It argues that comprehensive legal and cultural reforms are necessary to address the pervasive gender discrimination and retaliation against victims. The analysis emphasizes the need for Congress to modernize the Uniform Code of Military Justice and for the military to adopt a model that promotes gender equality and accountability.

Shock And Awe: Does The First Amendment Protect A Media Right Of Access To Military Operations?, Karen C. Sinai

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Constitution In Crisis Times, Jack N. Rakove

Cardozo Public Law, Policy & Ethics Journal

The article examines the challenges the U.S. Constitution faces during crises, particularly in the context of the post-9/11 "War on Terror." It argues that terrorism represents a persistent condition rather than a traditional war, requiring a balanced approach to security and civil liberties. The author emphasizes the importance of constitutional checks on executive power and the role of Congress in ensuring civil liberties are protected during crises.

Use Of Force Against Terrorism After September 11th: State Responsibility, Self-Defense And Other Responses, Davis Brown

Cardozo Journal of International and Comparative Law

The article examines the legality of the U.S. response to the 9/11 attacks under international law, arguing that the use of force against Al-Qa'ida and the Taliban was lawful. It asserts that states can be held responsible for terrorist acts if they provide support or fail to prevent them, and it critiques the doctrine of defensive armed reprisals while advocating for the use of counter-measures as a legal framework to address terrorism. The analysis emphasizes the importance of proportionality and adherence to international legal standards in responding to such attacks.

The Application Of The Foreign Sovereign Immunities Act To An Action Against The French Railroad For Transporting Thousands Of Jews And Others To Their Deaths: Abrams V. Sncf, Malvina Halberstam

Articles

No abstract provided.

War Stories, Jessica Litman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Early Patent Publication: A Boon Or Bane? A Discussion On The Legal And Economic Effects Of Publishing Patent Applications After 18 Months Of Filing, John F. Duffy, Hayden Gregory, Robert Rines, Herbert Wamsley, Douglas Wyatt

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Spontaneous Order Of War Powers, John O. Mcginnis

Articles

No abstract provided.

The Right To Self-Defense Once The Security Council Takes Action, Malvina Halberstam

Articles

No abstract provided.

Legality Of Secessions: The Case Of Eritrea, Minasse Haile

Articles

The article critically examines the legal basis for Eritrea's secession from Ethiopia in 1993, arguing that the secession lacks a solid foundation under international law. It contends that Eritrea's independence does not meet the criteria for self-determination as defined by international instruments, emphasizing that the process was flawed and did not genuinely reflect the will of the Eritrean people. The analysis highlights the international community's opposition to secession to preserve territorial integrity and stability, asserting that Eritrea's secession undermines peace and security in the Horn of Africa.