Military, War, and Peace Commons^™

Game Of Drones, Mary Ellen O'Connell

Journal Articles

Reviewing three 2015 treatises on Drone War

A Theory of the Drone. By Grègoire Chamayou. Translated by Janet Lloyd. New York, London: The New Press, 2015. Pp. 292. Index. $26.95.

International Law and Drone Strikes in Pakistan: The Legal and Socio-political Aspects. By Sikander Ahmed Shah. London, New York: Routledge, 2015. Pp. viii, 247. Index. $145.

Sudden Justice: America's Secret Drone Wars. By Chris Woods. Oxford, New York: Oxford University Press, 2015. Pp. xvi, 386. Index. $27.95.

Lawful Command Emphasis: Talk Offense, Not Offender; Talk Process, Not Results, Frank Rosenblatt, James F. Garrett, Mark Maxwell, Matthew Calarco

Journal Articles

Unlawful command influence (UCI) has rightfully been called the mortal enemy of military justice. This concern stems back to the injustices that occurred during both World War I and II. The reaction to these events was a law—the Uniform Code of Military Justice (UCMJ)—in 1950. A provision within the UCMJ provides that it is improper and unlawful for any person to attempt to influence the action of an appointing or reviewing authority or the action of any court-martial in reaching its verdict or pronouncing sentence. In modern practice, the most common but nebulous type of UCI is the appearance of …

Sex Crimes Litigation As Hazardous Duty: Practical Tools For Trauma-Exposed Prosecutors, Defense Counsel, And Paralegals, Evan R. Seamone

Journal Articles

Military prosecutors and defense attorneys must both interact with traumatic case material stemming from victims, offenders, or evidence tied to a sexual offense. The context of the attorney's specific duties makes them susceptible to different types of indirect or "Secondary Traumatic Stress" [STS] stemming from the litigation. At base, STS generically describes the manner in which a person can be traumatized simply from hearing or being exposed to someone else's trauma or implementations that caused it.

The Military's Workplace Flexibility Framework, Marcy L. Karin, Katie Onachila

Journal Articles

Workplace flexibility is a tool the military may use to support its operations, improve the recruitment and retention of military personnel, and fulfill its obligation to support veterans and military families. The return of combat troops from Iraq provides a valuable catalyst to take stock of the use of workplace flexibility in the U.S. military and employers supporting the military community. While the unique critical needs of the military are an inescapable variable when creating laws and policies, the military must meet the workplace flexibility needs of its services members and their families to maximize the effectiveness and efficiency of …

Dismantling America’S Largest Sleeper Cell: The Imperative To Treat, Rather Than Merely Punish, Active Duty Offenders With Ptsd Prior To Discharge From The Armed Forces, Evan R. Seamone

Journal Articles

By separating combat veterans with uniquely military discharges that make many ineligible for effective PTSD treatment, the active duty armed forces are creating a class of future offenders, specially trained to be lethal, whose violent acts against themselves, their families, and the public collectively amass more casualties, incur more costs, and drain more resources in the homeland than the underlying traumatic episode in the war zone. The obligation to treat these offenders and help them successfully transition to civilian society with preserved VA benefits before discharge is not merely a laudatory goal of therapeutic jurisprudence, but a mandate under the …

Beyond War: Bin Laden, Escobar, And The Justification Of Targeted Killing, Luis E. Chiesa, Alexander K.A. Greenawalt

Journal Articles

Using the May 2011 killing of Osama bin Laden as a case study, this Article contributes to the debate on targeted killing in two distinct ways, each of which has the result of downplaying the centrality of international humanitarian law (IHL) as the decisive source of justification for targeted killings.

First, we argue that the IHL rules governing the killing of combatants in wartime should be understood to apply more strictly in cases involving the targeting of single individuals, particularly when the targeting occurs against nonparadigmatic combatants outside the traditional battlefield. As applied to the bin Laden killing, we argue …

Cyber Security Without Cyber War, Mary Ellen O'Connell

Journal Articles

Which government agency should have primary responsibility for the Internet? The USA seems to have decided this question in favour of the military—the US military today has the largest concentration of expertise and legal authority with respect to cyberspace. Those in the legal community who support this development are divided as to the appropriate legal rules to guide the military in its oversight of the Internet. Specialists on the international law on the use of force argue that with analogy and interpretation, current international law can be applied in a way that allows great freedom without sending the message that …

Non-Deployable: The Court-Martial System In Combat From 2001 To 2009, Frank Rosenblatt

Journal Articles

There have been no empirical studies examining how well the court-martial system has actually performed in America's recent conflicts. This Article attempts such a study, and the findings largely contradict the conventional wisdom. After-action reports from deployed judge advocates show a nearly unanimous recognition that the full-bore application of military justice was impossible in the combat zone. In practice, deployed commanders and judge advocates exercised all possible alternatives to avoid the crushing burdens of conducting courts-martial, such as sending misconduct back to the home station, granting leniency, and a more frequent use of administrative discharge procedures. By any measure - …

Seductive Drones: Learning From A Decade Of Lethal Operations, Mary Ellen O'Connell

Journal Articles

The world’s fleets of unmanned combat vehicles (UCVs) are growing exponentially. This contribution aims to raise awareness that the very existence of UCV technology may well be lowering the inhibitions to kill. At least two sets of data indicate a problem: First, we have evidence from psychological studies that killing at a distance using unmanned launch vehicles may lower the inhibition to kill on the part of operators. Second, we have a decade of evidence of US presidents deploying military force where such force was unlikely to be used prior to the development of UCVs. This evidence indicates that the …

Wired For War: The Robotics Revolution And Conflict In The Twenty-First Century, Frank Rosenblatt

Journal Articles

Pity the librarian who receives a copy of P.W. Singer's Wired for War and must decide where to put it. Since the book wrestles with the changing nature of warfare, it could fit in with other books on war and military affairs. It may also belong in the science fiction section, since it is largely a tribute to the vision of science fiction writers such as Isaac Asimov. Perhaps Wired for War should go alongside works by other futurist thinkers such as George Orwell and Freeman Dyson. Is it really an ethics book? A science text? Strong arguments could be …

The Choice Of Law Against Terrorism, Mary Ellen O'Connell

Journal Articles

The Obama administration has continued to apply the wartime paradigm first developed by the Bush administration after 9/11 to respond to terrorism. In cases of trials before military commissions, indefinite detention, and targeted killing, the U.S. has continued to claim wartime privileges even with respect to persons and situations far from any battlefield. This article argues that both administrations have made a basic error in the choice of law. Wartime privileges may be claimed when armed conflict conditions prevail as defined by international law. These privileges are not triggered by declarations or policy preferences.

Responsibility To Peace: A Critique Of R2p, Mary Ellen O'Connell

Journal Articles

The NATO bombing of Yugoslavia in 1999 led to the doctrine of R2P, which envisages the use of force in defence of human rights. But as the Kosovo conflict demonstrates, nothing is more destructive of human rights than war. The protection and promotion of human rights should be done through lawful and non-lethal means. This essay argues that citizens and states have a responsibility to peace as much as to human rights because human rights can only flourish in a condition of peace. This essay seeks to restore peace to its proper place in the discussion of international politics and …

Time Off For Military Families: An Emerging Case Study In A Time Of War...And The Tipping Point For Future Laws Supporting Work-Life Balance?, Marcy L. Karin

Journal Articles

No abstract provided.

Combatants And The Combat Zone, Mary Ellen O'Connell

Journal Articles

This short essay discusses that definition as it emerged following September 11, 2001. The essay compares the Administration's definition with the definition of combatant found in international law. This essay will not discuss in any detail the additional-and even more questionable-claim by the Administration that certain persons designated "enemy combatants" enjoy neither U.S. nor international human rights or IHL rights or protections.8 Suffice it to say that no human being can be denied his or her fundamental rights-there are no legal black holes.

Outsourcing Sacrifice: The Labor Of Private Military Contractors, Mateo Taussig-Rubbo

Journal Articles

Numerous scandals arising from the United States government’s increased use of armed private military contractors have drawn attention to the contractors’ legally ill-defined position. But the complexity of the contractors’ relation to various bodies of law and doctrine — including military law, international law, state tort law, employment law, and sovereign immunity — is not the only salient issue. The contractors are also awkwardly positioned in relation to the traditional understanding of sacrifice, which has structured Americans’ imaginings about those who kill and are killed on behalf of the nation. This Article examines the contractors’ relation to the tradition of …

Honduras: Coup D’Etat In Constitutional Clothing?, Douglass Cassel

Journal Articles

Legal confusion has clouded the recent de facto change of government in Honduras. Some of this arises from the passionate political debate over President Manuel Zelaya and his de facto removal. Without entering that debate, this analysis addresses only questions of international law and related questions of law.

Despite the condemnation of the coup d’état by the United Nations, the Inter-American Commission on Human Rights, and the OAS, and by many governments including the United States, and despite suspension of Honduras from receipt of U.S. and European aid, and from participation in the OAS, diplomatic efforts to return President Zelaya …

Duress, Demanding Heroism And Proportionality, Luis E. Chiesa

Journal Articles

No abstract provided.

Preserving The Peace: The Continuing Ban On War Between States, Mary Ellen O'Connell

Journal Articles

The history of international law is, in large part, about the development of restraints on states' right to resort to force in dealing with external conflicts. Today, states may use force only in self-defense to an armed attack or with Security Council authorization. Even in these cases, states may use force only as a last resort, and then only if doing so will not disproportionately harm civilians, their property, or the natural environment. These rules restricting force are found in treaties (especially the United Nations Charter), customary international law, and the general principles of international law. In other words, the …

Defending Human Rights In The "War" Against Terror, Douglass Cassel

Journal Articles

Safeguarding human rights in our "war" against terrorism is both the right and the smart thing to do. It is right because human rights embody our fundamental values as Americans and as Christians. Our Constitution stands for freedom; our Creator teaches us to respect the God-given dignity of each human soul. Christians are called to cherish human dignity, not only of innocents, and not only of captives in war whose status as combatant or civilian may be uncertain, but also of cardinal sinners, the terrorists themselves. Christ Jesus teaches us to hate the sin, but somehow to bring ourselves to …

Washington's "War Against Terrorism" And Human Rights: The View From Abroad, Douglass Cassel

Journal Articles

"When it comes to human rights, there is no greater leader than the United States of America," White House spokesman Scott McClellan has said.

The view from abroad is less kind. A recent resolution of the European Parliament, for example, "condemns" our government's treatment of prisoners at Guantanamo. It urges Washington to guarantee all prisoners "minimum human rights in accordance with international human rights law and fair trial procedures" and to "immediately clarify the situation of the prisoners." European objections run so deep that a New York Times account finds a "high level of anger in Europe at reports that …

Book Review, Mary Ellen O'Connell

Journal Articles

Reviewing, Necessity, Proportionality and the Use of Force by States. By Judith Gardam. Cambridge, New York: Cambridge University Press, 2004.

The End Of Legitimacy, Mary Ellen O'Connell

Journal Articles

IRAQ: ONE YEAR LATER

INTRODUCTORY REMARKS by Mary Ellen O'Connell, 261

THE USE OF FORCE IN IRAQ: ILLEGAL AND ILLEGITIMATE by Anne-Marie Slaughter, 262-63

THE IRAQ WAR AND THE FUTURE OF INTERNATIONAL LAW by Richard Falk, 263-66

THE ROLE OF INTERNATIONAL LAW AND THE UN AFTER IRAQ by Thomas M Franck, 266-69

THE END OF LEGITIMACY by Mary Ellen O'Connell, 269-70

THE PROBLEMS OF LEGITIMACY-SPEAK by James Crawford, 271-73

The Legal Case Against The Global War On Terror, Mary Ellen O'Connell

Journal Articles

In the first confusing days after the September 11, 2001, attacks on the United States, President George W. Bush declared a war on terror. Many of us heard this declaration as stirring rhetoric to rally the nation. We understood it as a declaration that the President would direct a strong response against those responsible. We had heard this sort of rhetoric before when the nation faced powerful challenges-from illegal drugs and chronic poverty. Many of us understood President Bush's declaration of war to refer once again to the determined, persistent struggle to overcome a social blight-this time terrorism. We did …

To Kill Or Capture Suspects In The Global War On Terror, Mary Ellen O'Connell

Journal Articles

Presents a speech by law professor Mary Ellen O'Connell, delivered at the Case Western Reserve School of Law's War Crimes Research Symposium, February 28, 2003. Legal implications of pursuing terror suspects using military action by the U.S. government; Components of armed conflict; Analysis of the United States' involvement in the internal armed conflict in the Philippines.

Re-Leashing The Dogs Of War, Mary Ellen O'Connell

Journal Articles

Book review of International Law and the Use of Force. By Christine Gray. New York: Oxford University Press, 2000.

The Claims Resolution Tribunal And Holocaust Claims Against Swiss Banks, Roger P. Alford

Journal Articles

This article discusses the legal challenges for implementing settlements for Holocaust reparation claims to Swiss bank accounts. It specifically discusses the activities related to the settlement of these claims undertaken by the Independent Committtee of Eminent Persons (Volcker Commission). The article's first section presents historical information about Holocaust claims against Swiss banks. Specifically, it attempts to answer the question of why it has taken so long for Holocaust reparation claims against Swiss banks to be processed. The author blames this delay primarily on the obfuscation by the Swiss banks and the inattention of the Swiss government[,] which is indicated by …

Lawful Self-Defense To Terrorism, Mary Ellen O'Connell

Journal Articles

On October 7,2001, the United States and the United Kingdom launched operation Enduring Freedom. Enduring Freedom was a massive aerial and land operation on the territory of Afghanistan in response to the September 11 terror attacks on the United States. The two governments justified Enduring Freedom as an exercise of lawful self-defense. This article examines the elements of self-defense, applying them to Enduring Freedom. At the outset, Enduring Freedom did indeed meet the conditions of lawful self-defense, but later stages of the operation may have gone beyond the bounds of proportionality. The article also looks at the alternatives to self-defense …

On War As Hell, Roger P. Alford

Journal Articles

This article addresses the question of the proper international standard for war reparations. War reparations are especially hard on the credibility and efficacy of international law. Wars are hard because the suffering is so great and reparations so onerous that often there is no mutuality of interest between the victorious governments and their own constituent victims. Wars force victorious States to make hard choices between looking backward to repair the harm caused to constituent victims and looking forward to a relationship with a potential strong and strategic ally. Just as the conduct of war, in its great features, is...policy itself, …

Evidence Of Terror, Mary Ellen O'Connell

Journal Articles

In the hours after the 11 September attacks on the United States, some called for counterattacks on America's enemies, regardless of any evidence of wrong-doing. Those calls were rejected and some evidence was produced linking Osama bin Laden, his organization, al-Qaeda, and the Taliban regime of Afghanistan to the attacks. The United States and United Kingdom began a bombing campaign of Afghanistan on the strength of that evidence on 7 October 2001. This article explores the law of evidence in international law. It seeks to identify what evidence is sufficient for supporting a case of self-defence to clandestine terror attacks.

American Exceptionalism And The International Law Of Self-Defense, Mary Ellen O'Connell

Journal Articles

Following the September 11th attacks in the United States (U.S.), one could make a case for America's use of force in Afghanistan as a lawful exercise of the right of self-defense. But the proposals to invade Iraq following September 11th cannot be so defended. Those proposals did not concern defending the basic security of the U.S. in the sense that basic security defense is currently understood in the international community. They concerned, rather, defense of a more expansive concept of security, a concept wherein the U.S. need not tolerate antagonistic regimes with the potential to harm U.S. interests. The invasion …