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Articles 31 - 60 of 109
Full-Text Articles in Military, War, and Peace
Failures To Punish: Command Responsibility In Domestic And International Law, Amy J. Sepinwall
Failures To Punish: Command Responsibility In Domestic And International Law, Amy J. Sepinwall
Michigan Journal of International Law
This Article embraces one of two contested understandings of what a failure to punish entails. On the first understanding, a military commander's failure to punish is construed solely as a dereliction of duty. Accordingly, his failure to punish constitutes a separate offense from the underlying atrocity that his troops have committed. The failure to punish is, then, a substantive offense in its own right. On a second understanding, for which I argue here, the failure to punish renders the commander criminally liable for the atrocity itself, even if he neither ordered nor even knew about the atrocity before its occurrence. …
"Change Direction" 2006: Israeli Operations In Lebanon And The International Law Of Self-Defense, Michael N. Schmitt
"Change Direction" 2006: Israeli Operations In Lebanon And The International Law Of Self-Defense, Michael N. Schmitt
Michigan Journal of International Law
This Article explores and assesses the Israeli justification for Operation Change Direction. Did the law of self-defense provide a basis for the operation? If so, defense against whom-Hezbollah, the State of Lebanon, or both? Were the Israeli actions consistent with the criteria for a lawful defensive action: necessity, proportionality, and immediacy? Did Operation Change Direction unlawfully breach Lebanese territorial integrity?
Dionysian Disarmament: Security Coucil Wmd Coercive Disarmament Measures And Their Legal Implication, James D. Fry
Dionysian Disarmament: Security Coucil Wmd Coercive Disarmament Measures And Their Legal Implication, James D. Fry
Michigan Journal of International Law
This Article provides the first comprehensive legal analysis of the Security Council's coercive disarmament and arms control measures involving weapons of mass destruction (WMD). In the process of providing this legal analysis, it presents a fresh perspective on a variety of widely held beliefs about disarmament and arms control law, as well as about U.N. law.
Rape At Rome: Feminist Interventions In The Criminalization Of Sex-Related Violence In Positive International Criminal Law, Janet Halley
Rape At Rome: Feminist Interventions In The Criminalization Of Sex-Related Violence In Positive International Criminal Law, Janet Halley
Michigan Journal of International Law
This Article examines the work of organized feminism in the formation of new international criminal tribunals over the course of the 1990s. It focuses on the statutes establishing the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). It offers a description of the evolving organizational style of feminists involved in the legislative processes leading to the establishment of these courts, and a description of their reform agenda read against the outcomes in each court-establishing statute. At each stage, the Article counts up the feminist victories and defeats, …
Averting Catastrophe: Why The Nuclear Nonproliferation Treaty Is Losing Its Deterrence Capacity And How To Restore It, Orde F. Kittrie
Averting Catastrophe: Why The Nuclear Nonproliferation Treaty Is Losing Its Deterrence Capacity And How To Restore It, Orde F. Kittrie
Michigan Journal of International Law
This Article analyzes from a legal perspective the responses of the international community, and especially the Security Council, to the examples of nuclear proliferation outlined in this Article and the impact of those responses on the vitality of the nuclear nonproliferation regime. In doing so, the Article identifies and focuses on two key, interrelated themes. The first theme is the effect on these responses of the NPT's remarkably weak mechanisms for detecting violations of NPT obligations. The second theme is the frequent strong reluctance of the international community, including the Security Council, to impose serious sanctions for proliferation activity when …
The Unresolved Equation Of Espionage And International Law, A. John Radsan
The Unresolved Equation Of Espionage And International Law, A. John Radsan
Michigan Journal of International Law
This Essay, in order to offer up something to that appetite, is divided into five parts. After this introduction, the author, A. John Radsan, describes a Hegelian impulse, the perpetual drive to find unity in disorder. That impulse, for better or worse, creates the train and the track for many of the academy's journeys. Radsan then defines what is meant by "intelligence activities" for purposes of this Essay, after which Radsan surveys the scholarship that existed before this symposium on the relationship between espionage and international law. As the number of pages written on this topic suggests, scholarship on espionage …
State Intelligence Gathering: Conflict Of Laws, Charles H.B. Garraway
State Intelligence Gathering: Conflict Of Laws, Charles H.B. Garraway
Michigan Journal of International Law
This Article begins with an examination of the development of the law of war (Part II) and human rights law (Part III) before looking at the differing legal categories of armed conflict (Part IV). It then examines the applicability of human rights law in situations of armed conflict (Part V) and the increasing complexity of defining violence, whether as armed conflict or otherwise (Part VI). The Article proceeds with an examination of the overlap between the law of war and human rights law (Part VII) and the risk of divergence that this overlap causes (Part VIII). Finally, it seeks to …
What's International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker
What's International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker
Michigan Journal of International Law
This Article describes a continuum of contemporary threats to U.S. national security, with a focus on nonstate terrorism. Part III addresses the role of intelligence and national security law, and in particular law addressed to process, in combating these threats. Good process advances the liberty and safety interests embodied in the concept of national security. Good process improves the quality of decision. It also enhances accountability, which in turn improves decision. Where good process is defined in law to include executive directive, it is better insulated from the immediate imperatives of secrecy and speed.
Individual And State Responsibility For Intelligence Gathering, Dieter Fleck
Individual And State Responsibility For Intelligence Gathering, Dieter Fleck
Michigan Journal of International Law
It is the purpose of this contribution to examine relevant norms and principles for assessing acts of intelligence gathering under international law (Part I), evaluate legal problems of attribution of such acts (Part II), and, where governments commit wrongful acts, look into circumstances precluding their wrongfulness (Part III). Based on these considerations, legal consequences for criminal accountability (Part IV) and reparation (Part V) will be discussed. Finally, some conclusions may be drawn (Part VI).
Keynote Address, Jeffrey H. Smith
Keynote Address, Jeffrey H. Smith
Michigan Journal of International Law
This afternoon, I want to touch briefly on a number of issues rather than discuss one or two to death. I chose this approach because it seemed an appropriate way to open a conference. I also chose it because I hope I can convince you that intelligence and international law interact in a way that simultaneously strengthens the law and improves intelligence; that law matters, especially in time of war; and that both good intelligence and good law have one common core value: integrity. So that you will have a sense of the perspective that I bring to this, I …
Illegal Peace?: An Inquiry Into The Legality Of Power-Sharing With Warlords And Rebels In Africa, Jeremy I. Levitt
Illegal Peace?: An Inquiry Into The Legality Of Power-Sharing With Warlords And Rebels In Africa, Jeremy I. Levitt
Michigan Journal of International Law
This Article represents the first conscientious attempt to address these questions, present a conceptual framework for examining the legal and political efficacy of coercing democratically constituted governments into sharing power, and define a lawful basis or approach to sharing power when governments are confronted with the aforementioned scenario. The Article is polemical and questions the dominant logic that political power-sharing is lawful, legitimate, and unequivocally serves the public good, arguing that power-sharing deals that ignore controlling rules are unlawful and not viable.
Irrational War And Constitutional Design: A Reply To Professors Nzelibe And Yoo, Paul F. Diehl, Tom Ginsburg
Irrational War And Constitutional Design: A Reply To Professors Nzelibe And Yoo, Paul F. Diehl, Tom Ginsburg
Michigan Journal of International Law
This Reply proceeds as follows. Part I outlines the argument of the Nzelibe and Yoo paper. Part II considers their principal-agent analysis in the context of the American political system. Part III elaborates on the "democratic peace" literature, demonstrating that it does not support the conclusions that they draw. Part IV addresses the argument that we are in a new strategic situation, such that old rules ought not apply. Part V concludes.
The Spy Who Came In From The Cold War: Intelligence And International Law, Simon Chesterman
The Spy Who Came In From The Cold War: Intelligence And International Law, Simon Chesterman
Michigan Journal of International Law
This Article will focus on the narrower questions of whether obtaining secret intelligence-that is, without the consent of the state that controls the information-is subject to international legal norms or constraints, and what restrictions, if any, control the use of this information once obtained. Traditional approaches to the question of the legitimacy of spying, when even asked, typically settle on one of two positions: either collecting secret intelligence remains illegal despite consistent practice, or apparent tolerance has led to a "deep but reluctant admission of the lawfulness of such intelligence gathering, when conducted within customary normative limits.” Other writers have …
Transitional Justice In Times Of Conflict: Colombia's Ley De Justicia Y Paz, Lisa J. Laplante, Kimberly Theidon
Transitional Justice In Times Of Conflict: Colombia's Ley De Justicia Y Paz, Lisa J. Laplante, Kimberly Theidon
Michigan Journal of International Law
The authors of this Article were committed to researching the impact of the paramilitary demobilization process "on the ground"-that is, conducting qualitative research that would allow us to test the validity of different debates with the goal of generating recommendations on how future conflict and post-conflict countries might benefit from the merging of DDR and transitional justice. In this text we draw upon the preliminary results of our research on the individual and collective demobilization programs. The first stage of the project included 112 in-depth interviews with demobilized combatants from the Fuerzas Armadas Revolucionarias de Colombia-Ej rcito del Pueblo (FARC-EP) …
Is Poetry A War Crime? Reckoning For Radovan Karadzic The Poet-Warrior, Jay Surdukowski
Is Poetry A War Crime? Reckoning For Radovan Karadzic The Poet-Warrior, Jay Surdukowski
Michigan Journal of International Law
This Note will suggest that the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) can use Karadzic's texts and affectations to warrior poetry in the pretrial brief and in admitted evidence, if and when Karadzic ultimately appears for trial. The violent nationalism of radio broadcasts, political journals, speeches, interviews, and manifestos have been fair game for the Office of the Prosecutor to make their cases in the last decade in both the Yugoslavia and Rwanda Tribunals. Why should poetry, perhaps the most powerful maker of myth and in the Yugoslavia context, a great mover …
From Indifference To Engagement: Bystanders And International Criminal Justice, Laurel E. Fletcher
From Indifference To Engagement: Bystanders And International Criminal Justice, Laurel E. Fletcher
Michigan Journal of International Law
This Article contributes to the scholarship on transitional justice by examining how the legal architecture and operation of international criminal law constricts bystanders as subjects of jurisprudence, considering the effects of this limitation on the ability of international tribunals to promote their social and political goals, and proposing institutional reforms needed to address this limitation.
Legal "Black Hole"? Extraterritorial State Action And International Treaty Law On Civil And Political Rights, Ralph Wilde
Legal "Black Hole"? Extraterritorial State Action And International Treaty Law On Civil And Political Rights, Ralph Wilde
Michigan Journal of International Law
This Article considers the significant role that extraterritorial activity is playing in the post-9/11 foreign policy of some States and the idea that this activity somehow takes place "outside" the law or, at least, outside an arena where legal norms apply as a matter of course rather than only when and to the extent that the State involved decides these norms will apply. It begins in Section II by mapping out the extraterritorial state activities conducted since 9/11, covering activities with a personalized object-such as the military action taken in Afghanistan against Al Qaeda-and activities with a spatial (territorial) object-such …
Is Unilateral Humanitarian Intervention Compatible With The U.N. Charter?, Petr Valek
Is Unilateral Humanitarian Intervention Compatible With The U.N. Charter?, Petr Valek
Michigan Journal of International Law
The main topic of this Note is the compatibility of unilateral humanitarian intervention with Article 2(4) of the U.N. Charter (the Charter). Through its interpretation, the author will attempt to discover whether the Grotian idea of unilateral humanitarian intervention can survive in the environment of contemporary international law without its "just war appendix." This Note will separate this idea from its "just war justification" and approach the question of the compatibility of such intervention with the Charter as a legal positivist. In the interpretation of Article 2(4) of the Charter, this Note will try to avoid moral principles. Instead, it …
Article 9 Of The Constitution Of Japan And The Use Of Procedural And Substantive Heuristics For Consensus, Mark A. Chinen
Article 9 Of The Constitution Of Japan And The Use Of Procedural And Substantive Heuristics For Consensus, Mark A. Chinen
Michigan Journal of International Law
This Article’s purpose is to examine the revision debates through the lens of recent scholarship on constitutional decisionmaking to see what lessons might be drawn about constitutionalism in Japan and elsewhere. In Part I, the author discusses Article 9's text and interpretation and focus on three controversies: first, Japan's ability to use force to defend itself and the related issue of the constitutionality of the Japan Self Defense Force (SDF); second, Japan's ability to engage in collective self-defense, which impacts the state's security relationship with the United States under the U.S.-Japan Mutual Security Agreement; and finally, Japan's ability to participate …
Sexual Slavery And The International Criminal Court: Advancing International Law, Valerie Oosterveld
Sexual Slavery And The International Criminal Court: Advancing International Law, Valerie Oosterveld
Michigan Journal of International Law
This Article explores the advancement of the international crime of sexual slavery, from its initial inclusion in the Rome Statute of the International Criminal Court through further development in the delineation of the ICC's Elements of Crime document. This Article begins with a detailed exploration of the negotiation process that led to the inclusion of the crime of sexual slavery in the Rome Statute. The first Section describes the decision to include both sexual slavery and enforced prostitution as crimes, as well as the debate on listing sexual slavery as a crime separate from that of enslavement. Next, the Section …
Beyond Rights: Legal Process And Ethnic Conflicts, Elana A. Baylis
Beyond Rights: Legal Process And Ethnic Conflicts, Elana A. Baylis
Michigan Journal of International Law
Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. Ethnically divided states have struggled to build structural safeguards against such disputes into their political and legal systems, but these safeguards have not been able to prevent all conflict. Accordingly, multi-ethnic states facing persistent ethnic conflicts need to develop effective dispute resolution systems for resolving those conflicts. This presents an important question: what kinds of processes and institutions might enable ethnic groups to resolve their conflicts with each other and the state? This Article explores that question, reviewing the interdisciplinary literature on ethnic conflicts, the legal literature …
The War Against Iraq And The Future Of International Law: Hegemony Or Pluralism?, Andreas Paulus
The War Against Iraq And The Future Of International Law: Hegemony Or Pluralism?, Andreas Paulus
Michigan Journal of International Law
This Article is devoted to the question of the future relevance of international law at a time when the idea of a "rule of law" in international affairs seems to be waning. Why should the sole superpower look to international law in its quest for protection from dangers of weapons of mass destruction and terrorists? Is the European insistence on questions of legality, which was visible in the dramatic British attempts to secure some kind of Security Council backing and to advance international legal arguments for its participation in the invasion of Iraq, more than a fig leaf for a …
Preemptive Strategies In International Law, Michael N. Schmitt
Preemptive Strategies In International Law, Michael N. Schmitt
Michigan Journal of International Law
This Article explores the appropriateness of preemptive strategies in international law. Are preemptive actions approved by the international community lawful? Can States act unilaterally or in a coalition of the willing to preempt terrorism, the development and transfer of WMD, or other threats? If so, under what circumstances and based on what quantum and quality of evidence? When can preemptive actions be taken against non-State actors such as terrorists who are based in other States?
When Can Nations Go To War? Politics And Change In The Un Securtiy System, Charlotte Ku
When Can Nations Go To War? Politics And Change In The Un Securtiy System, Charlotte Ku
Michigan Journal of International Law
In an appreciation of Harold Jacobson written for the American Journal of International Law, the author concluded that following the events of September 11, 2001, we would need the kind of gentle wisdom Harold Jacobson brought to his tasks more than ever. The author also recalled Harold Jacobson's own observation in Networks of Interdependence that his assessment of the global political system was an optimistic, but not a naive one. These qualities of quiet determination to get to the bottom of an issue and of optimism stemmed from a fundamental belief that individuals, armed with information and the opportunity …
The Responsibility To Protect: A Beaver Without A Dam?, Jeremy I. Levitt
The Responsibility To Protect: A Beaver Without A Dam?, Jeremy I. Levitt
Michigan Journal of International Law
Review of International Commission on Intervention and State Sovereignty, The Responsibility to Protect and The Responsibility to Protect: Research, Bibliography, Background (Supp. Vol. to the Responsibility to Portect by Thomas G. Weiss & Don Hubert
The Concept Of Accountability In World Politics And The Use Of Force, Robert O. Keohane
The Concept Of Accountability In World Politics And The Use Of Force, Robert O. Keohane
Michigan Journal of International Law
This paper proceeds as follows. In Part I, the author discuss a pluralistic theory of accountability. He begins by defining accountability in a standard fashion, emphasizing two conditions: the availability of information to accountability-holders, and their ability to sanction power-wielders. The author then proceeds to discuss a pluralistic conception of accountability systems. Part II then develops a typology of eight accountability mechanisms, all of which are found in democratic societies, but not all of which are democratic per se. Part III builds on the Jacobson-Ku discussion of the current practices, relative to accountability, of the Security Council and asks …
Antiterrorism Military Commissions: The Ad Hoc Dod Rules Of Procedure, Jordan J. Paust
Antiterrorism Military Commissions: The Ad Hoc Dod Rules Of Procedure, Jordan J. Paust
Michigan Journal of International Law
While the article Antiterrorism Military Commissions: Courting Illegality was set for publication, the Department of Defense formally issued its first set of Procedures for Trials by Military Commission of Certain Non-United States Citizens in the War Against Terrorism. The President's November 13th Military Order had set up several per se violations of international law. Instead of attempting to avoid them, the DOD Order of March 21, 2002 continued the violations, set up additional violations of international law, and created various rules of procedure and evidence that, if not per se violative of international law, are highly problematic. This is a …
The Promise Of Truth Commissions In Times Of Transition, Mariah Jackson Christensen
The Promise Of Truth Commissions In Times Of Transition, Mariah Jackson Christensen
Michigan Journal of International Law
Review of Unspeakable Truths: Confronting State Terror and Atrocity by Priscilla B. Hayner
The Post-Conflict Transitional Administration Of Kosovo And The Lessons-Learned In Efforts To Establish A Judiciary And Rule Of Law, Wendy S. Betts, Scott N. Carlson, Gregory Grisvold
The Post-Conflict Transitional Administration Of Kosovo And The Lessons-Learned In Efforts To Establish A Judiciary And Rule Of Law, Wendy S. Betts, Scott N. Carlson, Gregory Grisvold
Michigan Journal of International Law
The study of post-conflict Kosovo presents an important opportunity to distill lessons that can provide guidance for future post-conflict, transitional administrations. The lessons-learned from an analysis of any post-conflict setting are many and varied. The goal of this short paper is limited to the identification of key lessons-learned in the effort to reestablish the judiciary and rule of law in post-conflict Kosovo. Even within this limited setting, this paper is not intended to provide exhaustive coverage of the issue. Rather, it is intended to provide the reader with basic information and central themes that are essential to a discussion of …
Antiterrorism Military Commissions: Courting Illegality, Jordan J. Paust
Antiterrorism Military Commissions: Courting Illegality, Jordan J. Paust
Michigan Journal of International Law
On November 13, 2001, President Bush issued a sweeping and highly controversial Military Order for the purpose of creating military commissions with exclusive jurisdiction to try certain designated foreign nationals "for violations of the laws of war and other applicable laws" relevant to any prior or future "acts of international terrorism." The Order reaches far beyond the congressional authorization given the President "to use all necessary and appropriate force," including "use of the United States Armed Forces," against those involved in the September 11th attack "in order to prevent any future acts of international terrorism against the United States by …