Military, War, and Peace Commons^™

The Power To Threaten War, Matthew C. Waxman

Faculty Scholarship

Existing war powers scholarship focuses overwhelmingly on the President's power to initiate military operations abroad and the extent to which that power is constrained by Congress. It ignores the allocation of legal power to threaten military force or war, even though threats – to coerce or deter enemies and to reassure allies – are one of the most important ways in which the United States government wields its military might. This paper fills that scholarly void, and draws on recent political science and historical scholarship to construct a richer and more accurate account of the modern presidency's powers to shape …

Nuclear Kellogg-Briand Pact: Proposing A Treaty For The Renunciation Of Nuclear Wars As An Instrument Of National Policy, David A. Koplow

Georgetown Law Faculty Publications and Other Works

This article performs three functions. First, it offers a revisionist interpretation of the 1928 Kellogg-Briand Pact, the much-maligned treaty through which the key powers of the era, led by the United States, undertook to “outlaw” war, renouncing it as a tool of national policy and committing themselves to resort exclusively to pacific means for the resolution of their international disputes. Because of Kellogg-Briand’s inability to prevent the outbreak of World War II, the treaty has been derided for decades as a futile, utopian illusion, but this article argues that it was, in fact, a tremendous success in altering states’ attitudes …

Duck-Rabbits And Drones: Legal Indeterminacy In The War On Terror, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

In the days and weeks immediately following the 9/11 attacks, “the law” offered little to lawyers or policy-makers looking for guidance. Indeed, for many the events of 9/11 became the legal equivalent of a Rorschach test: depending on the observer, the 9/11 attacks were variously construed as criminal acts, acts of war, or something in between, thus fitting into (or triggering) any of several radically different legal regimes.

Divergent interpretations of the law are common, of course. Legal rules often contain an element of ambiguity, and the “facts” to which law must be applied can frequently be construed in multiple …

The United States, China, And Freedom Of Navigation In The South China Sea, James W. Houck, Nicole M. Anderson

Faculty Scholarship

The need for a uniform understanding of international norms regarding freedom of navigation is increasingly important as more States develop capacity to act in the international maritime realm. Nowhere is the issue of freedom of navigation more contentious, with more potential to spark wider conflict, than in the South China Sea (SCS). Both the United States and China profess an interest in the free navigation of commercial vessels in the region. Beyond commercial shipping, however, the two nations disagree on the important issue of freedom of navigation for military vessels. The United States believes all nations have wide latitude under …

Panel Ii: Balancing National Security And Transparency In Government Data Collection, Nate Cardozo, Mariko Hirose, Jonathan Manes, Ira Rubinstein, Christopher Wolf

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Dehumanization Of International Humanitarian Law: Legal, Ethical, And Political Implications Of Autonomous Weapon Systems, Markus Wagner

Vanderbilt Journal of Transnational Law

In the future, a growing number of combat operations will be carried out by autonomous weapon systems (AWS). At the operational level, AWS would not rely on direct human input. Taking humans out of the loop will raise questions of the compatibility of AWS with the fundamental requirements of international humanitarian law (IHL), such as the principles of distinction and proportionality, as well as complicate allocation of responsibility for war crimes and crimes against humanity.

This Article addresses the development toward greater autonomy in military technology along three dimensions: legal, ethical, and political concerns. First, it analyzes the potential dehumanizing …

Adapting The Law Of Armed Conflict To Autonomous Weapon Systems, Kenneth Anderson, Daniel Reisner, Matthew Waxman

Scholarly Articles in Law Reviews & Journals

As increasingly automated – and in some cases fully autonomous – weapon systems enter the battlefield or become possible, it is important that international norms to regulate them head down a path that is coherent and practical. Contrary to the claims of some advocates, autonomous weapon systems are not inherently illegal or unethical. The technologies involved potentially hold promise for making armed conflict more discriminating and causing less harm on the battlefield. They do pose important challenges, however, with regard to law of armed conflict rules regulating the use of weapons. Those challenges demand international attention and special processes for …

Pre-Crime Restraints: The Explosion Of Targeted, Non-Custodial Prevention, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

This Article exposes the ways in which noncustodial pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples — terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, criminal law procedural protections do not apply. They have exploded largely unchecked — subject to little more than bare rationality review and negligible procedural protections — and without any coherent theory as to …

After The Aumf, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

Over a dozen years later, the AUMF — which has never been amended — remains the principal source of the U.S. government’s domestic legal authority to use military force against al Qaeda and its associates, both on the battlefields of Afghanistan and far beyond. But even as the statutory framework has remained unchanged, the facts on the ground have evolved dramatically, leading some to call for a new AUMF. In short, calls for a new framework statute to replace the AUMF are unnecessary, provocative, and counterproductive; they perpetuate war at a time when we should be seeking to end it. …

Civilians And Armed Conflict, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

We tend to view concern with the protection of civilians as a relatively recent development within the Security Council: a product of the late 20th century genocides and ethnic cleansing campaigns in Rwanda and the Balkans. But while it is indeed true that the Council’s first thematic resolution directly addressing “protection of civilians” was not passed until 1999—and also true, unfortunately, that Security Council civilian protection efforts have yet to move beyond the sporadic and inconsistent—the Council has always concerned itself with civilian protection. Indeed, the history of the Security Council itself (as well as the history of the United …

Unsatisfying Wars: Degrees Of Risk And The Jus Ex Bello, Gabriella Blum, David Luban

Georgetown Law Faculty Publications and Other Works

Self-defensive war uses violence to transfer risks from one’s own people to others. We argue that central questions in just war theory may fruitfully be analyzed as issues about the morality of risk transfer. That includes the jus ex bello question of when states are required to accept a ceasefire in an otherwise-just war. In particular, a “war on terror” that ups the risks to outsiders cannot continue until the risk of terrorism has been reduced to zero or near zero. Some degree of security risk is inevitable when coexisting with others in the international community, just as citizens within …

Credibility And War Powers, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

In late August 2013, after Syrian civilians were horrifically attacked with sarin gas, President Barack Obama declared his intention to conduct limited airstrikes against the Syrian regime of President Bashar al-Assad. A year earlier, President Obama had announced that the use of chemical weapons was "red line" for the United States. Advocates for military action now argued that if the credibility of American threats diminished, dictators would have license to act with impunity. President Obama himself seemed to embrace this justification for action. "The international community’s credibility is on the line," he said in early September. "And America and Congress’s …

Unfriendly Unilateralism, Monica Hakimi

Faculty Scholarship

This Article examines a category of conduct that I call “unfriendly unilateralism.” One state deprives another of a benefit (unfriendly) and, in some cases, strays from its own obligations (noncompliant), outside any structured international process (unilateral). Such conduct troubles many international lawyers because it looks more like the nastiness of power politics than like the order and stability of law. Worse, states can abuse the conduct to undercut the law. Nevertheless, international law tolerates unfriendly unilateralism for enforcement. A victim state may use unfriendly unilateralism against a scofflaw in order to restore the legal arrangement that existed before the breach. …

Law, Ethics, And The Responsibility To Protect, Michael W. Doyle

Faculty Scholarship

The events in Libya in 2011 and Syria in 2012 have severely tested the balance between emerging global norms and the pushback they have generated, a contest between global and local, with outcomes as yet unclear.

Some established great powers, particularly Russia and China, suffered “buyer’s remorse” for the global principle of “responsibility to protect” peoples from massacres, when that responsibility was seen as authorizing regime change in countries such as Libya. This remorse occurred just a few short years after they and the entire rest of the United Nations member states unanimously endorsed the principle at the World Summit …

International Law And The Future Of Peace, Diane Marie Amann

Scholarly Works

These remarks, delivered at the April 4, 2013, luncheon of the American Society of International Law Women in International Law Interest Group, reflects on contributions of Jane Addams and other members of the early 20th C. peace movement as a means to explore law and practice related to the contemporary use of force and armed conflict.

War Is Governance: Explaining The Logic Of The Laws Of War From A Principal-Agent Perspective, Eyal Benvenisti, Amichai Cohen

Michigan Law Review

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying each other’s capabilities commit to and obey rules designed to limit their choice of targets, weapons, and tactics? Traditionally, answers to this question have been offered on the one hand by moralists who regard the law as being inspired by morality and on the other by realists who explain this branch of law on the basis of reciprocity. Neither side’s answers withstand close scrutiny. In this Article, we develop an alternative explanation that is based on the principal–agent model of domestic governance. …

Still Shortchanged: Some Observations About The New Army/Marine Corps Coin Doctrine, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Clever Or Clueless? Observations About Bombing Norm Debates, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

The Hyper-Personalization Of War: Cyber, Big Data, And The Changing Face Of Conflict, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Addressing Global Threat: Exploring The Relationship Between Common Purpose And Leadership, Charles R.H. Powell

Antioch University Dissertations & Theses

While the mention of common purpose is prevalent in leadership studies, there are few attempts to explore the relationship between common purpose and leadership. This study delves into the questions of if and how common purpose and leadership inform one another. How leaders adapt purpose and leadership approaches in response to evolving and turbulent conditions may foster the depth and sustainment of immediate and subsequent accomplishments. Through phenomenological research in the venue of nuclear weapons reduction, a common purpose that is both globally pervasive and imbued with a sense of urgency, the lived essence of those engaged in common purpose …

Using Force Against The "Weapons Of The Weak": Examining A Chemical-Biological Weapons Usage Criterion For Unilateral Humanitarian Intervention Under The Responsibility To Protect, Andrew M. Bell

Cardozo Journal of International and Comparative Law

The civil war in Syria has demonstrated the international community's inability to act to protect civilians caught in mass atrocities during cases of U.N. Security Council deadlock, with permanent member vetoes presenting a significant legal obstacle to international humanitarian intervention.

The Responsibility to Protect (R2P) construct, created in response to the NATO intervention in Kosovo, was originally designed to overcome such Security Council paralysis by transforming the debate from the "right" of states to intervene to the "responsibility" of the entire international community to protect civilians as well as open the door to legitimate unilateral humanitarian intervention in cases of …

From Villa Grimaldi To Guantánamo Bay: Remedying Human Rights Abuses In Chile And The United States, Nadia Shamsi

Cardozo Journal of International and Comparative Law

The article examines the effectiveness of transitional justice mechanisms in addressing human rights abuses, using Chile's experience under Augusto Pinochet as a model. It critiques the U.S. for failing to adopt similar approaches to accountability, particularly in addressing abuses at Guantanamo Bay and other detention centers. The analysis highlights the importance of combining truth commissions, criminal prosecutions, and reparations to achieve justice and promote democratic transition. It argues that the U.S. must align its domestic practices with the international human rights standards it promotes.