Military, War, and Peace Commons^™

Prologue To A Voluntarist War Convention, Robert D. Sloane

Michigan Law Review

This Article attempts to identify and clarify what is genuinely new about the "new paradigm" of armed conflict after the attacks of September 11, 2001. Assuming that sound policy counsels treating certain aspects of the global struggle against modern transnational terrorist networks within the legal rubric of war, this Article stresses that the principal challenge such networks pose is that they require international humanitarian law, somewhat incongruously, to graft conventions-in both the formal and informal senses of that word-onto an unconventional form of organized violence. Furthermore, this process occurs in a context in which one diffuse "party" to the conflict …

International Law And Constitutional Interpretation: The Commander In Chief Clause Reconsidered, Ingrid Brunk Wuerth

Michigan Law Review

The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of interpreting the Constitution. This Article analyzes why the Commander in Chief Clause is difficult and argues that international law helps resolve some of the problems that the Clause presents. Because of weaknesses in originalist analysis, changes over time, and lack of judicial competence in military matters, the Court and commentators have relied on second-order interpretive norms like congressional authorization and executive branch practice in interpreting the …

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

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

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 …

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).

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.

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 …

The Politics Of The Geneva Conventions: Avoiding Formalist Traps, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The Geneva Conventions were drafted in 1949, in another world. The world of the Geneva Conventions' "framers" is still familiar to all of us, though increasingly it is familiar from movies and books rather from the evening news or, still less, our own lived experience. The world in which the Conventions were drafted was a world of states: powerful states, weak states, predatory states, law-abiding states, but states all the same. Soldiers wore uniforms designed by their states, carried weapons issued by their states, obeyed orders given by their commanders, and fought against the armies of other states.

Well--most of …

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 …

War Everywhere: Rights, National Security Law, And The Law Of Armed Conflict In The Age Of Terror, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

Both international and domestic law take as a basic premise the notion that it is possible, important, and usually fairly straightforward to distinguish between war and peace, emergencies and normality, the foreign and the domestic, the external and the internal. From an international law perspective, the law of armed conflict is triggered only when a armed conflict actually exists; the rest of the time, other bodies of law are applicable. Domestically, U.S. courts have developed a constitutional and statutory jurisprudence that distinguishes between national security issues and domestic questions, with the courts subjecting government actions to far less scrutiny when …

Sexual Violence As Genocide: The Developing Law Of The International Criminal Tribunals And The International Criminal Court, Jonathan M.H. Short

Michigan Journal of Race and Law

This note will explore the treatment of the two primary violent sexual acts, rape and forced pregnancy, in modern international criminal law; more specifically in its treatment as genocide. The woman as an individual is the primary sufferer of sexual violence during armed conflict, however sexual violence is a calculated means by which perpetrators seek to destroy an entire ethnic group. Sexual violence is both an attack against the woman and an attack against the ethnic group, and should be prosecuted as such. While crimes against individuals are best prosecuted as crimes against humanity or under domestic law, crimes committed …

The New Chemical Weapons Convention And Export Controls: Towards Greater Multilateralism, Urs A. Cipolat

Michigan Journal of International Law

The article is structured in five parts. Section I gives an overview of the history of the CWC. Section II focuses on the CWC' s material scope. This discussion is important in order to determine the items that will fall under an eventual export control obligation. Section III presents the main obligations under the CWC, while Section IV deals exclusively with the specific obligations pertaining to export controls. The implementation of these specific obligations-which, for the purposes of this article, are referred to as transfer rules-is the focus of Section V.

Footprints Of Death: Cluster Bombs As Indiscriminate Weapons Under International Humanitarian Law, Virgil Wiebe

Michigan Journal of International Law

This Article applies these principles of discrimination to the real, rather than idealized, use and characteristics of cluster bombs. Briefly stated, these principles call upon parties to an armed conflict to distinguish between civilians and combatants and to weigh the military advantages of a particular weapon or type of attack against the harm it will do to civilians and civilian objects. This Article also considers briefly the global problem of cluster munitions and examines fundamental components of the discrimination principle as they apply to cluster bombs. As three specific case studies, it analyzes the use of cluster bombs by breakaway …

The International Legal Implications Of "Non-Lethal" Weapons, David P. Fidler

Michigan Journal of International Law

In this Article, the author attempts a comprehensive international legal analysis of "non-lethal" weapons to raise awareness about how many international legal issues they create and about the complexity of analyzing the international legality of the development and use of these weapons. In short, the emergence of "non-lethal" weapons does not rescue international law from its crisis in connection with controlling war. Indeed, in some respects, the coming of "non-lethal" weapons threatens to deepen that crisis in new and disturbing ways.

Clear And Present Danger: Enforcing The International Ban On Biological And Chemical Weapons Through Sanctions, Use Of Force, And Criminalization, Michael P. Scharf

Michigan Journal of International Law

Currently there are two means of enforcing the international prohibition of chemical and biological weapons. First, the international community can induce compliance through imposition of sanctions, such as trade embargoes, freezing of assets and diplomatic isolation. Second, when sanctions fail, States can individually or collectively respond to the threat of chemical or biological weapons by using military force. After exploring the potential strengths and weaknesses of these approaches, this article examines the desirability of supplementing them with a third approach based on the criminal prosecution of persons responsible for the production, stockpiling, transfer, or use of chemical and biological weapons.

The Potential Contribution Of The Chemical Weapons Convention To Combatting Terrorism, Cecil Hunt

Michigan Journal of International Law

This paper includes an identification and brief assessment of features of the CWC that could be helpful in dealing with the danger of use of chemical weapons in terrorist activity. They are presented under six headings which should be viewed as theses. For some of these theses this paper can offer little support, but points, instead, to missed opportunities and to the need for further efforts.

The Fractured Soul Of The Dayton Peace Agreement: A Legal Analysis, Fionnuala Ni Aolain

Michigan Journal of International Law

This essay examines the substantial bilateral relationships between the domestic and international legal systems that have had enormous effects on the perception and efficacy of the local legal order. In particular, it charts the effect of the International Tribunal for the Former Yugoslavia on local legal culture and the potential for greater liaison and support between local and international legal entities. This essay also notes the extent to which overlapping and confused mandates by a myriad of international organizations, many of which exercise legal functions, have been unresponsive to or dismissive of localized capacity.

The Right To Return Under International Law Following Mass Dislocation: The Bosnia Precedent?, Eric Rosand

Michigan Journal of International Law

On the night of May 2, 1997, some twenty-five abandoned Serb houses were set on fire in the Croat-controlled municipality of Drvar, part of the Muslim-Croat Federation of Bosnia and Herzegovina. It was clear from all the circumstances that Croats organized the arson of houses in Drvar to obstruct the return of the original Serb residents to the area. Croat authorities then made a concerted effort to resettle displaced Croats in Drvar in order to solidify a stretch of "ethnically-pure" territory adjacent to the Republic of Croatia. These displaced Bosnian Serbs are just a few of the estimated 2.3 million …

Tadić, The Anonymous Witness And The Sources Of International Procedural Law, Natasha A. Affolder

Michigan Journal of International Law

This article explores the Trial Chamber's decision to allow the use of anonymous testimony as a protective measure in the wake of the final judgment in the Tadić trial. This initial decision, granting the prosecutor's request for protective measures including the withholding of four witnesses' identities from the accused, formed a precedent upon which later rulings for protective measures relied, both throughout the Tadić case and in subsequent cases before the International Tribunal.

Reappraising Policy Objections To Humanitarian Intervention, Dino Kritsiotis

Michigan Journal of International Law

This article's purpose is not to search for particular conclusions as to the substantive merit or the present legal status of the right of humanitarian intervention as defined and in view of this seeming tension between recent practice and established principle. Its governing concern, rather, lies with: fundamental principles of analysis and method; the formal sources of public international law consulted in the examination of the validity of humanitarian intervention; how normative determinations are reached in the first place; and the techniques which are adopted in navigating our course to these ends.

The Role Of The United Nations Security Council In African Peace Management: Some Porposals, A. Peter Mutharika

Michigan Journal of International Law

The United Nations global peace management scheme is based on certain fundamental assumptions that require serious reexamination as we enter the twenty-first century. Fundamental to the 1945 vision of global peace management was the prevention of a third world war through collective action by the great powers. Structurally, this was to be achieved by a system of great power governance through the mechanism of the Security Council. While the Charter confers on the Security Council "primary responsibility" for the maintenance of international peace and security, executive decision-making is reserved for the great powers through permanent membership and the veto power. …

Is The Law Of War Really Law? War And Law Since 1945, Alfred P. Rubin

Michigan Journal of International Law

Review of Law and War Since 1945 by Geoffrey Best

An Analysis Of The Oslo Ii Agreement In Light Of The Expectations Of Shimon Peres And Mahmoud Abbas, Justus R. Weiner

Michigan Journal of International Law

Review of Battling for Peace: A Memoir by Shimon Peres, and by Mahmoud Abbas

The War Powers In French Constitutional Law, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

The Grave Breaches System And The Armed Conflict In The Former Yugoslavia, Oren Gross

Michigan Journal of International Law

The system of grave breaches, established in the Conventions, is the focal point of the enforcement mechanism of international humanitarian law in general and of the Conventions in particular. It is therefore surprising that very little has been written to date about this system. This article is intended to fill that gap by discussing the repression -the prohibition, prosecution, and adjudication - of grave breaches of the Conventions. The article's main purpose is to chart and map the basic contours of the terrain of an area which despite its vast significance has not been adequately and systematically explored. It is …

Advancing The Law Of Weapons Control - Comparative Approaches To Strengthen Nuclear Non-Proliferation, David S. Gualtieri, Barry Kellman, Kenneth E. Apt, Edward A. Tanzman

Michigan Journal of International Law

This article analyzes in-depth the SAGSI recommendation that more effective safeguards draw upon "the elements (including the managed access provisions) contained in Part X of the Verification Annex to the Convention on the Prohibition of Chemical Weapons.” SAGSI found that the Chemical Weapons Convention (CWC) offers approaches for verification and investigation that may be adaptable to the NPT.

A Memorial For Bosnia: Framework Of Legal Arguments Concerning The Lawfulness Of The Maintenance Of The United Nations Security Council's Arms Embargo On Bosnia And Herzegovina, Craig Scott, Abid Qureshi, Jasminka Kalajdzic, Francis Chang, Paul Michell, Peter Copeland

Michigan Journal of International Law

This Memorial seeks to present a framework of legal arguments with respect to the validity and legal effects of an arms embargo imposed by United Nations Security Council Resolution 713 in September 1991 on the Socialist Federal Republic of Yugoslavia (Yugoslavia), before its dissolution, and since treated as being in force with respect to the new states that have succeeded Yugoslavia. More particularly, the Memorial addresses the legality of maintaining (or, at least, having maintained during the crucial time period) the arms embargo in force, either de jure or de facto, against the Republic of Bosnia and Herzegovina (Bosnia) …

A Treaty Is A Treaty Is A Treaty, Malvina Halberstam

Articles

No abstract provided.

Article 51: Limits On Self-Defense?, Thomas K. Plofchan Jr.

Michigan Journal of International Law

This article's two-pronged analysis has three distinct parts. Part I lays out the controversy of Article 51 interpretation as applied to the recent Gulf Crisis. Part II examines the legal guidance for interpreting the U.N. Charter, the Charter's travaux preparatoires, and specifically the work of the committees and subcommittees responsible for drafting and amending articles that fully incorporate the right of self-defense into the Charter. This Part develops conclusions on Article 51 that may be applied to the context of the recent Gulf Crisis. This Part also contrasts the Article 51 right of collective self-defense with the right of …