Jurisdiction of Military Commissions and the Ambiguous War on Terrorism

2002 ◽  
Vol 96 (2) ◽  
pp. 345-354 ◽  
Author(s):  
Joan Fitzpatrick
Keyword(s):  
United States ◽  
Armed Conflict ◽  
International Terrorism ◽  
War On Terrorism ◽  
Law Of War ◽  
The Third ◽  
The Law ◽  
Military Commissions ◽  
The Military ◽  
Civil Courts

The Military Order issued on November 13,2001,1 by President George W. Bush does not offer a clear rationale for subjecting international terrorists, and persons suspected of links to them, to trial by military commissions. Military commissions can be designed for several purposes: (1) to prosecute violations of the law of war, as an alternative to courts-martial; (2) to fill a legal vacuum where armed conflict disables the civil courts; and (3) to impose swift and certain punishment against civilians suspected of specific crimes. While the first two purposes are legitimate and reflected in past United States practice, the third is questionable and a sharp departure from democratic traditions. The ambiguous nature of the “war” against international terrorism and the sweeping text of the November 13 Military Order obscure which objective(s) the order is intended to accomplish.

scholarly journals The Rule of Law and the Role of Strategy in U.S. Nuclear Doctrine

2021 ◽  
Vol 45 (4) ◽  
pp. 126-166
Author(s):  
Scott D. Sagan ◽  
Allen S. Weiner
Keyword(s):  
United States ◽  
Armed Conflict ◽  
The United States ◽  
Nuclear War ◽  
Law Of Armed Conflict ◽  
Conventional Weapons ◽  
Chain Of Command ◽  
The Law ◽  
Principle Of Proportionality ◽  
The Military

Abstract In 2013, the U.S. government announced that its nuclear war plans would be “consistent with the fundamental principles of the Law of Armed Conflict” and would “apply the principles of distinction and proportionality and seek to minimize collateral damage to civilian populations and civilian objects.” If properly applied, these legal principles can have a profound impact on U.S. nuclear doctrine. The prohibition against targeting civilians means that “countervalue” targeting and “minimum deterrence” strategies are illegal. The principle of distinction and the impermissibility of reprisal against civilians make it illegal for the United States, contrary to what is implied in the 2018 Nuclear Posture Review, to intentionally target civilians even in reprisal for a strike against U.S. or allied civilians. The principle of proportionality permits some, but not all, potential U.S. counterforce nuclear attacks against military targets. The precautionary principle means that the United States must use conventional weapons or the lowest-yield nuclear weapons that would be effective against legitimate military targets. The law of armed conflict also restricts targeting of an enemy's leadership to officials in the military chain of command or directly participating in hostilities, meaning that broad targeting to destroy an enemy's entire political leadership is unlawful.

The Geneva Convention of 1864 and the Brussels Conference of 1874

1974 ◽  
Vol 14 (163) ◽  
pp. 527-537 ◽  
Author(s):  
Danièle Bujard
Keyword(s):  
Armed Conflict ◽  
Human Life ◽  
Geneva Convention ◽  
Armed Conflicts ◽  
International Seminar ◽  
Laws Of War ◽  
Law Of War ◽  
The Law

The year 1974 marks the centennial of the International Declaration of Brussels on the Laws and Customs of War. This effort to codify the most important laws of war, undertaken on the initiative of Czar Alexander II of Russia, constituted a decisive stage in the development of the law of war. It is this event which the Committee for the Protection of Human Life in Armed Conflicts, under the patronage of the Belgian Government, proposes to commemorate by an international seminar on the theme “The Concept of International Armed Conflict—New Perspectives”, in December of this year.

Law and War in the New World

2021 ◽  
pp. 31-50
Author(s):  
Douglas G. Baird
Keyword(s):  
United States ◽  
American Revolution ◽  
New World ◽  
The United States ◽  
Central Character ◽  
Law Of War ◽  
Captivity Narrative ◽  
Legal Rules ◽  
American Experience ◽  
The Law

James Fenimore Cooper’s first novels form an overarching narrative that attempts to capture the American experience. In The Last of the Mohicans, modeled on the captivity narrative, the civilized European world, bound by formal legal rules, overtakes a wilderness—but not completely, and not always for the better. In The Spy, the protagonist is both a social outcast and a true hero of the American Revolution. In The Pioneers, the central character cannot reconcile himself with the new society taking shape in the United States. Each novel culminates in a trial that turns on the law of war. The novels use the tension between the law of war and the inner moral compass of the hero to understand the fate of the young republic and whether it, too, is destined to suffer the fate of past civilizations, each of which was born, rose, and then fell.

17 The Law of Armed Conflict at Sea

2021 ◽  
Author(s):  
von Heinegg Wolff Heintschel
Keyword(s):  
United Nations ◽  
Armed Conflict ◽  
Legal Status ◽  
Armed Conflicts ◽  
Naval Warfare ◽  
Progressive Development ◽  
The Third ◽  
Law Of Armed Conflict ◽  
The Law ◽  
Hospital Ships

This chapter evaluates legal developments and practice with respect to armed conflict at sea. The Third United Nations Conference on the Law of the Sea has progressively developed the law and contributed to the emergence of multiple differing regimes, some of which are now customary in character. The San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1995) provides a contemporary restatement of the law of armed conflict at sea, together with some progressive development. The chapter provides an overview of the different acts of naval warfare, comments on special provisions concerning means and methods of naval warfare, and explains the legal status of hospital ships including conditions of their protection.

United States Interests in the Law of the Sea Convention

1994 ◽  
Vol 88 (1) ◽  
pp. 167-178 ◽  
Author(s):  
Keyword(s):  
United States ◽  
United Nations ◽  
Dispute Settlement ◽  
Law Of The Sea ◽  
Basic Principles ◽  
Multilateral Negotiations ◽  
The Third ◽  
United Nations Convention ◽  
The United Nations ◽  
The Law

In 1982 the Third United Nations Conference on the Law of the Sea adopted a treaty, the United Nations Convention on the Law of the Sea, that succeeded in resolving the most fundamental questions of the law of the sea in accordance with three basic principles: 1.The rules of the law of the sea must fairly balance the respective interests of all states, notably the competing coastal and maritime interests, in a manner that is generally acceptable.2.Multilateral negotiations on the basis of consensus replace unilateral claims of right as the principal means for determining that balance.3.Compulsory dispute settlement mechanisms should be adopted to interpret, apply, and enforce the balance.

scholarly journals International law and the military use of unmanned maritime systems

2016 ◽  
Vol 98 (902) ◽  
pp. 567-592 ◽  
Author(s):  
Michael N. Schmitt ◽  
David S. Goddard
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Legal Status ◽  
State Of The Art ◽  
Law Of The Sea ◽  
Naval Warfare ◽  
The Law ◽  
The Military

AbstractUnmanned maritime systems (UMSs) comprise an important subcategory of unmanned military devices. While much of the normative debate concerning the use of unmanned aerial and land-based devices applies equally to those employed on or under water, UMS present unique challenges in understanding the application of existing law. This article summarizes the technological state of the art before considering, in turn, the legal status of UMSs, particularly under the UN Convention on the Law of the Sea (UNCLOS), and the regulation of their use under the law of naval warfare. It is not yet clear if UMSs enjoy status as ships under UNCLOS; even if they do, it is unlikely that they can be classified as warships. Nevertheless, their lawful use is not necessarily precluded in either peacetime or armed conflict.

The Law of War and Military Necessity

1953 ◽  
Vol 47 (2) ◽  
pp. 251-262 ◽  
Author(s):  
William Gerald Downey
Keyword(s):  
Brute Force ◽  
Law Of War ◽  
Military Necessity ◽  
Army Officers ◽  
Legal Restriction ◽  
The Law ◽  
The Military

To many international lawyers and army officers the terms “law of war” and “military necessity” are mutually incompatible. Many army officers consider the law of war as no more than a collection of pious platitudes, valueless, so they think, because it has no force and effect. Some international lawyers regard military necessity as the bête noire of international jurisprudence, destroying all legal restriction and allowinguncontrolled brute force to rage rampant over the battlefield or wherever the military have control.

scholarly journals The Common Law of War

2017 ◽  
Author(s):  
Jens David Ohlin
Keyword(s):  
Natural Law ◽  
Common Law ◽  
Armed Conflicts ◽  
Law Of War ◽  
Early American ◽  
American Law ◽  
The Common ◽  
The Law ◽  
Military Commissions ◽  
The Government

In recent litigation before U.S. federal courts, the government has argued that military commissions have jurisdiction to prosecute offenses against the "common law of war," which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Article challenges that definition by arguing that stray references to the term "common law of war"in historical materials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Article concludes that the "common law of war" referred to a branch of the law of nations that applied during internal armed conflicts, such as civil wars with non-state actors. This body of law was called "common," not because it was extended or elaborated by the common law method of judge-applied law, but rather because it was "common" to all mankind by virtue of natural law, and thus even applied to internal actors, such as rebel forces, who were not otherwise bound by international law as formal states were. By recapturing this lost definition of the common law of war, this Article casts some doubt on the U.S. government's position that military commissions have jurisdiction not only over international offenses, but also domestic violations of the law of war.Published: Jens David Ohlin, "The Common Law of War," 58 William & Mary Law Review (2016)

Sign in / Sign up

Export Citation Format

Share Document