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Abstract: For more than fifty years following the 1949 revision of the Geneva Conventions, the articles that defined when the protections of these treaties came into force - Common Articles 2 and 3 - were understood as the exclusive standard for determining application of the laws of war. From these two articles emerged an "either/or" law-applicability paradigm: inter-state, or international, armed conflicts triggered the full corpus of the laws of war; intra-state, or internal, armed conflicts triggered the limited humanitarian protection reflected in the terms of Common Article 3. The military response to the terrorist attacks of September 11, 2001 threw this paradigm into disarray. These events exposed the gap in legal regulation of armed conflict. Although the U.S. Supreme Court decision in Hamdan v. Rumsfeld rejected the Bush administration's reliance on this "either/or" law-triggering paradigm as a basis to deny the applicability of the humane treatment mandate to captured al Qaeda personnel, that decision did not address regulation of hostilities. It was, instead, the conflict between Israel and Hezbollah that exposed the unacceptable consequences of this gap in legal regulation. While numerous voices from the international community invoked law of war as a basis to condemn both parties, there was virtually no consideration of the reality that, like the global war on terror, the conflict defied traditional categorization under the Common Article 2/3 paradigm. This Article asserts that the changing nature of warfare necessitates recognition of a hybrid category of "transnational armed conflict." This category is based on the de facto existence of armed conflict, regardless of geographic scope. The such armed conflicts trigger for application of the foundational principles of the laws of war, and how such application is derived from the history of regulating warfare, the purposes of the Geneva Conventions, and the pragmatic logic that animated the adoption of national military policies mandating application of these principles to all military operations.
International Law, Law of Armed Conflict, Law of War, National Security Law, Common Article 2, Common Article 3, Hamdan
Abstract: One of the most difficult legal questions generated by the U.S. proclaimed Global War on Terror has been determining when, if at all, the laws of war apply to military operations directed against nonstate actors? This question has produced a multitude of answers from scholars, government officials, military legal experts, and even the Supreme Court of the United States. The only aspect of this question that would likely generate consensus among these diverse viewpoints is that the difficulty of applying a state-centric law triggering paradigm to a dispute that defies state-centric classification has created tremendous legal uncertainty.
While from a lay perspective it may seem that resolving such a question is like "dancing on the head of a needle", the resolution has profound consequences for virtually every person involved or impacted by this "war". Since the time of the U.S. military response to the attacks of 9.11, the executive branch has struggled to articulate, and in many judicial challenges defend, how it could invoke the authorities of war without accepting the obligations of the law regulating war. Responding to such questions by application of the traditional law-triggering paradigm was like fitting a square peg into a round hole. Because of this, the time has come to develop a new approach to determining application of the laws of war that reconciles this disparity between authority and obligation related to the conduct of combat military operations. This will require adopting a new triggering "criteria". This trigger must reflect both the underlying purpose of the laws of war, but also the pragmatic realities of contemporary military operation.
It is the thesis of this article that a nation's assignment of status based ROE to its military should constitute the trigger requiring that nation and its military to apply the laws of war to that military operation. As nations prepare to use military force, national leaders dictate rules on how the military should use military force in the impending operation. These rules, broadly categorized as Rules of Engagement (ROE),fall into two general categories: conduct based ROE which allow military personnel to respond with force based on an individual's actions,11 and status based ROE which allow military personnel to use deadly force based only on an individual's membership in a designated organization, regardless of their conduct.
This article will initially discuss the historical underlying purpose of regulating conflict, and why that purpose supports an expansive application of the laws of war. It will then explain why the current law-triggering test is insufficient to respond to the realities of contemporary transnational conflict between states and non-state organizations. The article will then provide a comprehensive discussion of the concept of rules of engagement, to include how they evolved to compliment application of the laws of war. More importantly, the article will explain how in practice rules of engagement fall into two broad categories: status or conduct rules. The distinction between these two categories of ROE will, as this article demonstrates, offer a new analytical criterion for triggering the law which relies on a nation's invocation of status based ROE. The article will accordingly analyze how focus on the rules of engagement related to military operations offers perhaps the best de facto indicator of the line between conflict and non-conflict operations, and therefore is the best triggering criterion for legally mandated application of the fundamental principles of the laws of war. The article will conclude with a proposal for adoption of this new law triggering paradigm, and a discussion of some pragmatic policy concerns that will need to be carefully considered in any such adoption.
Law of War, Law of Armed Conflict, Geneva Conventions, War on Terror, Rules of Engagement, Humanitarian Law, Al Qaida
Abstract: This article asserts that counter-terror military operations should be regulated by fundamental principles of the law of armed conflict. It builds on prior articles asserting an emerging category of transnational armed conflict: conflict between states and non-state groups outside the territory of the state. These prior articles have explained why such a category of armed conflict must be recognized and how the nature of the authority invoked by a state in the conduct of such operations reveals the existence of such armed conflicts. This article focuses on the key law of armed conflict principles that should apply in such situations to regulate the application of combat power and the treatment of non-combatants. It acknowledges that this is only the first step in developing a body of regulatory norms applicable to such armed conflicts, but also points out the correlation between this proposed process and the development of the law applicable to internal armed conflicts.
International law, the law of armed conflict, terrorism, extraterritorial law enforcement, national security law, military operations, the law of war, al Qaeda
Abstract: In the approximate four years since the United States initiated military combat operations under the rubric of the Global War on Terror, the most highly visible legal issues have been the legality of the use of force and the treatment of detained opposition personnel. However, during this same period, U.S. planners and government legal advisers have struggled with another less sensational issue: the legally permissible role of civilians supporting these operations. While not a new issue, the unprecedented level of reliance on such civilian support, coupled with the ever-increasing technological sophistication of the contemporary battlefield, has pushed these civilians ever closer to performing roles historically reserved for uniformed personnel. Unfortunately, the rapidly evolving and ever increasing nature of civilian support has not been matched by any significant update to the decisional criteria for determining the legally permissible roles for such civilians. This reality has led to tremendous uncertainty at all levels of command. This is particular true during the current era of ever increasing pressure on operational commanders to maximize such civilian support in order to reduce demands on the uniformed force and increase the ¿tooth to tail¿ ratio. There are several detrimental consequences that flow from this disparity. First, subordinate commands are left to ponder where the line of compliance is located. Second, abdicating the responsibility for determining what is or is not legal increases the possibility of disparate resolutions of this issue among different commands. Third, the lack of uniform decisional criteria disables the ability of strategic planning and force development because it is impossible to make any meaningful assessment of the legal constraints on civilianization. Finally, there is no effective standard available for the legal advisers who are called upon to recommend resolution of civilianization issues at the command levels responsible for compliance with this policy mandate.
Throughout this era of increasing civilianization, reliance on the direct participation standard derived from the law of armed conflict has served as the primary criteria for defining permissible civilian support functions. However, this standard is no longer sufficiently effective to address this complex issue. While it is undoubtedly true that civilian support personnel are prohibited from performing any function that can legitimately be deemed to amount to direct participation in hostilities, this prohibition is not, as previously assumed, derived exclusively from the direct participation provisions of the law of armed conflict. Instead, it is derived from a much more complex interrelationship between the principle of distinction, the link between genuine military command authority and respect for the law of armed conflict, and an equitable synergy between the scope of command responsibility and the scope of command authority. This article will analyze the direct participation standard, and illustrate why it is no longer sufficient, either in scope or purpose, to provide a solution to this complex issue. The article will then propose a new test - the functional discretion test. The focus of this test will be the discretion associated with each function proposed for civilianization. In application, this test will assess the risk of law of armed conflict violation associated with the performance of each task. If the discretion associated with a task involves genuine risk of a violation of this law, it must be reserved for members of the armed forces. The article will then illustrate why this test is both more comprehensive than the direct participation standard, and more feasible in application. The article will also offer comparative illustrations for this proposition.
The article will conclude with a proposal that the Department of Defense adopt this new standard, which will provide the foundation for a coding system for all functions associated with military operations. This will permit subordinate commands to effectively plan for the use of civilian support with a high degree of confidence that such use will be in compliance with law of armed conflict obligations and will carry minimal risk of exposing commanders to liability for the conduct of personnel over whom they lack proscriptive disciplinary authority.
Law of Armed Conflict, Law of War, Humanitarian Law, Civilans on the Battlefield
Abstract: In response to the terror attacks of September 11th, 2001, the United States launched Operation Enduring Freedom to disable al Qaeda capabilities in Afghanistan and to oust the Taliban regime that provided safe haven to al Qaeda. This military operation triggered a flurry of debate over the proper legal classification for this armed conflict. Although the United States initially asserted the conflict was not international in character because Afghanistan was a failed state, it ultimately reversed this position and acknowledged that at least with respect to Taliban forces it was engaged in an international armed conflict. However, the classification of the conflict against al Qaeda in Afghanistan remained unclear. While most experts did then and continue to assert that operations directed against al Qaeda are subsumed within the broader armed conflict against Afghanistan, the United States never expressly adopted this proposition. Instead, the decisions related to the status of captured al Qaeda personnel indicated that the United States considered the conflict between it an al Qaeda distinct from the conflict with the Taliban.
This article will consider the viability of this bifurcated armed conflict approach to operations in Afghanistan, and will challenge the assumption that the geographic continuity of military operations against the Taliban and al Qaeda in Afghanistan mandate that these armed conflicts be treated as unitary. This challenge will be based on two primary arguments. First, that it is conceptually possible for the United States to engage in a distinct non-international armed conflict with al Qaeda. Second, that the spirit and purpose of the "associated militia" provisions of the law of armed conflict do not automatically justify a unitary conflict conclusion for al Qaeda forces in Afghanistan simply because operations of these forces were geographically and at times tactically contiguous with operations of Taliban forces.
The article will conclude by considering why characterizing military operations directed against transnational terrorist groups like al Qaeda as armed conflict is a more legitimate and pragmatic approach to the legal regulation of such operations than denying such operations are armed conflicts and instead characterizing them as extraterritorial law enforcement operations.
The law of armed conflict, the law of war, international law, Afghanistan, al Qaeda, Taliban, armed conflict, terrorism, extraterritorial law enforcement
Abstract: In its recent decision of Boumediene v. Bush, the Supreme Court invalidated the collective effort of the President and Congress to limit the ability of "enemy combatants" held by the United States to challenge the legality of their detention in Article III courts. While the majority opinion focused primarily on the scope of the constitutional habeas guarantee, it is impossible to ignore the reality that the issue that lay just below the surface was the legitimacy of subjecting individuals to "generational" detention based on an expansively applied definition of the term "enemy combatant." Although the Court had four years earlier held that preventive detention based on such a designation was conceptually justified as a "fundamental and accepted incident of war", it had also suggested that should the scope of that definition become disconnected from the customary concept of an enemy battlefield belligerent, this justification might erode. By providing Guantanamo detainees with the long demanded opportunity to obtain judicial review of the legality of their detention, the Court has set in motion a process that will almost inevitably force the government to defend the scope of the enemy combatant definition it has relied on to justify the preventive detention of individuals who do not fall into the traditional realm of a battlefield belligerent. In so doing, the Court has set in motion a process that will finally bring to a head the legitimacy of applying detention authority derived from the long established customary law of armed conflict in a context context characterized by the hyperbolic designation of a "Global War." Because the government will almost certainly now be forced to demonstrate how the scope of the enemy combatant definition relied on by the Combatant Status Review Tribunal's in Guantanamo remains consistent with the law of armed conflict itself, the Boumediene opinion is not a catastrophic blow to the government's authority to detain terrorists who participate in hostilities against the United States. Instead, it has provided the opportunity and impetus for the government to finally reconcile it's assertion of detention authority with the law upon which it purports to apply - the law of armed conflict.
Boumediene, Combatant Status Review Tribunal, Enemy Combatant, War on Terror, the Law of War, the Law of Armed Conflict, Habeas Corpus, Supreme Court
Abstract: Determining the law of war obligations applicable to United States forces engaged in combat operations associated with the Global War on Terror is a complex process. This process involves not only interpretation of the meaning of specific law of war provisions, but also a complex analysis of how treaty law, customary international law, and national policy converge to define what provisions of the law apply to a given operation. A classic example of the complexity of this equation involves application of the law of war provisions related to the protection of cultural property to sniper operations in Iraq. Using this example, this article will analyze how these various considerations influence the determination of the nature and extent of applicability of various law of war provisions, to include the important distinction between legally mandated versus policy based compliance.
Law of Armed Conflict, Law of War, Humanitarian Law, Protection of Cultural Property, Department of Defense, Iraq
Abstract: One of the most commonly asserted justifications for denying habeas review to individuals detained by the armed forces during the Global War on Terror has been that such review is both illogical and inconsistent with the tradition of warfare because prisoners of war (POWs) have never been provided analogous access to judicial review. This view reflects a flawed assumption that the necessity for habeas access is equal for both POWs and other individuals detained as a result of their participation in armed conflict - individuals excluded from the benefits of the Geneva Convention Relative to the Treatment of Prisoners of War. Accordingly, it is not only unjustified, but distorts the underlying questions at issue in the habeas debate. This article challenges the validity of this analogy by explaining this internal compliance mechanism of the Prisoner of War Convention, and exposing how designation as an "enemy combatant" deprives captured personnel of any legal remedy for arbitrary decisions by the detaining power, mainly the United States.
Enemy Combatant, Habeas Corpus, Detention, Prisoner of War, Geneva Convention, the Law of War
Abstract: The United States air campaign to compel Serbia to halt military ethnic cleansing in Kosovo was the first combat operation conducted for more than sixty days without express congressional authorization. The decision by President Clinton to commit the armed forces of the United States to combat action as part of the NATO led campaign without seeking congressional authorization triggered a judicial challenge by a number of legislators led by Representative Tom Campbell of California. Representative Campbell brought the challenge based on his assertion that the President was acting in direct violation of both the Constitution and the War Powers Resolution. Unlike similar challenges to prior presidential military commitments, the duration of the combat operations against Serbia precluded any implied sixty day clock theory of compliance with the Resolution. The challenge was ultimately dismissed on justiciability grounds by the United States Court of Appeals for the District of Columbia. This article analyzes the nature of the military operations and the basis for the dismissal, and asserts that the true effect of the court's decision was to effectively nullify the significance of the War Powers Resolution as a barrier to presidential war making initiatives. In so doing, the court confirmed the continuing validity of longstanding separation of power jurisprudence related to war making decisions.
Kosovo, War Powers Resolution, UN Charter, Use of Force, War Powers, Constitutional Law, NATO, Serbia, Security Council
Abstract: Of the many controversial legal questions generated by the passage of the Military Commission Act of 2006, perhaps the most fundamental is that of jurisdiction. This question has lingered beneath the surface of the legitimacy of the use of these tribunals to try alleged al Qaeda operatives since they were first created by President Bush. Unfortunately - or for advocates of the use of these tribunals perhaps fortunately - the seminal challenge to the validity of the Military Commission, Hamdan v. Rumsfeld, was resolved in favor of the Petitioner without reaching this underlying question. However, the rapid response by Congress to provide a statutory foundation for resurrecting this means to try detainees associated with the Global War on Terror once again raises this difficult but critical question related to the legitimacy of such trials. This Essay will briefly address why this author believes the scope of jurisdiction established by the MCA exceeds the bounds of legitimate use of such tribunals.
Military Commissions, Military Tribunals, UCMJ, Detainees, Military Commission Act, Law of War, Law of Armed Conflict, Terrorism, International Law
Abstract: Recent events related to the planning and execution of the war in Iraq, most notably the perceived 2003 "firing" of then Army Chief of Staff Eric Shinseki, have raised concerns over the effect of Executive Branch dominance of the military and how that dominance impacts the ability of Congress to obtain timely and important information. Such actions, perceived to discourage members of the military from providing candid views to Congress when they differ with the Administration, even if implied instead of express, strike at the very core of the founder's intent to balance military power within the national government. The military should be viewed as a national agency rather than an Executive Agency, with responsibilities to both the Executive and Legislative Branches, including providing clear and complete information to Congress. This article discusses the unique nature of the military and why it should not be considered an Executive Agency. Through historical constitutional analysis, the article argues that for Congress to perform its "necessary and proper" role, it must be fully informed on military issues within its area of competence and responsibility. The article then suggests the Congress is not currently receiving complete military information and proposes several methods to remedy this critical deficit.
National Security Law, Civil-Military Relationship, Constitutional Law, Presidential Power
Abstract: This comment analyzes the decision by the District of Columbia Circuit Court of Appeals in the case of Campbell v. Clinton. It summarizes the rationale for the dismissal of this legislator challenge to the President's decision to order combat operations against Serbia, and analyzes how this decision ratifies the "implied consent" theory of congressional participation in war powers decisions.
Clinton, War powers, War power
Abstract: The decision by President Bush to create a military commission to try captured members of Al Qaeda for alleged crimes committed during the Global War on Terror has been the subject of extensive scholarly analysis and criticism. This article critiques the proposed use of the military commission for the prosecution of violations of the law of war through the lens of military law and the law of war. The article demonstrates how military tribunals serve the dual interests of adjudicating allegations of such offenses and contributing to compliance with the laws of war; and why the legitimacy of such tribunals requires establishing application of the laws of war to the subjects of prosecution and complying with the minimal standards of fairness established by the laws of war for such adjudications. The article concludes that, in theory, use of military commissions to adjudicate alleged violations of the laws of war is a legitimate exercise of presidential authority, and that the military component of the War on Terror does provide a valid jurisdictional predicate for the invocation of this authority derived from the law of war. However, the article also concludes that both the nature of the available charges and the procedural construct related to the currently proposed military commission render the pending process inconsistent with the obligations of imposed by the laws of war.
Military Commission, military tribunal, law of war, humanitarian law, presidential power, war powers, terrorism, national security law
Abstract: Since the 1990's, the numbers of civilian contractors deployed in support of U.S. military operations (civilian augmentees) has exploded. This privatization trend has reached historically unprecedented levels in Iraq, where most estimates indicate there are today more civilian contractors deployed than members of the armed forces. Beginning in the late 1990's, this trend generated serious concerns over the perceived immunity of these civilian support personnel from disciplinary sanctions. In response, and because of a decades old decision effectively excluding civilians from the jurisdiction of military courts, Congress responded by passing Federal criminal statutes extending U.S. criminal law to reach contractors. However, the exponential role of civilians in Iraq, and the ineffective implementation of these criminal statutes seemed to reinforce the perception that civilian augmentees enjoyed de facto immunity for their misconduct. Congress responded in 2006 with an amendment to the Uniform Code of Military Justice effectively resurrecting military criminal jurisdiction over these civilians. Ostensibly unexpected by the Department of Defense, this amendment raises potentially serious constitutional questions, and has yet to be implemented. This article analyzes the genesis of this amendment, and why there is as much uncertainty today regarding the constitutional validity of subjecting civilians to military criminal jurisdiction as existed thirty years ago when the predecessor provision of the UCMJ was struck down by the highest military appellate court. While acknowledging the legitimate necessity of subjecting civilian augmentees to disciplinary authority, the article argues that the recent amendment is unjustifiably over-broad. The article then proposes an alternative amendment that would provide a more balanced means to accommodate this legitimate military need. This amendment would provide military commanders a non-criminal disciplinary tool to apply to civilian augmentees by subjecting them to the limited jurisdiction of summary courts-martial, best understood as a quasi-judicial forum that does not result in a criminal conviction. Such an approach would enable military commanders to respond to a wide array of minor disciplinary infractions while reserving more serious misconduct to the jurisdiction of Federal courts.
national security, military law, UCMJ, law of war, contractors, military jurisdiction
Abstract: This article critiques the current military legal education paradigm. It asserts that one lesson from the Iraq War is that there is no longer sufficient justification to disperse law of war education for military attorneys among the different service Judge Advocate General's (JAG) schools. Instead, the Department of Defense should consolidate the substantial expertise that exists throughout the military legal community into one center of excellence: a Joint Service Law of War Academy. This article asserts that such a center of excellence is essential to fully prepare military legal advisors for the demands of the modern battlefield.
law of war, law of armed conflict, humanitarian law, military law, JAG
Abstract: This article addresses the limited and distinct function of the Combatant Status Review Tribunal's established by the Department of Defense to review enemy combatant designations. It explains how the predicate legal determinations made by the United States with regard to the conflict in Afghanistan and the conflict with al Qaeda prevent these tribunals from considering whether individuals captured by the United States qualify as prisoners of war. This does not, however, render the function of these review tribunals illegitimate.
international law, national security, the law of war, detainees, global war on terror, prisoners of war
Abstract: This article analyzes the recent developments in international criminal jurisprudence establishing individual criminal responsibility for violations of the laws of war during non-international armed conflict. The article then analyzes the Uniform Code of Military Justice grants includes within the jurisdiction of the General Court-Martial the power to try any person who is subject trial by a military court for violation of the laws of war. The article demonstrates the distinction between this source of jurisdiction, which is based on violation of international law, and the traditional exercise of military jurisdiction, which is based on violation of the punitive articles of the code itself and restricted to individuals expressly subject to these criminal proscriptions. The article then asserts how the extension of the doctrine of individual criminal responsibility to the realm of non-international armed conflicts, when coupled with this statutory grant of jurisdiction, subjects any person who violates this law to trial by a United States General Court-Martial.
Court-Martial, International Law, Humanitarian, Internal Armed Conflicts
Abstract: One significant aspect of the recent decision in Hamdan v. Rumsfeld was the applicability of the fundamentally fair trial requirement derived from the laws of war. A majority of the Court determined that the procedures established for the military commission violated the "regularly constituted tribunal" requirement of Common Article 3 of the Four Geneva Conventions of 1949. In a more controversial portion of the decision, a plurality of the Court relied on the procedural requirements established by Article 75 of Protocol I Additional to the Four Geneva Conventions to bolster this conclusion, even though President Reagan rejected that treaty as "fundamentally flawed." Ironically, an identical provision exists in Protocol II Additional to the Four Geneva Conventions, a treaty that both Presidents Reagan and Clinton have sought Senate advice and consent in order to ratify. Although textually inapplicable to armed conflicts occurring outside the territory of a contracting party, the United States opposition this scope limitation, coupled with the fact that unlike Additional Protocol I, this treaty was specifically intended to regulate non-international armed conflicts, makes this treaty an equally if not more compelling source of authority in support of the Court's holding. This article will briefly explore the semiliterate between the fundamental fairness provisions of Additional Protocols I and II, and the United States position related to these treaties.
Law of War, International Law, National Security Law
Abstract: This article surveys the history of federal jurisprudence related to war making decisions. In so doing, it seeks to refute the perception that such decisions are conclusively beyond the realm of judicial review as a result of the political question doctrine of judicial restraint. Instead, the survey of these decisions demonstrates that the more relevant doctrine is that of ripeness. Accordingly, the article asserts that in the appropriate circumstances, the courts could intervene in a war powers dispute between the two political branches. However, such intervention would only be possible in response to express congressional opposition to a presidential war making decision, and only then if the President were unable to offer a legitimate theory of defensive necessity.
President, War Powers
Abstract: The Supreme Court's decision in Hamdan v. Rumsfeld triggered an avalanche of legal commentary, criticism, and debate. What is somewhat surprising, however, is the relative paucity of analysis regarding the impact of this opinion on the planning and execution of military operations, a subject at the heart of the challenge brought by Hamdan. From a military perspective, this opinion provided an important reaffirmation of something military operational lawyers had always known: treating captured enemies humanely is an essential component of preserving the demarcation line between disciplined military operations and battlefield anarchy. In rejecting the selective invocation of the laws of war, the Supreme Court seemed to understand and confirm that this area of law reflects a delicate balance between authority and obligation, a principle reflected in longstanding Department of Defense policies. This brief essay will address this aspect of the opinion, and how the Court's impetus for cooperative military policy ultimately strengthened the had of the government.
Law of War, law of armed conflict, humanitarian law, internaitonal law, war on terror, terrorism, military commissions, war crimes, seperation of powers, national security
Abstract: Using the illustration of several U.S. Army soldiers who were captured by the Serbian armed forces along the Serbian/Macedonian border during Operation Allied Force (the air campaign by NATO against Serbia), this article analyzes the applicability of the Geneva Convention for the Protection of Prisoners of War to contemporary military operations. The article demonstrates that how the determination of "who is and is not" a prisoner of war requires compliance with the de facto analytical framework established by the Convention. The case of General Manuel Noriega is used as an example of the invalidity of policy manipulation of this framework. The article then summarizes the fundamental protections that must be afforded to any individual qualifying for status as a prisoner of war.
Abstract: Lawyers often refer to criminal litigation as a war between competing adversaries. Yet, one of the central tenets of the law of war – the doctrine of command responsibility – has not been applied to criminal litigation. Under the doctrine of command responsibility, military commanders are held responsible for the misconduct of their subordinates that they knew or should have known would occur. The purpose of the command responsibility doctrine is to ensure that supervisors develop an atmosphere of compliance by training subordinates to avoid misconduct. This article applies the doctrine of command responsibility to civilian prosecutors holding supervisory positions. We argue that instances of prosecutorial misconduct can be reduced by imputing liability to supervising prosecutors who fail to create a culture of ethical compliance and therefore should have known that misconduct could occur.
prosecutor, criminal law, criminal ethics, prosecutorial ethics, legal ethics, command responsiblity, law of war, ABA model rules, professional responsibility
Abstract: In 1973, a supermajority of Congress overcame President Nixon’s veto to enact the War Powers Resolution. That law was intended to restore the Founder’s vision of cooperative war-making authority between the two political branches. Since that time, two areas of uncertainty have plagued the efficacy of the law: the arguable intrusion into the exclusive war-making authority of the President; and the uncertainty as to what events trigger the law’s obligations. In an effort to cure these defects, a group of experts recently proposed adoption of a substitute law: the War Powers Consultation Act of 2009. This proposed successor statute shifts the focus of statutorily mandated inter-branch war powers cooperation from the express authorization emphasis of the War Powers Resolution to notification and cooperation. While this shift in emphasis is both logical and more aligned with historical constitutional practice than the War Powers Resolution, the proposal still struggles to define an effective trigger for this notification and cooperation mandate. This article will review how the War Powers Consultation Act seeks to cure the defects of the War Powers Resolution and impose a more effective cooperative war-making relationship between the two political branches. It will then propose a critical improvement: a more effective notification and cooperation trigger to implement this purpose, one that is derived from the nature of the military operations this cooperative decision-making mandate is intended to enhance. The article will explain how linking the congressional notification mandate of the proposed law to operational rules of engagement will provide the most effective pragmatic notification trigger, mitigate the risk of interpretive avoidance of the law’s mandate, and reconcile the scope of the cooperative war-making obligation with constitutional authority.
national security law, War Powers, War Powers Resolution, War Powers Consultation Act, rules of engagement, separation of powers, executive power
Abstract: The ethical challenges confronting Military Commission prosecutors is indeed unique. Unlike the 'typical' stress associated with the prosecutors obligation to 'do justice', these prosecutors face a dilemma far more complex than the question of how far to push an evidentiary rule or whether to charge an offense unsupported by probable cause. Instead, they confront the ethical dilemma created by a potential conflict between the legitimacy of two conflicting sources of law: domestic and international. On a daily basis, they must reconcile the scope of criminal liability established by Congress in the Military Commissions Act with the scope of criminality derived from the law Congress purported to codify: the law of armed conflict. The potential delta between these two sources of law creates for them an ethical dilemma of massive proportion: What is the prosecutor’s duty when the law she is told to implement is itself of suspect legality? This article will explore the source of this dilemma, and propose that it is the law of armed conflict itself that provides the most effective test for determining when executing the law may itself be inconsistent with the ultimate obligation to 'do justice.'
military commissions, international law, prosecutorial ethics, the Law of Armed Conflict, humanitarian law, national security law, war crimes
Abstract: One of the most complex contemporary debates related to the regulation of armed conflict is the relationship between international humanitarian law (or the law of armed conflict) and international human rights law. Since human rights experts first began advocating for the complimentary application of these two bodies of law, there has been a steady march of human rights application into an area formerly subject to the exclusive law of armed conflict regulation. While the legal aspects of this debate are both complex and fascinating, like all areas of conflict regulation the outcome must ultimately produce guidelines that can be translated into an effective operational framework for war-fighters. In an era of an already complex and often confused battle space, there can be little tolerance for adding complexity and confusion to the rules that war-fighters must apply in the execution of their missions. Instead, clarity is essential to aid them in navigating this complexity.
This article will explore this debate from a military operational perspective. It asserts the invalidity of extreme views in this complementarity debate, and that the inevitable invocation of human rights obligations in the context of armed conflict necessitates a careful assessment of where symmetry between these two sources of law is operationally logical and where that logic dissipates. While acknowledging a legitimate role for human rights norms in relation to the treatment of noncombatants and subdued opposition personnel, I argue that these norms cannot be permitted to influence the legal framework that regulates the application of combat power against operational opponents. Preventing this intrusion is essential to balance the interest of protecting human rights with the fundamental purpose of armed hostilities – securing the prompt and efficient submission of an opponent. Perhaps the most critical premise of this article is that failing to recognize the existence of this boundary will produce a distortion of this historic authority/restraint balance at the core of the law of armed conflict – a distortion that will inevitably be perceived as operationally illogical by armed forces thereby risking the credibility of both bodies of law.
Humanitarian Law, Human Rights, Armed Conflict, Law of War, Law of Armed Conflict, Military Law, International Law
Abstract: This article discusses critical operational, legal, and policy considerations related to the tactical military interrogation process. It proposes that a comprehensive understanding of these considerations is essential for the effective military legal oversight of interrogation operations.
law of war, law of armed conflict, military law, interrogation, operational law
Abstract: this article analyzes relevant Department of Defense and Department of the Army policies and directives related to the making of internatioanl agreements by military commands. It highlights critical aspects of this process to facilitate oversight by military lawyers.
international agreements, military agreements, military law, JAG, operational law
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