Conquering Peace: Military Commissions as a Lawfare Strategy in the Mexican War
affiliation not provided to SSRN
American Journal of Criminal Law, Vol. 35, No. 2, pp. 201-240, 2008
The War on Terror has provoked much discussion on the proper role of law in war. A considerable amount of this debate has centered on the idea of lawfare: the use of international law as a weapon of war - usually by weaker states or unconventional combatants, and usually to America’s disadvantage. This Note examines this theory of lawfare through our experience with military tribunals in the Mexican War; it provides the most extensive study to date of the use of military commissions and councils of war during that conflict. Other articles have surveyed the history of American military tribunals from the Revolutionary period to the present, primarily focusing on the balance of power between the legislative and executive branches over military tribunals in the absence of specific legislation. Few, however, have devoted any significant attention to the Mexican War, and none have thoroughly explored how the Mexican War tribunals functioned as part of the American occupation strategy. This Note argues that General Scott used military tribunals as part of a counterinsurgency strategy, developing innovations tailored to the needs of his occupation yet exceeding the requirements of international law, and that this strategy worked to hamper public support for and decrease the effectiveness of unconventional enemy combatants. This Note is also the first to relate this history to the idea of lawfare, using it to challenge the common perception that lawfare is a strategy of America’s enemies, by showing how Scott used lawfare to American advantage in the occupation of Mexico.
Number of Pages in PDF File: 40
Keywords: lawfare, military commission, council of war, court martial, military tribunal, Mexican War, UCMJ, military justice, guerrilla, counterinsurgency, judge advocate, international law, Guantanamo, War on Terror, Lieber Code, Geneva Conventions, enemy combatant, occupation, Winfield ScottAccepted Paper Series
Date posted: October 5, 2009
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