scholarly journals Why a President Cannot Authorize the Military to Violate (Most of) the Law of War

2017 ◽  
Author(s):  
John C. Dehn
Keyword(s):  
Law Of War ◽  
The Law ◽  
The Military

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.

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 Averting Curses in the Law of War (Deuteronomy 20)

2020 ◽  
Vol 132 (2) ◽  
pp. 209-223
Author(s):  
Laura Quick
Keyword(s):  
Near East ◽  
Ancient Near East ◽  
Law Of War ◽  
The Social ◽  
Sitz Im Leben ◽  
The Law ◽  
Ancient Warfare ◽  
The Military

AbstractThis essay explores the military exemption of Deut 20:5–7 in light of the futility curse in Deut 28:30. By uncovering the social and ritual contexts of the futility curse, I argue that Deut 20:5–7 can be productively understood as a warfare ritual against the curse. I explore the ritual dimensions of Deut 20:5–7 in light of rituals for avoiding curses and maledictions from the ancient Near East, arguing that the original Sitz im Leben of these verses can be found in a pre-war ritual responding to the hegemonic aims of enemies as this crystallized in the inscriptional and ritual contexts of ancient warfare.

Defensive Deterrence

2018 ◽  
Author(s):  
Yishai Beer
Keyword(s):  
International Law ◽  
Practical Problem ◽  
Strategic Thinking ◽  
National Defense ◽  
Global Security ◽  
Defense Strategy ◽  
Essential Component ◽  
The Law ◽  
Compliance With The Law ◽  
The Military

This chapter deals with the lack of coherency between strategic reality—which uses deterrence as an essential strategic tool—and the prevailing law. Deterrence is a tool for enforcing compliance with the law; it promotes the containment of potential conflicts. It is pivotal in strategic thinking and, in many cases, an essential component of the national-defense strategy of law-abiding states. But although deterrence is central to the management of global security, in current international law deterrence considerations are perceived with suspicion and mistrust. It is perceived as an unlawful punitive measure. The lack of consensus on lawful deterrence, however, might create a vacuum that invites aggressors and transgressors. This chapter offers normative suggestions for introducing defensive deterrence and overcoming the practical problem of putting it into practice within the current contours of the law, by using the military professionalism criterion.

Military Necessity and the Cultures of Military Law

2013 ◽  
Vol 26 (2) ◽  
pp. 315-349 ◽  
Author(s):  
DAVID LUBAN
Keyword(s):  
Human Rights ◽  
Human Dignity ◽  
Legal Regulation ◽  
Systematic Analysis ◽  
Law Of War ◽  
Military Necessity ◽  
Starting Point ◽  
Military Law ◽  
Interpretive Communities ◽  
The Military

AbstractMilitary and humanitarian lawyers approach the laws of war in different ways. For military lawyers, the starting point is military necessity, and the reigning assumption is that legal regulation of war must accommodate military necessity. For humanitarian lawyers, the starting point is human dignity and human rights. The result is two interpretive communities that systematically disagree not only over the meaning of particular law-of-war norms, but also over the sources and methods of law that could be used to resolve the disagreements. That raises the question whether military lawyers’ advice should acknowledge any validity to the contrary views of the ‘humanitarian’ community. The article offers a systematic analysis of the concept of military necessity, showing that civilian interests must figure in assessing military necessity itself. Even on its own terms, the military version of the law of war should seek to accommodate the civilian perspectives featured in the humanitarian version.

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