Category Archives: Vol. 7 No. 3

Engaging the Big Issues | Thought-leaders from throughout the national security law community are featured in Vol. 7 No. 3: Herb Lin discusses classification, Spike Bowman reviews “Duty,” Michael Schmitt analyzes the “law of targeting,” and Norm Abrams addresses GITMO.

“On Target”: Precision & Balance in the Contemporary Law of Targeting

Schmitt and Widmar explore the law of targeting within international humanitarian law (IHL) and its application to international and non-international armed conflict. The article examines the “five elements” of a target operation, including the target, the weapon used, the execution of the attack, possible collateral damage and incidental injury, and location of the strike. The authors suggest that a better understanding of these norms can help international lawyers, policymakers, and operators avoid violations of international law by creating appropriate and well-known boundaries for targeting operations.

Of Guns & Grotius

Kellman discusses the breakthroughs in the development of explosive weapons since the 13th century. He then analyzes the evolution of theories on the international law of war as expounded by Grotius, Gentili, and Vatel. He argues that these scholars should have instead developed an international law of peace; he hypothesizes what the foundation of law would have looked like and presents a contemporary alternative vision to the law of war accordingly.

Addressing the Guantanamo “Legacy Problem”: Bringing Law-of-War Prolonged Military Detention & Criminal Prosecution into Closer Alignment

Abrams seeks to move the discussion on Guantanamo detainees forward by bringing law-of-war detention and criminal prosecution into closer alignment. The article analyzes the Obama Administration’s current approach of dealing with terrorists captured abroad and its preference for conducting criminal prosecutions whenever feasible. Abrams proposes several changes to the current system, including a decision-making framework for imposing further military detention after completion of the criminal process, which the administration has indicated is a possibility, and taking into account the criminal culpability of the detainee to impose a presumptive limit on indefinite detention, as ways to reform the two-track system and increase equality accordingly.