Volume 10

Issue 1

Yemen: Is the U.S. Breaking the Law?

by Oona Hathaway, Aaron Haviland, Srinath Reddy Kethireddy and Alyssa T. Yamamoto

The almost four-year long brutal civil war in Yemen between the central government of President Abdu Rabbu Mansour Hadi and a Shi’a Islamic movement called the Houthis shows no signs of slowing. A coalition of countries led by Saudi Arabia has provided extensive support to President Hadi, including by conducting an ongoing military campaign against the Houthis. In the course of this military campaign, the Saudi-led coalition has been accused of violating international humanitarian law by killing hundreds of civilians through airstrikes, as well as contributing to a humanitarian disaster by imposing a blockade. Though not a member of the Saudi-led coalition, the United States has provided invaluable support to the coalition’s campaign through weapons sales, mid-air refueling of coalition aircraft, targeting assistance, and other training and logistical support. This Article surveys and analyzes a variety of domestic and international law that may apply to the U.S. role in Yemen and finds that continued U.S. support for the Saudi-led coalition in Yemen may violate several domestic and international laws. The article concludes by considering whether and how the laws might be enforced and U.S. legal violations brought to an end.

The Return of Gunboat Diplomacy: How the West has Undermined the Ban on the Use of Force

by Patrick C. R. Terry

This article outlines how the West’s manifold attempts at reforming the jus ad bellum, by permitting an increasing number of exceptions to the ban on the use of force, has led to a serious weakening of the structures on which the conduct of international affairs has rested since the end of WWII. The belief that the invocation of novel justifications for resorting to the use of force could be restricted to the West and its close allies has proved unfounded as many states from Russia via the Arab peninsula to Turkey are now also laying claim to the right to use force in an increasing number of cases. Thus what was once heralded as a modernizing effort actually has led to an erosion of the ban on the use of force.

Uncertainty in the Law of Targeting: Towards a Cognitive Framework

by Michael N. Schmitt and Major Michael Schauss

This article offers a cognitive framework for thinking about the confluence of uncertainty and the IHL rules governing targeting. In abstract discussions, the tendency has been to understand the requisite level of certainty for engaging a target as a particular threshold, that is, as “certain enough” to satisfy the requirement to confirm a target as a military objective, qualify harm as collateral damage or military advantage that must be factored into the proportionality calculation, or require the taking of feasible precautions in attack to minimize harm to civilians and civilian objects. In our view, this approach neither reflects targeting practice, nor adequately operationalizes the balance between humanitarian considerations and military necessity that all “conduct of hostilities” rules must reflect. We suggest that the issue is more nuanced, that dealing with uncertainty involves a multifaceted situational assessment when planning, approving or executing attacks. The article is our attempt to widen the aperture of discussion about battlefield ambiguity and doubt.

War Powers far from a Hot Battlefield: Checks and Balances on Presidential War-Making through Individual and Unit Self-Defense

by E. L. Gaston

While soldiers, marines, and their surrounding units have long been assumed to have a right to defend themselves, reliance on this right to individual and unit self-defense has expanded significantly since 2001. It has been applied to uses of force across a range of conflict situations, from being regularly used to counter ambiguous and asymmetric threats in Iraq and Afghanistan, to justifying drone strikes and low-footprint special forces engagements far from a “hot battlefield.” In the latter situations, though, the legal remit to use force is more controversial, and use of individual and unit self-defense to justify significant strikes or engagement in hostilities have raised legal questions. This article will explore the domestic and international legal bases for these extended self-defense strikes and operations.

Fiduciary Duty, Honor, Country: Legislating a Theory of Agency into Strategic Civil-Military Relations

by Major Dan Maurer

Dissent, annoyance, mutual frustration, misplaced trust, breaches of confidentiality, unwelcome candor, and differing senses of obligation, loyalty, and service are all recurring themes in the day-to-day theater that is the civil-military relationship between American political and military strategic elites. The health of these relationships matters significantly for the fitness of the outcomes for which these parties are accountable. Wars (whether and how to fight them), budgets (how much to spend, on what, and for whom), force structure (how to organize the means of national defense), and personnel (who to recruit and retain, and who—if anyone—should be excluded from service) are the critical issues, and these parties often disagree over these fundamental questions. The efficiency, prioritization, thoughtfulness, and public explanations of these issues will also be turbulent in the wake of unsteady, rocky strategic civil-military relationships. Congress, no less than the Executive Branch and military leaders, has a stake and a say in these relationships.