In recent litigation before the federal courts, the U.S. government has argued that military commissions have jurisdiction to prosecute offenses against the “common law of war,” which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Essay challenges that definition, by arguing that stray references to the term “common law of war” in historical materials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Essay concludes that the “common law of war” meant something far different: a branch of the law of nations that applied during internal armed conflicts, such as civil wars with non-state actors. This body of law was called “common,” not because it was extended or elaborated by the common law method of judged-applied law, but rather because it was “common” to all mankind by virtue of natural law, and thus applied even to internal actors, such as rebel forces, who were not otherwise bound by international law as formal states. By recapturing this lost definition of the “common law of war,” this Essay casts some doubt on the U.S. government position that military commissions have jurisdiction, not only over international offenses, but also domestic violations of the law of war.
Monday, April 18, 2016
Ohlin: The Common Law of War
Jens David Ohlin (Cornell Univ. - Law) has posted The Common Law of War (William & Mary Law Review, forthcoming). Here's the abstract: