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Scientific Evidence in Courts-Martial: From the General Acceptance Standard to the Relevancy Approach
In courts-martial today, the use of a wide variety of scientific evidence has become routine. Counsel for either side may offer fingerprint or blood type evidence to indicate identity. Trial counsel use chemical analysis of blood or urine to prove recent drug use or intoxication. Behavioral analysis of victims is presented routinely as evidence of rape trauma or battered child syndrome. Truthfulness, or the lack thereof, theoretically can be demonstrated by polygraph examinations. The use of other newer types of scientific evidence someday may become just as routine. Apparently, scientists can now provide identity to nearly a mathematical certainty using DNA analysis. The use of radioimmunoassay analysis of hair suggests that drug usage can be detected for months, even years, after ingestion. As science advances, ever more creative means of producing evidence undoubtedly will be developed. In recent years the standard for the admissibility of scientific evidence in courts-martial has undergone significant change. This change can be described as the replacement of the general acceptance standard with the relevancy approach. The purpose of this article is to examine the development and acceptance of the relevancy approach in the federal and military courts, analyze its meaning, and attempt to provide a working model for its application in courts-martial. However, before turning to that approach an understanding of its predecessor, the general acceptance standard, is necessary. The underlying rationale for the general acceptance theory remains a consideration under the relevancy approach
Judge Advocate General's Legal Center and School (United States. Army)
Schmitt, Michael N.; Hatfield, Steven Arnold
1990
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Law of the Sea and Naval Operations
Section I is a general survey of the law of the sea. As will be seen, the world's waters are subdivided into various legal regimes, each with differing obligations and rights for those who traverse them. Given the multiple regimes, the judge advocate must be able to answer two very basic questions maritime operators inevitably pose: "May I drive my ship or fly my aircraft there" and, if so, "What are the limitations on my activities in the area?" Using the 1982 Law of the Sea Convention as a point of departure, Section I describes how to determine where the regimes lie and what they mean in practical terms for ship drivers, pilots and operational planners. Armed with the basics, in Section II the reader is introduced to the law of naval operations per se, with emphasis placed on periods of armed conflict. The survey begins with a discussion of the law of neutrality, including the rights of belligerents and neutrals, visit and search operations, and the possible effect of UN operations on neutrality law. It concludes with a brief summary of four traditional concerns during armed conflict at sea -- targeting, mine warfare, deception, and maritime zones.
Judge Advocate General School (United States. Air Force)
Schmitt, Michael N.; Astley, John
1997
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Bellum Americanum Revisited: U.S. Security Strategy and the Jus ad Bellum
Schmitt argues, "since law tends to react to conflict, it is sensible to begin by considering the nature of future conflict and the strategies designed to address it. It might then be possible to identify where such strategies fit existing legal norms, where reinterpretation of those norms might be necessary, and where there is an overt mismatch between law and strategy." This article addresses "where strategies conflict with law, thereby necessitating a change in one or the other, or at least an acceptance of the costs of being labeled as lawless." Schmitt looks at the U.S. vision of future conflict, as well as the strategies articulated to deal with such conflict."
Judge Advocate General's Legal Center and School (United States. Army)
Schmitt, Michael N.
2003
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International Court of Justice and the Use of Nuclear Weapons
"This article will attempt to clarify the substance and meaning of the case known as Legality of the Threat or Use of Nuclear Weapons, one clearly unique, in terms of both import and subject matter, in the International Court of Justice's (ICJ) fifty-two-year history. The intent is to clear away some of the fog that surrounds the decision, a necessary first step for those who are charged with making, executing, or analyzing national policy. The discussion begins with a survey of how the matter came to the ICJ's attention, why the Court declined to rule in a companion case, and the decision to exercise jurisdiction. With the groundwork laid, the findings and their legal basis will be analyzed and assessed. The article will conclude with reflections on the significance of the Court's decision."
Naval War College (U.S.). Press
Schmitt, Michael N.
1998
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Sixteenth Waldemar A. Solf Lecture in International Law
This is an edited transcript of a lecture delivered on 28 February 2003 by Professor Michael N. Schmitt to the members of the staff and faculty, distinguished guests, and officers attending the 51st Graduate Course at The Judge Advocate General's School. Given the uniqueness of the war on terrorism, this document revisits the significance of Bellum Americanum. The war on terrorism has presented significant challenges to the jus in bello. This document considers the controversies over the term "military objective" during Operation Allied Force or the refusal to characterize detainees as "prisoners of war" during Enduring Freedom. Most normative disquiet during this period has surrounded the jus ad bellum; therefore, that body of law is the focus of this document.
Judge Advocate General's Legal Center and School (United States. Army)
Schmitt, Michael N.
2003-06
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Classification of Cyber Capabilities and Operations as Weapons, Means, or Methods of Warfare
From the Introduction: "The development of cyber capabilities with the potential for operational use on the battlefield predates consideration as to how international law applies to this new form of warfare. Indeed, the first government assessment of cyber operations in armed conflict came in a 1999 analysis by the Office of the General Counsel at the U.S. Department of Defense, which warned, '[i]t will not be . . . easy to apply existing international law principles to information attack, a term used to describe the use of electronic means to gain access to or change information in a targeted information system without necessarily damaging its physical components.' In particular, the assessment pointed to 'computer network attack, or in today's vernacular, the 'hacking' of another nation's computer systems.' By then, strategists and operators had been thinking about 'information warfare' for some time, with many heralding a 'revolution in military affairs.' In 1998, the Joint Chiefs of Staff published Joint Doctrine for Information Operations, which began the complex process of developing a doctrinal framework for such operations. As military structures and operations integrated cyber capabilities, the tendency was, and remains, 'normalization,' where practitioners incorporate terms and doctrine from existing military parlance and practice into the cyber context."
Naval War College (U.S.)
Biller, Jeffrey T.; Schmitt, Michael N.
2019
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Classification of Cyber Conflict
"Few international humanitarian law topics are proving as problematic in modern warfare as 'classification of conflict,' that is, the identification of the type of conflict to which particular hostilities amount as a matter of law. Classifying the conflict in question is always the first step in any inter-national humanitarian law analysis, for the nature of the conflict determines the applicable legal regime. Accordingly, classification is a subject of seminal importance. The current difficulties derive from the advent of hostilities over the past two decades that do not neatly fit the traditional bifurcation of conflict into either State-on-State or purely internal. For instance, the International Criminal Tribunal for the former Yugoslavia (ICTY) struggled with criteria for internationalization of non-international conflict in its first case, 'Tadić'. Less than a decade later, transnational terrorism refocused attention on classification issues. Was such terrorism international in character because it transcended borders or non-international because it did not involve the forces of one State engaging in hostilities against those of another (or was it even armed conflict at all)? More recently, external recognition of the National Transitional Council as the legitimate government of Libya raised the question of whether such recognition 'de-internationalized' the conflict between the States that were fighting on the side of the rebels and Qaddafi's forces. In the future, cyber warfare will further complicate classification. Cyber operations have the potential for producing vast societal and economic disruption without causing the physical damage typically associated with armed conflict."
Naval War College (U.S.). International Law Studies
Schmitt, Michael N.
2013
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Charting the Legal Geography of Non-International Armed Conflict
"United States extraterritorial drone and special operations continue to generate international and domestic controversy. Much of the debate surrounds the legality of crossing State borders to conduct the missions. Although commentators sometimes look to international humanitarian law (IHL) as the source of authority for transborder operations, the existence of an armed conflict in which IHL applies generally has no bearing on the extraterritoriality question. As has been discussed elsewhere, the primary international law bases for extraterritorial operations are instead consent and self-defense--aspects of the 'jus ad bellum', not the 'jus in bello'. However, the existence of an armed conflict does fix the legal regime that controls 'how' extraterritorial operations have to be conducted. The fundamental legal question in this regard is whether the 'lex generalis' of international human rights law (IHRL) or the 'lex specialis' of IHL binds a State's extraterritorial application of force. […] This article examines the geographical reach of IHL during an armed conflict between a State and a non-State organized armed group. Its purpose is to explore how location affects the applicability of the differing legal regimes. Discussion will focus predominantly on non-international armed conflict (NIAC), for that genre of hostilities poses the greatest interpretive conundrums. It is an inquiry of momentous practical importance since IHL's range (or lack thereof) influences operational planning and mission execution, determines how civilians and civilian objects must be protected during hostilities, sets the applicable detention regime, and affords avenues for enforcement of norms that are not otherwise available."
Naval War College (U.S.)
Schmitt, Michael N.
2014
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International Attribution Mechanism for Hostile Cyber Operations
From the Document: "The International Law Commission's Articles on State Responsibility are generally accepted as restating the customary international law standards for attribution to States. In the cyber context, the two most likely, albeit not only, bases for attribution are that an organ of a State, such as the armed forces, launched the cyber operation that breached the obligation in question, or that a non-State actor, like a hacktivist group or a private company, did so upon the instructions or under the effective control of a State. There are different standards of proof depending on the purpose of the assertion of unlawfulness, but legal rights under international law can only be effectively invoked and relied upon in practice on the basis of an adequate factual foundation. [...] This article examines several possible justifications for establishing an international attribution mechanism and its principal constituencies. Part II sets forth the general case for international fact-finding mechanisms in international law, particularly when there is a need to rely on scientific and technological expertise. Part III details the shortcomings of the existing processes for attributing responsibility for hostile cyber operations. Part IV reviews proposals to establish an international attribution mechanism, while Part V examines the constituency for a new mechanism. Our concluding thoughts are set forth in Part VI."
Naval War College (U.S.). International Law Studies
Shany, Yuval; Schmitt, Michael N.
2020
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