Sentencing Complexities in National Security Cases

Military national security courts-martial infrequently occur. When they do occur, military counsel, judges, and court personnel endeavor to perform their function at a high level. Unfortunately, the process by which the U.S. government conducts classification reviews and the military’s inexperience in national security cases often results in the form of safeguarding classified information trumping the substantive function of the underlying trial process. And by the time the sentencing phase is reached, understandable but unfortunate focus is placed on simply concluding the trial without mishandling classified information. This article examines the sentencing complexities in military national security cases, first defining a national security case and then distinguishing Department of Defense prosecutions from those by the Department of Justice. Following that, this article explains the challenges national security cases present, including the introduction of classified information and the difficulty in correlating degrees of potential harm to national security to a level of punishment

Law as Shield, Law as Sword: the ICC’s \u3cem\u3eLubanga\u3c/em\u3e Decision, Child Soldiers and the Perverse Mutualism of Participation

The International Criminal Court’s Lubanga decision has been hailed as a landmark ruling heralding an end to impunity for those who recruit and employ children in armed conflict and a pivotal victory for the protection of children. Overlooked amidst this self-­‐congratulation is that the ICC incorrectly applied the law governing civilian participation in hostilities which perversely places child soldiers at greater risk of being attacked. The Court created a false distinction between active and direct participation in hostilities. Expanding the kinds and types of behaviors that constitute children actively participating in hostilities expanded Lubanga¹s liability. But under the law of armed conflict active and direct refer to the same quantum of participation. And when a civilian, including a child soldier, directly participates in hostilities, they lose a pivotal protection -­ the protection from being made the lawful object of attack. The ICC¹s first verdict confuses an already opaque area of the law. Worse, the ICC now provides the international legal imprimatur for the permissible targeting of child soldiers under a wider range of circumstances than previously recognized

Tribological properties of a B2-type Al-Pd-Mn quasicrystal approximant

The tribological properties of a B2-type Al–Pd–Mn quasicrystal approximant were investigated and compared with those of an Al–Pd–Mn icosahedral quasicrystal. The approximant was of the _ phase, having a crystalline CsCl-type structure and nominal composition Al48Pd42Mn10. Friction coefficients measured in ultrahigh vacuum between a pair of Al48Pd42Mn10 samples having truly clean surfaces were found to be twice as high as those reported for the Al70Pd21Mn9 quasicrystal. When the surfaces were oxidized by exposure to O2 or H2O, the friction coefficients decreased by roughly a factor of two for both materials but the friction coefficient for the approximant remained roughly twice that of the quasicrystal. The rate of oxidation of the approximant was found to be one order of magnitude higher than that of the quasicrystal. This corroborates findings that suggest that quasicrystals exhibit an inherent resistance to oxidation and corrosion. Vickers hardness measurements show that the quasicrystal is roughly three times as hard as the approximant

Belligerent Targeting and the Invalidity of a Least Harmful Means Rule

The law of armed conflict provides the authority to use lethal force as a first resort against identified enemy belligerent operatives. There is virtually no disagreement with the rule that once an enemy belligerent becomes hors de combat — what a soldier would recognizes as “combat ineffective” — this authority to employ deadly force terminates. Recently, however, some have forcefully asserted that the LOAC includes an obligation to capture in lieu of employing deadly force whenever doing so presents no meaningful risk to attacking forces, even when the enemy belligerent is neither physically disabled or manifesting surrender. Proponents of this obligation to capture rather than kill, or use the least harmful means to incapacitate enemy belligerents, do not contest the general authority to employ deadly force derived from belligerent status determinations. Instead, they insist that the conditions that rebut this presumptive attack authority are broader than the traditional understanding of the meaning of hors de combat embraced by military experts, and include any situation where an enemy belligerent who has yet to be rendered physically incapable of engaging in hostilities may be subdued without subjecting friendly forces to significant risk of harm. This essay offers our collective and — we hope — comprehensive rebuttal of this least harmful means LOAC interpretation. First, Section I reviews the fundamental principles of the LOAC that permit status-based attacks against enemy belligerents with combat power highly likely to cause death unless and until the enemy is rendered physically incapable of participating in hostilities. Section II thoroughly analyzes the affirmative prohibitions on the use of force that the LOAC — and specifically Additional Protocol I — does require, and also highlights what Additional Protocol I does not require. In particular, the fact that Additional Protocol I — by any account the most humanitarian-oriented LOAC treaty ever developed — did not impose any affirmative least harmful means obligation vis à vis belligerents undermines any assertion that such an obligation may be derived from the positive LOAC. Finally, and perhaps most importantly, Section III emphasizes how this least harmful means concept, especially when derived from an expanded interpretation of the meaning of the concept of hors de combat, is fundamentally inconsistent with the tactical, operational, and strategic objectives that dictate employment of military power. The LOAC must, as it has historically, remain rationally grounded in the realities of warfare. We are confident that anyone grappling with this issue understands that decisions related to the employment of combat power are not resolved in the quiet and safe confines of law libraries, academic conferences, or even courtrooms; they are resolved in the intensely demanding situations into which our nation thrusts our armed forces. The law must, as it always has, remain animated by the realities of warfare in the effort to strike a continuing credible balance between the authority to prevail on the battlefield and humanitarian objective of limiting unnecessary suffering. The clarity of the existing paradigm achieves that goal and does not include any legal obligation to use the least harmful means in targeting enemy belligerent personnel

Comparative Study of the Tribological and Oxidative Properties of AlPdMn Quasicrystals and Their Cubic Approximants

An experimental comparison has been made between the properties of the surfaces of an Al70Pd21Mn9quasicrystal and its Al48Pd42Mn10 approximant. The Al70Pd21Mn9 sample was a single grain icosahedral quasicrystal cut to expose its five-fold symmetric (000001) surface. The approximant was polycrystalline β-phase Al48Pd42Mn10, which has a CsCl-type cubic structure. Surfaces of both were prepared under ultra-high vacuum (UHV) conditions and then used for comparative measurements of their frictional properties and oxidation rates. Both materials are oxidized by reaction with O2 to form a thin film of aluminum oxide that ultimately passivates their surfaces. The interesting difference between the two is that the rate of oxidation of the approximant is significantly higher than that of the quasicrystal in spite of the fact that the bulk Al concentration of the approximant is lower than that of the quasicrystal. Friction measurements were made under UHV conditions between pairs of quasicrystals and pairs of approximants whose surfaces were either clean or oxidized to varying degrees. The friction between pairs of the approximant surfaces is significantly higher than that measured between the quasicrystal surfaces under all conditions of surface oxidation