Military Law / National Security

Acacio, Igor, Anaís M Passos and David Pion-Berlin, ‘Military Responses to the COVID-19 Pandemic Crisis in Latin America: Military Presence, Autonomy, and Human Rights Violations’ (2023) 49(2) Armed Forces & Society 372–394
Abstract: The military in Latin America has been extensively involved in pandemic relief operations. This paper analyses the impact of militarization of pandemic relief operations on human rights. It argues that not all militarization is equally harmful to individuals in the region. When troops assume responsibilities regarding medical care and logistical support, human rights violations do not follow. When involved in policing the stay-at-home orders, the extent of human rights violations is explained by the level of operational autonomy the military has in public security operations. The more autonomous the military, more likely abuses are to occur. Additionally, military exposure to judicial prosecution for human rights offenses contributes to the explanation. After gathering original empirical evidence from 14 Latin American democracies on military presence in pandemic relief, we draw our inferences from process tracing on four comparative case studies of Argentina, Brazil, Chile, and El Salvador.

Angkasari, Wildani and Andrey Sujatmoko, ‘Protection of Indonesian Fishermen from China’s Threat in the North Natuna Sea Region During the Covid-19 Pandemic’ (Proceedings, 3rd International Conference on Law Reform, 2022) 326–333
Abstract: The economic importance of the North Natuna Sea is premised not only on its function as one of the largest marine sources in Indonesia but also as an important location for the Indonesian military to conduct large-scale exercises. Amidst the ongoing outbreak of the COVID-19 pandemic, unauthorized fishing by Chinese flagged boats continues to be pervasive in the Indonesian EEZ off Natuna Islands. Chinese coast guard and military vessels were constantly and visibly present in those waters, testing the patience and perseverance of Indonesia’s authorities. The purpose of this article is to find out the cause related to the problem of protecting Indonesian fishermen in catching fish in the region. The Indonesian government is committed to ensuring rapid mobilization of its military and naval assets in the area when required to protect the fishermen. The method used in this research employed the qualitative method and critical content analysis. The legal consequences of ratifying the United Nations Convention on the Law of the Sea 1982 (UNCLOS 1982) with Law No. 17 of 1985 concerning the ratification of UNCLOS, Law No. 32/ 20014 concerning about the sea are the substance of law regulation. The type of data used is secondary data, namely data obtained through literature study. The study matches that Indonesia must develop fishermen with the spirit of defending the country, especially in areas where the waters are partially located within China’s nine-dash line.

Baker, James E, ‘From Shortages to Stockpiles: How the Defense Production Act Can Be Used to Save Lives, Make America the Global Arsenal of Public Health, and Address the Security Challenges Ahead’ (2020) 11(1) Journal of National Security Law & Policy 157–179
Abstract: The Hon. James E. Baker writes that Defense Production Act (DPA) was enacted to provide the federal government with the authority to systematically mobilize the industrial capacity of the nation to address national security emergencies. While it has been primarily used to prioritize DoD contracts and to incentivize the production of goods for which there is otherwise too small a market, it may prove to be useful in combatting the effects of COVID-19. If the DPA were to be used to its fullest extent, it may become an important authority for producing a COVID-19 vaccine at scale; for constructing a long-term, secure, and independent medical supply chain; and stimulating the economy by making the U.S. a global arsenal of public health. In his examination of the DPA, Baker outlines the ways it has been used both during and before the pandemic, considers real and perceived concerns over its potential use, and highlights issues that should be addressed as soon as possible. He further provides three lessons that can be learned from the DPA’s non-use and suggests methods to ensure the adequate preparation for challenges yet to come.

Douvas, Alexander et al, ‘Breaking Quarantine: Using Article 84 to Combat COVID-19 No. 1’ [2020] (2) Army Lawyer 44–55
Abstract: Introduction: Coronavirus Disease 2019 (COVID-19) is caused by the virus Severe Acute Respiratory Syndrome-Coronavirus-2 (SARSCoV -2). This virus is highly contagious, with an estimated average incubation period of five days prior to symptoms,4 during which time it can still be transmitted.5 Within three months of its discovery in late 2019, the rapidly spreading SARS-CoV-2 reached global pandemic status. The current national strategy to combat COVID-19—‘social distancing’—is designed to slow the spread of the virus and enable the medical community to treat the most severe cases without exceeding hospital capacity. The military is neither immune to this pandemic nor exempt from the efforts to combat its spread. Instead, it is currently working to strike a balance between operational readiness and restrictive personnel policies. While the ultimate impact of COVID-19 on military operations and service policies remains uncertain, one thing is clear: with an estimated 1.3 million active duty service members subject to some form of COVID-19 restrictions, the newly re-designated Article 84, Uniform Code of Military Justice (UCMJ) (Breach of Medical Quarantine), is about to be field tested.

Erickson, Peter, Marko Kljajić and Nadav Shelef, ‘Domestic Military Deployments in Response to COVID-19’ (2023) 49(2) Armed Forces & Society 350–371
Abstract: Militaries are commonly deployed in response to domestic disasters. However, our understanding of this phenomenon remains incomplete, partly because the particulars of disasters make it hard to generalize about deployments used in response. This article leverages the COVID-19 pandemic’s global reach to systematically evaluate common hypotheses about when and how militaries are used to respond to domestic disasters. It presents original global data about domestic military deployments in pandemic response and uses it to assess common theoretical expectations about what shapes whether and how militaries are used in such contexts. The results suggest that decisions about whether to deploy militaries stem from the securitization of domestic disaster relief rather than being responses to specific disaster-related features, state capacity shortcomings, or other social or political factors, even as some of these elements shaped how militaries were used. The article concludes by outlining some hypotheses for future research about the impact of this securitization on civil-military relations.

Fidell, Eugene R, ‘COVID-19 and Military Law’ (2020) 11(1) Journal of National Security Law & Policy 181–197
Abstract: As a ‘specialized society separate from civilian society,’ the military experiences not only many of the same challenges as the larger society as a result of COVID-19, but also other challenges arising in the contexts of their normal missions and times of crisis. In light of the developments during the first half of 2020, Eugene Fidell’s article on COVID-19 and Military Law highlights some of the legal challenges that have arisen in the military world due to COVID-19. In doing so, he focuses on various perspectives, including the intersection between commanders’ responsibility for the health and safety of their personnel; systemic effects and adjustments to the internal administration of justice; and challenges presented to domestic law, legal institutions, and human rights following a shift to a domestic law enforcement mission. These perspectives have direct and indirect effects on unit cohesion, mission-readiness, mission-accomplishment, and public trust.

Gutorova, Natalia Oleksandrivna, Yuliia Yuriivna Zabuha and Tetiana Oleksandrivna Mykhailichenko, ‘Legal Issues of Epidemic Safety Due to the Pandemic COVID-19 and the War in Ukraine’ in The European Dimension of Modern Legal Science (Baltija Publishing, 2022) 181–205
Abstract: The experience of fighting the COVID-19 pandemic has shown how vital epidemic safety is for each country. Furthermore, it is not just about saving the lives and health of millions of people. The economic crisis engulfed the whole world. At the same time, we had a crisis in the tourism sector, restricting access to proper and quality education and temporarily restricting freedom of movement. The restrictions on human rights and freedoms were significant, and many countries introduced them in violation of the law. With the increase in the number of mental and psychiatric diseases, the following problems of economic character are a partial list of the negative consequences of this pandemic. In order to prevent these consequences or reduce them to a minimum, the state must have a properly developed system of measures to contain the epidemic and pandemic. That is why they especially need proper legal regulation. This study is devoted to issues that arise precisely at the last (third) level of legal regulation of epidemic safety, when, as a result of an epidemic or pandemic, the state must declare a state of emergency. In addition, Ukraine has a large-scale war, started by the Russian Federation on February 24, 2022, and martial law. These, as well as many other factors, indicate an even more significant deterioration in the country is already the somewhat unfavorable epidemic situation, which determines the relevance of the chosen topic.

Halkis, Mhd, David Yacobus and Suhirwan Suhirwan, ‘The COVID-19 Pandemic Emergency for the Doctrine of Asymmetric Warfare’ (2022) 6(S6) International Journal of Health Sciences 7677–7695
Abstract: Several countries that have involved the military in handling Corona Virus Disease 2019 (COVID-19) have been relatively successful. The authors researched the doctrine of asymmetric warfare during the COVID-19 pandemic emergency. The Indonesian government assigns the Indonesian National Army (TNI) during an emergency. Help to support the smooth circulation of fulfilling the population’s basic needs, cross-regional population transportation, crime is not widespread, offices continue to run with restrictions on the number of people working, and the economy recovers quickly. This research framework uses moral philosophy. Deontological views and utilitarianism become the main assessment instruments to build the doctrine of asymmetric warfare. This research uses a case study approach. The study results show that the Indonesian people see the emergency condition of the COVID-19 pandemic as an asymmetrical warfare. The government is aware of the implications of the COVID-19 pandemic occurring at various government levels in terms of spread, duration, and number. All resources are used to deal with COVID-19, including the military, because civil society does not have many facilities and capabilities of TNI personnel.

McKay, Annelize, Chazanne Grobler and Martha M Bradley, ‘COVID-19 and Its Implications for the Law of Non-International Armed Conflict: The Case of Mozambique’ in Marko Svicevic and Martha M Bradley (eds), Mozambique’s Cabo Delgado Conflict: International Humanitarian Law and Regional Security (Routledge, 2024)

McKelvy, Shawn, L Uhl and Armand Balboni, ‘Shots Fired, Shots Refused: Scientific, Ethical & Legal Challenges Surrounding the U.S. Military’s COVID-19 Vaccine Mandate’ (2024) 55(2) St. Mary’s Law Journal 405–473
Abstract: The COVID-19 pandemic provided uncertain and challenging circumstances under which to lead a nation and the military that protects it. Those in charge and in command faced unique challenges—scientific, ethical, and legal—at our various levels of government to both keep people safe while keeping government and society functioning. While there were many successes to celebrate, there are also many criticisms for how this ‘whole-of-government approach’ may have degraded some of our most cherished liberties along the way. The authors focus on the U.S. military’s vaccine mandate and propose military leaders may have failed to fully consider the evolving science, weigh the prevailing ethics, and appropriately apply the relevant law regarding exemptions, and instead adopted a more uniform approach that aligned with other federal agencies and not to the military’s unique population. And along the way, military leaders lost some of the trust and the faith of those they were seeking to protect, prompting the other two branches of government, the Judiciary and Congress, to intervene. Drawing from our diverse experiences as both practitioners and academics, this Article not only seeks to document the past but also provides some suggestions for the future should we face another such pandemic.

Narayan, Maya, ‘A Force of Last Resort?: A Critical Evaluation of the Use of the Australian Defence Force in the Context of Bushfires and Pandemics’ (2022) 33(3) Public Law Review 246
Abstract: In the last three years, Australia has experienced an unprecedented coalescence of threats posed to the health and safety of its population: the catastrophic 2019/2020 bushfire season; and the COVID-19 pandemic. In both contexts, the States and Territories have, consistently with the distribution of authority for emergency management within Australia's federal system, taken primary responsibility for responding to the relevant crisis. Forced to play a supporting role, the Commonwealth has increasingly relied on deployment of the Australian Defence Force (ADF) to provide assistance. The position advanced in this article is that the key justifications for use of the ADF in responding to domestic emergencies – particularly those constituted by threats of a not directly anthropogenic nature – do not adequately explain the value of the ADF and that significant functional and legal constraints on defence personnel in this context may, in fact, hinder state and territory emergency responses.

Nevitt, Mark, ‘Domestic Military Operations and the Coronavirus Pandemic’ (2020) 11(1) Journal of National Security Law & Policy 107–129
Abstract: This article proceeds in three parts. Part I considers the emergency authorities invoked to address the coronavirus, including the Public Health Service Act (PHSA), National Emergencies Act (NEA), and Stafford Act. Part II deals with the laws, regulations, and policies governing the military’s role as a law enforcer— including restrictions on the military’s role to quell civilian disturbances. I also briefly discuss martial law, a rarely invoked but powerful authority held at the federal, state, and local levels. Part III deals with the scope of the military as emergency aid and relief provider. Unlike the military’s role in quelling domestic disturbances, there are far fewer restrictions when it provides relief following a natural disaster or health crisis.

Swalwell, Rep Eric and R Alagood, ‘Biological Threats Are National Security Risks: Why COVID-19 Should Be a Wake up Call for Policy Makers’ (2021) 77(2) Washington and Lee Law Review Online 217-247
Abstract: A national security strategy is the ‘nation’s plan for the coordinated use of all the instruments of state power—nonmilitary as well as military—to pursue objectives that defend and advance its national interest.’ Perhaps the most straightforward national security objective is to protect the country from foreign invasion, but national security involves other objectives that aim to protect people in the United States as well as their values. For example, protecting U.S. elections from foreign interference is a security objective that advances the nation’s interest in democratic governance. The outbreak of a highly contagious disease like COVID‑19 strikes at the core of national security and the nation’s interest in protecting its citizens from unnecessary harm.

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