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Military Law Review U.S. Volume 223 Issue 1 2015 DEP’T OF ARMY PAMPHLET 27-100-223 PAMPHLET ARMY OF DEP’T MILITARY LAW REVIEW ARTICLES THE FRENCH MILITARY INTERVENTION IN MALI, COUNTER-TERRORISM, AND THE LAW OF ARMED CONFLICT Mr. Dan E. Stigall MILITARY LAW REVIEW LAW MILITARY THE ABUSE OF DISCRETION STANDARD OF REVIEW IN MILITARY JUSTICE APPEALS Colonel Jeremy Stone Weber HE DID IT, BUT SO WHAT? WHY PERMITTING NULLIFICATION AT COURT-MARTIAL RIGHTFULLY ALLOWS MEMBERS TO USE THEIR CONSCIENCES IN DELIBERATIONS Major Michael E. Korte CYBERTERRORISTS: THE IDENTIFICATION AND CLASSIFICATION OF NON-STATE ACTORS WHO ENGAGE IN CYBER-HOSTILITIES Major Andrea C. Goode KEEP YOUR HANDS TO YOURSELF: WHY THE MAXIMUM PENALTY FOR ASSAULT CONSUMMATED BY A BATTERY MUST BE INCREASED Major Brian J. Kargus Book Review VOLUME 223 2015 Department of the Army Pamphlet 27-100-223 Military Law Review Volume 223 Issue 1 2015 CONTENTS Articles The French Military Intervention in Mali, Counter-terrorism, and the Law of Armed Conflict Mr. Dan E. Stigall 1 The Abuse of Discretion Standard of Review in Military Justice Appeals Colonel Jeremy Stone Weber 41 He Did It, but So What? Why Permitting Nullification at Court-Martial Rightfully Allows Members to Use Their Consciences in Deliberations Major Michael E. Korte 100 Cyberterrorists: The Identification and Classification of Non-State Actors who Engage in Cyber-hostilities Major Andrea C. Goode 157 Keep your Hands to Yourself: Why the Maximum Penalty for Assault Consummated by a Battery Must Be Increased Major Brian J. Kargus 198 Book Review Duty: Memoirs of a Secretary at War Reviewed by Captain Sean P. Mahard 223 i Headquarters, Department of the Army, Washington, D.C. Pamphlet No. 27-100-223, 2015 Military Law Review Volume 223 Issue 1 Board of Editors Colonel James F. Garrett Dean, The Judge Advocate General’s School Lieutenant Colonel William E. Mullee Chair, Administrative and Civil Law Department Major Elizabeth A. Turner Director, Professional Communications Program Captain Justin C. Barnes Editor Since its inception in 1958 at The Judge Advocate General’s School, U.S. Army, in Charlottesville, Virginia, the Military Law Review has encouraged a full and frank discussion of legislative, administrative, and judicial principles through a scholarly examination of the law and emerging legal precepts. In support of that mission, the Military Law Review publishes scholarly articles that are relevant to, and materially advance, the practice of law within the military. The Military Law Review does not promulgate official policy. An article’s content is the sole responsibility of that article’s author, and the opinions and conclusions that are reflected in an article are those of the author and do not necessarily reflect the views of the U.S. government, the Department of Defense, the Department of the Army, The Judge Advocate General’s Corps, The Judge Advocate General’s Legal Center and School, or any other governmental or non-governmental agency. WEBSITE: The Military Law Review is available at http://www.jagcnet.army.mil/MLR. ii COPYRIGHT: Unless noted in an article’s title, all articles are works of the United States Government in which no copyright subsists. When copyright is indicated in the title, please contact the Military Law Review at [email protected] for copyright clearance. SUBSCRIPTIONS: Interested parties may purchase private subscriptions from the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, at (202) 512- 1800. An annual subscription is $20 for a domestic subscriber or $28 for an international subscriber. For Army legal offices, including within the Army National Guard and the U.S. Army Reserve, and other federal agencies, inquiries and address-change requests should be communicated to the Military Law Review. Other military services may request distribution through official publication channels. This periodical’s postage is paid at Charlottesville, Virginia, and additional mailing offices. Reprints of published works are not available. POSTMASTER: Send address-change requests to Military Law Review, The Judge Advocate General’s Legal Center and School, U.S. Army, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, Virginia 22903-1781. CITATION: This issue of the Military Law Review may be cited as 223 MIL. L. REV. (page number) (2015). SUBMISSION OF WORKS: The Military Law Review accepts submissions of works from military and civilian authors. Any work that is submitted for publication will be evaluated by the Military Law Review’s Board of Editors. In determining whether to publish a work, the Board considers the work in light of the Military Law Review’s mission and evaluates the work’s argument, research, and style. No minimum or maximum length requirement exists. Footnotes should be numbered consecutively from the beginning to the end of the writing, not section by section. Citations must conform to The Bluebook: A Uniform System of Citation (19th ed. 2010) and to the Military Citation Guide (TJAGLCS 19th ed. 2014). A submitted work should include biographical data concerning the author or authors. This information should consist of branch of service, duty title, present and prior positions or duty assignments, all degrees iii (with names of granting schools and years received), and previous publications. If submitting a lecture or a paper prepared in partial fulfillment of degree requirements, the author should include the date and place of delivery of the lecture or the date and source of the degree. All submissions must be in Microsoft Word format and should be sent to the Editor, Military Law Review, at usarmy.pentagon.hqda- [email protected]. If electronic mail is not available, please forward the submission, double-spaced, to the Military Law Review, Administrative and Civil Law Department, The Judge Advocate General’s Legal Center and School, U.S. Army, 600 Massie Road, Charlottesville, Virginia 22903-1781. iv INDIVIDUAL PAID SUBSCRIPTIONS TO THE MILITARY LAW REVIEW The Government Printing Office offers a paid subscription service to the Military Law Review. To receive an annual individual paid subscription (4 issues), complete and return the order form on the next page. RENEWALS OF PAID SUBSCRIPTIONS: You can determine when your subscription will expire by looking at your mailing label. Check the number that follows “ISSDUE” on the top line of the mailing label as shown in this example: When this digit is 7, you will be sent a renewal notice. MILR SMITH212J ISSDUE007 R1 JOHN SMITH 212 BROADWAY STREET SAN DIEGO, CA 92101 The numbers following ISSDUE indicate how many issues remain in the subscription. For example, ISSDUE001 indicates a subscriber will receive one more issue. When the number reads ISSDUE000, you have received your last issue and you must renew. To avoid a lapse in your subscription, promptly return the renewal notice with payment to the Superintendent of Documents. If your subscription service is discontinued, simply send your mailing label from any issue to the Superintendent of Documents with the proper remittance and your subscription will be reinstated. INQUIRIES AND CHANGE OF ADDRESS INFORMATION: The Superintendent of Documents is solely responsible for the individual paid subscription service, not the Editors of the Military Law Review. For inquires and change of address for individual paid subscriptions, fax your mailing label and new address to (202) 512-2250, or send your mailing label and new address to the following address: United States Government Printing Office Superintendent of Documents ATTN: Chief, Mail List Branch Mail Stop: SSOM Washington, DC 20402 v MILITARY LAW REVIEW Volume 223 Issue 1 THE FRENCH MILITARY INTERVENTION IN MALI, COUNTER-TERRORISM, AND THE LAW OF ARMED © CONFLICT * DAN E. STIGALL I. Introduction Non-state armed groups are increasingly a source of global 1 insecurity. Developing and fragile states in Africa are especially vulnerable to myriad terrorist groups and transnational criminal organizations that seek to exploit the inability of poorer countries to 2 contain them. The threats in these regions are, however, not only dangers to those on the African continent. As the 1998 bombings of the U.S. Embassies in Kenya and Tanzania demonstrated with brutal * Dan E. Stigall earned his LL.M. in 2009 from the George Washington University School of Law; his J.D. in 2000 from the Louisiana State University Paul M. Hebert Law Center; and his B.A. in 1996 from the Louisiana State University. Mr. Stigall is a Trial Attorney with the U.S. Department of Justice, Office of International Affairs (OIA). He also serves as Coordinator for International Security Affairs. Before joining the Department of Justice, he served on active duty in the U.S. Army JAG Corps from 2001– 2009, serving in Europe, the Middle East, and the United States. He continues to serve as a U.S. Army Reservist in the 150th Legal Operations Detachment (LOD). Any opinion expressed in this Article is solely that of the author and not necessarily that of the Department of Defense or the Department of Justice. The author wishes to thank Dr. Michael Shurkin, a political scientist and expert at the RAND Corporation, for sharing his valuable insight and expertise on Mali and conflict in the Sahel. The author also wishes to thank his dear friend (and former JAG) Professor Eric Talbot Jensen for taking the time to read an earlier draft of this article. In addition, the author wishes to thank his colleagues on the faculty of The Judge Advocate General’s Legal Center and School (TJAGLCS) for their peer review. 1 See ROBERT MANDEL, DARK LOGIC: TRANSNATIONAL CRIMINAL TACTICS AND GLOBAL SECURITY 1, 17 (2011). 2 Id. at 23. 2 MILITARY LAW REVIEW [Vol. 223 lethality, Africa-based terrorist groups can also threaten the interests of the United States and other countries.3 In that regard, the region in Africa known as the Sahel4 represents a growing international security concern due to its ungoverned spaces in which transnational criminal networks, extremist groups, narcotraffickers, and terrorist organizations operate.5 Emphasizing the dangers faced in the region, the U.N.
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