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Date Title Author Reference
***New***
March
IHL Does Not Authorise Detention in NIAC: A Response to Murray Kevin Jon Heller Opinio Juris,
22 March 2017
Over the past couple of years, a number of scholars have debated whether IHL implicitly authorises detention in non-international armed conflict (NIAC.) The latest important intervention in the debate comes courtesy of Daragh Murray in the Leiden Journal of International Law. Professor Heller argues that, because wrongful detention and inhumane detention are separate and distinct prohibitions, there is no reason why IHRL can't absolutely prohibit Non-State Actors (NSA) from detaining (because neither international law nor domestic law authorises such detention) while IHL regulates NSA detention (by prohibiting NSAs from treating detainees inhumanely). Unauthorised detention violates IHRL (and very likely domestic law), but not IHL; inhumane detention violates IHL (and likely IHRL). It’s not an either/or. A very useful and powerfully argued analysis by Professor Heller.
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***New***
March
US Arms Sale to Saudis Spells Legal Trouble for State Depart Officials Ryan Goodman RUSI,
15 March 2017
In December, the Obama administration suspended a large weapon sale to Saudi Arabia due to concerns about widespread civilian casualties from Saudi airstrikes in Yemen. The Trump administration is now looking to reverse that decision. If the White House approves the sale and overcomes expected congressional opposition, it could leave bureaucrats in the State Department holding the bag—under pressure to approve sales that put them personally at legal risk. Policymakers may believe there are overriding U.S. interests favoring US support for Saudi Arabia in its proxy war with Iran in Yemen, but that kind of policy calculation does not resolve the legal risks involved.
Under international criminal law, and perhaps U.S. federal law, individual officials may be personally liable for "aiding and abetting," or helping to commit, serious breaches of the laws of war. The Department of Defense's Law of War Manual may not serve policymakers well in this important respect. The DoD Law of War Manual states that aiding and abetting a war crime requires that an accomplice has "a desire to help the activity succeed." If that were the legal rule, U.S. government officials could rest easy knowing that they obviously don't desire the Saudis to use US-manufactured weapons to target or kill civilians. That's not, however, what the law actually says. Having a desire to facilitate an offence is part of the standard elements required for an accomplice to be culpable, but not when the act of the recipient government involves a "particularly grave" or serious criminal act. When it comes to those more serious offences, knowledge that one's assistance would support the act could alone suffice. "The knowledge required is simply a knowing participation that the acts would assist the commission of a crime... A conscious desire or willingness to achieve the criminal result is not required." Similar principles apply to UK officials.
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***New***
March
Hybrid Warfare, Law and the Fulda Gap Aurel Sari SSRN,
5 March 2017
The purpose of this paper is to explore the legal dynamics of hybrid warfare. The author's central argument is that law constitutes an integral and critical element of hybrid warfare. Law conditions how we conceive of and conduct war. By drawing a line between war and peace and between permissible and impermissible uses of force, the legal framework governing warfare stabilizes mutual expectations among the warring parties as to their future behavior on the battlefield. Hybrid adversaries exploit this stabilizing function of the law in order to gain a military advantage over their opponents. The overall aim of hybrid adversaries is to create and maintain an asymmetrical legal environment that favors their own operations and disadvantages those of their opponents. This poses two principal challenges, one specific and one systemic in nature. Law is a domain of warfare. Nations facing hybrid threats should therefore prepare to contest this domain and strengthen their national and collective means to do so. This requires a clear understanding of the legal dynamics of hybrid threats, awareness of legal vulnerabilities and taking steps to strengthen legal preparedness, deterrence and defense. At the same time, the instrumentalization of law poses profound challenges to the post-Second World War international legal order. Nations committed to that order cannot afford to respond to hybrid threats by adopting the same means and methods as their hybrid adversaries without contributing to its decay.
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***New***
March
Hybrid Warfare in the Middle East: We Must Do Better Clovis Meath Baker RUSI,
7 March 2017
There is something about the way our opponents confront us, the way they combine different military and non-military measures in campaigns that have clear political objectives that we find really difficult to counter. Inter-state wars are won, on the whole, by the side with the strongest military forces and the deepest pockets. But in the conflicts and confrontations of the past 15 years, the West has not been able to defeat non-state groups such as Daesh (also known as the Islamic State of Iraq and Syria, or ISIS), Al-Qa'ida or the Taliban. It has also not been able to prevent the expansion of Iran's influence and military footprint in the Middle East – despite the West's overwhelming military, economic, financial and diplomatic superiority. This is the problem of hybrid warfare, a strategy that blends conventional warfare, irregular warfare, cyber warfare and subversion, as well as blurring the formal distinction between war and peace.
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***New***
February
Protecting Falsehoods With a Bodyguard of Lies: Putin's Use of Information Warfare Deborah Yarsike Ball NATO Research Paper,,
February 2017
In state-run media, which the vast majority of Russians rely on for news, the Kremlin no longer distinguishes between analysis and propaganda. Russia's use of information warfare to defeat its adversaries has a long history. Lenin was, of course, the master at employing propaganda and agitation (agitprop) to achieve his revolutionary goals (even creating a formal Department for Agitation and Propaganda). In the 1970s and 1980s, KGB agents who had defected to the United States revealed that "espionage was a minor consideration of Russian intelligence. Their focus was controlling the message and it often happened through influencing media and political movements in freer societies." The ascension of Vladimir Putin heralded a qualitatively different approach to information warfare. Putin has engaged in "the most amazing information warfare blitzkrieg we have ever seen in the history of information warfare." Whereas previously information warfare was an adjunct to Russian statecraft, today it is the regime's governing modus operandi.
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***New***
February
Response to A Right to Fight? Ryan Goodman Just Security,,
23 February 2017
As part of the on-going, and most interesting, debate between Professor Goodman and Professor Adil Haque, and the thresshold for IAC and NIAC, Professor Goodman argues that the principle of military necessity, or what AP I calls military objective, "serves as a licensing function of the law of war," with the imposition of "superfluous injury or unnecessary suffering" as the primary prohibition vis-à-vis combatants. Indeed, this is a main reason why distinguishing between war and peace is so important to begin with, and why human rights advocates fret over the broad or inappropriate application of IHL outside of armed conflict. As Prof. Gabor Rona recently noted, "it's wrong to apply the more permissive killing rules of the law of war to situations governed by the more restrictive rules of human rights law," because the status-based targeting regime specifically allowed by IHL would run afoul of IHRL proscriptions "outside of war." The author states that, in his view, a more commonsensical (not to mention historically accurate) reading of AP I's preamble is that the jus belli regimes are distinct, such that armies have an obligation to fight well even if they are not fighting for right. On the matter of targeting, he is of the view that radically new interpretations of extant IHL principles—such as one that casts doubt on the legality of status-based targeting in armed conflict where all IHL requirements have been met—are unhelpful to improving the law. He does not believe we can interpret our way around the fact that there are two sides to IHL: the protections for civilian populations and combatants hors de combat, which sit comfortably astride IHRL, and the authorizations inherent in the conduct of hostilities, which mix uneasily with a post-World War II legal regime based on the sanctity of individual rights. Triggering IHL invokes both aspects of the law. This is a reason to clearly delineate where and when IHL applies, but it is not an excuse to turn a blind eye to the parts of IHL we find unsavoury.
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***New***
February
Russia's Hybrid War And Its Implications For Defence And Security In The United Kingdom Sascha-Dominik Dov Bachmann and Anthony Paphiti Scientia Militaria,,
Vol 44, No 2 (2016)
Russia's illegal annexation of Crimea in 2014 and its open support of the separatists in the bloody conflict taking place in Eastern Ukraine since 2015 together with the global war against ISIL/Daesh in Iraq and Syria have brought a new terminus of conflict terminology into the dictionary: the term of Hybrid War. This article introduces the concept of hybrid warfare and discusses the vulnerabilities arising from the threat of Russia's potential use of such a mode of war fighting against the United Kingdom in their legal context. In addition, the findings of this short contribution will also aid in assessing similar threats posed by non-state actors such as ISIL/Daesh and with regard to evolving new threat scenarios such as China's increasingly menacing stance in the South Sea with its ramifications for Association of Southeast Asian Nations (ASEAN) members. The wealth of opportunity that hybrid warfare offers is extensive and, used well, can provide states with the means to do enormous damage, militarily and/or commercially, with little risk of attribution, particularly in the realm of cyber activity, and with minimum cost in terms of manpower and equipment. The effect can be devastating and can undermine vital institutions of the state. In addition, they stand a good chance of getting away with it.
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January After Iraq: When To Go To War? Professor Nigel Biggar Policy Exchange,
31 January 2017
A lecture given to Policy Exchange which heavily advocates a right to intervene in the affairs of foreign states nd supports the "illegal but legitimate" school of thought. The author asserts that going to war is only morally justified to defend the innocent against grave injustice. Given the British Government's special responsibility for its own people, it has a primary obligation to defend British innocents. However, the British national interest is often bound up with international interests. Further, at least in the eyes of God a Briton's life is no more valuable than that of any other human being. And further still, as a permanent member of the U.N. Security Council the U.K. has a special responsibility to uphold international law and order. For these three reasons, Britain also has a secondary obligation to defend foreign innocents, too. We should never go to war in contempt of international law or the U.N. Optimally we should operate within the law's letter. However, where the manifest deficiencies of international institutions cause compliance to undermine the law's authority, Britain should have the courage to lead international intervention that is widely recognised to be morally necessary, if strictly illegal. The author also argues that in order to sustain military intervention overseas politically, the Government will have to persuade the British people that it is right that they should bear this burden, by appealing to a range of national interests. These interests should include Britain's moral integrity and responsibility. Even if the Cabinet were entirely tone-deaf morally, the British public is evidently not.
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January Eyes Wide Shut: How Russia's Hybrid Warfare Exposes and Exploits Western Vulnerabilities Sascha-Dominik (Dov) Bachmann and Hakan Gunneriusson Georgetown Journal,
18 January 2017
The 2015 Russian National Security Strategy aims to achieve autarky from Western influences on global security, the rule of law, and global trade. By applying a holistic mix of military, political, and economic means to weaken the West, Russia is working hard to strengthen its own role as a global player. Militarily, Russia makes good use of Hybrid War against its Western neighbors, as seen in its intervention in Syria and in its efforts to undermine NATO and the EU. The full spectrum of kinetic and non-kinetic options must be considered, such as economic sanctions, strategic communication of objectives, lawfare, and increased military capabilities. Si vis pacem, para bellum is as relevant today as it was 2000 years ago but it is doubtful that the main Western states will agree on a robust response. With Donald Trump's election as the 45th President of the United States, the prospects of a continuation of former President Obama's policy of "measured" confrontation towards Russia is highly unlikely. This year will see more national elections in Europe and the possibility of Russia/Putin friendly parties gaining popular support. This, in turn, will directly impact the potential of any future comprehensive defensive approach against Russian aggression Europe. In that sense, Russia seems to be winning this battle.
Summary extracted by Aspals

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***New***
January
The United Kingdom's "Modern Law of Self-Defence"—Part II Adil Ahmad Haque Just Security,
13 January 2017
In a previous post, Professor Haque argued that a recent speech by Jeremy Wright QC MP, the Attorney General of the United Kingdom, left quite unclear whether the lawfulness of anticipatory self-defense is supposed to turn on the imminence of an armed attack, the immediate necessity of defensive action, or some combination of the two. In this post, he discusses another respect in which the Attorney General could have done more to clarify his government's legal position. Since Brian Egan, the US State Department's Legal Adviser, took a similar approach in an important speech of his own, Professor Haque's concerns apply to the US legal position as well. Ideally, the Attorney General would distinguish between (1) substantive legal rules; (2) evidentiary standards; and (3) reliable evidence. In other words, he would pose three distinct questions: First, under what factual circumstances does a State have a legal right to use defensive force? Second, given that States are not omniscient, when is the available evidence that these factual circumstances exist sufficiently strong as to warrant the use of defensive force? Third, what constitutes reliable evidence that these factual circumstances exist?
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January The United Kingdom's "Modern Law of Self-Defence"—Part I Adil Ahmad Haque Just Security,
12 January 2017
The Attorney General of the United Kingdom gave a speech on 11 January 2017, intended to clarify his government's understanding of the international law framework governing the use of armed force.From the outset, the speech fails to distinguish between two very different interpretations of the imminence requirement. The author considers the AG conflated the imminence of an attack with the immediate necessity of defensive action. The question "Is an attack imminent?" is quite distinct from the question "is defensive action necessary now?" On one view, international law prohibits the use of defensive force until an armed attack is about to occur. On this view, the lawfulness of defensive force turns on when the armed attack will occur unless it is prevented. On a very different view, international law prohibits the use of defensive force until the last window of opportunity to prevent the armed attack is about to close. On this view, the lawfulness of defensive force turns on when defensive action must be taken for it have a reasonable chance of success. The author considers the Attorney General should have distinguished between the imminence of an armed attack and the immediate necessity of defensive action, and explained which of these two standards determines the lawfulness of defensive force.
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January The UK's Most Recent Volley on Defensive Force Monica Hakimi EJIL Talk!,
12 January 2017
The legal position that Attorney General Wright presented on 11 January 2017 is similar to the one that the United States has advanced in recent years. The author suggests the core elements of the UK claim are:
  The use of force is sometimes permissible to defend against an imminent attack. For an attack to be imminent, the threat must actually be operational: "It is absolutely not the position of the UK Government that armed force may be used to prevent a threat from materialising in the first place."
  The attack's imminence is part of why defensive force is necessary. But imminence alone does not make it necessary. For defensive force to be necessary, other options for defending against the anticipated attack, including law enforcement options, must be inadequate.
 Defensive force is permitted against an imminent attack, even if the perpetrators are not state agents. Where non-state actors are involved, the relevant inquiry is whether the attack is being planned in another state that is unable or unwilling to prevent it.
Wright specifically referenced IHL and not IHRL. Reading between the lines, the author thinks he is hedging his bets but ultimately suggesting that, when the United Kingdom uses force in self-defense, IHRL either does not apply or is defined by IHL. That view of IHRL would be contentious in at least some cases in which it might be applied. (It's worth noting that, although Wright says in the above-quoted text that lethal action is permissible only when "there is no other option," he elsewhere uses slightly looser language—saying that the relevant standard is whether defensive action is "the only feasible means to effectively disrupt [the] attacks.")
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January Attorney General's speech at the International Institute for Strategic Studies The Rt Hon Jeremy Wright QC MP UK Government Web,
12 January 2017
In a speech to International Institute for Strategic Studies, the Attorney set out when it is lawful to use force in self-defence – whether of the UK, or of our allies. And to set out, in greater detail than the Government has before, how the UK applies the long-standing rules of international law on self-defence to our need to defend ourselves against new and evolving types of threats from non-state actors. The UK should and will only use armed force, and will only act in self-defence, where it is consistent with international law to do so. International law sets the framework for any action taken by Sovereign States overseas, and the UK acts in accordance with it. The Attorney discusses some of the criteria that he and his predecessors have used in determining whether a particular proposed course of action is lawful.
Summary extracted by Aspals

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January International Law and the US Response to Russian Election Interference Ryan Goodman Just Security,
5 January 2017
Allegations about Russian hacking of the US presidential election have led to claims and counterclaims, allegations and denials. In this most interesting article, Professor Goodman looks at the applicable international law in the context of any retaliatory action by the United States and whether the alleged election meddling constitutes a use of force.
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