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Date Title Author Reference
***New***
July 2018
A Fine Line between Protection and Humanisation: The Interplay between the Scope of Application of International Humanitarian Law and Jurisdiction Over Alleged War Crimes Under International Criminal Law Rogier Bartels Yearbook of International Humanitarian Law ,
Volume 20 (2017)
International humanitarian law (IHL) provides limits to the conduct of warring parties during armed conflicts. If these limits are crossed, international criminal law (ICL) can address alleged violations of IHL. When certain conduct falls outside the scope of jurisdiction over war crimes it may result in impunity. International courts and tribunals have therefore taken a very broad approach to their jurisdiction, including with regards to the concept of non-international armed conflict, which has been expanded well beyond the initial intention of States. While an expansive approach to the application of IHL may be desirable after the fact, in order to ensure that atrocities can be prosecuted as war crimes, applying IHL too broadly to situations on the ground may not result in better protection of those affected by violence. Although the protective function of IHL remains of paramount importance, States nowadays also extensively rely on the permissive aspect of IHL that allows targeting of military objectives, combatants and other persons taking a direct part in hostilities. The present chapter addresses the tension between the desire to expand the jurisdiction over war crimes and the consequential impact on IHL. It does so by specifically looking at the manner in which international courts and tribunals have pronounced on the material scope of IHL.
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***New***
May 2018
Self-Defense Against Self-Defense, In Syria And Beyond Adil Ahmad Haque Just Security,
31 May 2018
For many years, the United States and some of its allies have taken the view that one state (say, one of them) may use armed force on the territory of another state (say, Pakistan or Syria), without its consent, if the territorial state is "unwilling or unable" to prevent a non-state armed group from launching armed attacks from its territory. For almost as many years, others have objected that the U.S. position fails to even address the most basic questions that any viable doctrine of self-defense must persuasively answer: what, exactly, happens to the territorial state's right not to have armed force used on its territory and what, exactly, happens to the territorial state's right of self-defense against an armed attack by the intervening state? Why should international law permit the intervening state to prefer its own safety to that of the territorial state, but forbid the territorial state from doing so in turn? Perhaps strong states will continue to use force on the territory of weaker states who could not defend themselves if they tried. Perhaps near-peer militaries will continue to defuse tensions as they arise. Or perhaps one day, some state will misstep, and the explosion will be visible for all to see.
Summary extracted by Aspals

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***New***
May 2018
Germany's Research Report on the Syria Strikes: Unlawful Acts of Reprisal Dennis Schmidt Just Security,
10 May 2018
Germany's Chancellor Angela Merkel issued a statement backing coordinated strikes against targets related to Syria's chemical weapons program. According to Merkel, the intervention was "necessary and appropriate to preserve the effectiveness of the international ban on the use of chemical weapons and to warn the Syrian regime against further violations." The formulation was cleverly crafted, allowing the Chancellor to express political support for her NATO-partners without passing judgement on the strikes' contentious legal status. The Wissenschaftliche Dienste functions as the research arm of Germany's federal legislative chamber, providing background information, policy briefings and extensive legal expertise to its members, regardless of their party affiliation. As a parliamentary branch agency, its official mandate is of a purely consultative nature. The 11-page report it produced on the international legal dimension of the Syria strikes is significant in many ways. It not only challenges, though somewhat implicitly of course, Merkel's initial statement, but also offers some useful reflections on the use of force in international relations. Its overall verdict on the intervention is clear: as an "armed reprisal cast in the veil of humanitarianism," the use of force constituted a violation of international law and UN Charter Article 2(4), respectively.
Summary extracted by Aspals

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***New***
May 2018
Something is Not Always Better Than Nothing: Against a Narrow Threshold Justification for Humanitarian Intervention David Hughes and Yahli Sherehshevsky Opinio Juris,
7 May 2018
Western forces have again attacked Syria following the suspected use of chemical weapons by the al-Assad regime. As in 2013 and 2017, international lawyers largely agree that the recent US, French, and British-led operation is illegal. Yet the recent strikes against chemical weapons facilities in Damascus and Homs are part of an enduring narrative concerning the legality and efficacy of unilateral (or unauthorized) humanitarian intervention (UHI). Within this discourse, a majority of legal scholars assert that humanitarian intervention – devoid of Security Council authorization – is legally invalid. However, though many states share this view, an increasing group now employ justificatory rhetoric in defense of the recent attacks. This rhetoric signals a potential shift. Following the NATO-led intervention in Kosovo, states and scholars vindicated the military response through universal appeals to human rights and justice. This language often remained non-specific. More recently, however, the language assumes precision. It abandons general assessments of an atrocity's gravity and favors identification of particular incidents – like the use of chemical weapons – as a trigger to legitimize or legalize humanitarian intervention. The response of international lawyers has been divided. Divergence from black-letter adherence to the use of force regime entails significant cost. It may only be justified by reasoning that these costs are less than the alternative costs incurred by failing to address the dictates of reality. The normative case for humanitarian intervention is contingent on a common-sense legitimacy argument rather than only upon the provision of a workable test or standard. The case for humanitarian intervention must subscribe to a general notion of gravity to persuasively offer an attractive alternative to a formal reading of the Charter. Proponents of humanitarian intervention must adhere to their internal logic to strengthen the genuine humanitarian interests, moral coherence, and legal viability of their respective positions.
Summary extracted by Aspals

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***New***
20 April
The Syria Strikes and Brazil's Robust Defense of the Legal Prohibition on the Use of Force Alex Moorehead Just Security,
20 April 2018
As the strikes by the United States, the United Kingdom, and France on Syria last week demonstrate, a select group of countries led by the US are asserting an increasingly broad and controversial authority to use force overseas, on a flawed legal basis. While the issue at stake with the recent Syria strikes is when is it lawful for one country to use force against another, the US and the UK have also argued—publicly and also on a highly dubious legal basis—that they have a broad right to use force in self-defense against non-state actors. But what do other countries think? While the views of the US and the UK have received a lot of attention, the position of other states on an issue important to all members of the United Nations has been much neglected.
Summary extracted by Aspals

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***New***
April 2018
The Legality of the UK's Air Strikes on the Assad Government in Syria Professor Dapo Akande Opinion,
16 April, 2018
Professor Akande, Professor of Public International Law & Co-Director, Oxford Institute for Ethics, Law & Armed Conflict, at the University of Oxford, gave a detailed opinion which contradicted the UK Government's legal case for attacking Syria. The International Court of Justice has held that prohibition of the use of force is also a principle of customary international law (Nicaragua Case 1986). The United Nations Charter provides two explicit exceptions to the prohibition of the use of force. First, states may use force in individual or collective self-defence (Article 51). Second, force may also be authorized by the UN Security Council acting under Chapter VII of the Charter, to maintain international peace and security. In addition, a use of force on the territory of a state that is consented to by the government of that state will not be in breach of the prohibition of the use of force. The Government advocated its justification as humanitarian intervention. However, International law does not permit individual states to use force on the territory of other states in order to pursue humanitarian ends determined by those states. There is very little support by states for this legal position that so-called doctrine of "humanitarian intervention" is an established principle of customary international law.
The responsibility to protect doctrine "R2P" does not change this position in any way. This requires collective action, through the Security Council, should peaceful means fail. In other words, forceful action to prevent mass atrocity crimes is reserved to the Security Council. The most significant problem with the government's legal position is that it would require a radical restructuring of the most fundamental rules of the international legal order.
Summary by Aspals

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***New***
April 2018
The Syria Strikes: Still Clearly Illegal Marko Milanovic EJIL Talk!,
15 April, 2018
The strikes conducted in April 2018 against Syrian government targets by the US, UK and France are as manifestly illegal as the strikes conducted by the US alone last year. With one exception, the strikes are identical in the arguments made by the intervenors, in the reactions to those arguments by other states, in the deliberate use of silence and ambiguity, and in the consequent inability of this breach of international law to actually cause a shift in international law. Like last year, the US (and France) failed to put forward any legal argument as to the source of their authority to act under the UN Charter system of the prohibition on the use of force. Prime Minister May said that there was 'no practicable alternative to the use of force to degrade and deter the use of chemical weapons by the Syrian Regime'. The language of deterrence used has the flavour of armed reprisals. Not only are such reprisals widely regarded as unlawful, but none of these governments actually clearly sets out an argument on the basis of reprisals. The fact that both the intervenors and their supporters studiously avoid the language of legality confirms that they do not regard the Charter as now encompassing an exception to the prohibition of armed reprisals against states using weapons of mass destruction. The UK did now articulate a clear legal basis for its use of force: the doctrine of humanitarian intervention. The fundamental issue here is what exactly is the humanitarian catastrophe that requires a unilateral armed response, i.e. how the scope of that disaster is to be defined, because it is only then that we could do a necessity/proportionality analysis. The UK's humanitarian intervention argument is so bad even on its own terms that it is clear why the US and France chose to stay silent.
Summary by Aspals

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***New***
April 2018
Bad Legal Arguments for the Syria Airstrikes Jack Goldsmith, Oona Hathaway Lawfare,
April 14, 2018
On 13th April, United States, United Kingdom, and France launched a coordinated attack in Syria, reportedly aimed at sites related to Syria's chemical weapons program. This article examines the law relating to the US domestic legality, under the Authorization for Use of Military Force (AUMF) 2001 and 2002, International Law, the so-called doctrine of "humanitarian intervention", the minority view of three members of the UN Security Council and the Kosovo-type justification that the strike is "illegal but legitimate". The conclusions of the authors is that the three nations involved acted contrary to international law.
Summary by Aspals

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***New***
April 2018
Aggression and Criminal Responsibility (for Whom?) Nikola Hajdin Opinio Juris,
April 12, 2018
On December the 14th, 2017, the Assembly of States Parties to the Rome Statute adopted a resolution that activates the International Criminal Court's (ICC) jurisdiction over the crime of aggression (CoA). After the adoption of aggression amendments in 2010 in Kampala, controversy arose regarding the scope of its jurisdiction (for a brief overview on what has been happening in the last seven years. In this post, however, the author draws attention to yet another of many conundrums that the Office of the Prosecutor will ultimately have to deal with—namely, the outer limits of criminal responsibility for the CoA.
Summary extracted by Aspals

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***New***
April 2018
Unlawful Reprisals to the Rescue against Chemical Attacks? Mary Ellen O'Connell EJIL Talk!,
April 12, 2018
Armed reprisals are uses of military force that follow an incident, usually to punish or in retaliation or revenge and which do not fit the exception to the prohibition on the use of force for self-defence. See the same conclusion here and here. Reprisals need Security Council authorization to be lawful. The Security Council has never authorized a reprisal and will not in the case of Syria. There should be only one option for States committed to the rule of law: Use the means available in international law to seek accountability for law violations. It is a dangerous moment in history to do anything else.
Summary extracted by Aspals

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March 2018 Drones, state terrorism and international law Ruth Blakeley Critical Studies on Terrorism,
SSN: 1753-9153 (Print) 1753-9161
27 Mar 2018
The conventional wisdom among US foreign policymakers is that drones enable precise strikes, and therefore limit collateral damage. In contrast, critics point out that many civilian casualties have ensued, and they variously cite poor intelligence and imprecision of the strikes as reasons for this. Critics have also raised concerns that the US and its allies are engaging in "lawfare" to legitimise violations of human rights law. As such, some have questioned whether academic engagement with the legal questions surrounding targeted killings amount to collusion with state attempts to legitimise human rights violations. This article will argue that by conceptualising the targeted killings programme as a form of state terrorism, we are better equipped to provide a critical analysis of the drones programme within the context of a long history of violence and terrorism which has underpinned the imperial and neo-imperial projects of the UK and US. The article will then argue that there are important similarities between the targeted killings programme, and previous UK and US counter-insurgency operations, including prior uses of air power, and operations involving the internment of terror suspects, and the targeting of specific individuals for interrogation and torture or disappearance. Common to these programmes is that they are forms of policing aimed at crushing rebellions, stifling disorder and constructing or maintaining particular political economies, through terror. Also common to these programmes are the attempts made either to conceal illicit actions, or in the event they are exposed, to shroud them in a veil of legitimacy. The article concludes by offering some brief reflections on why we should not abandon the quest to resolve the thorny legal questions around the targeted killings programme.
Summary by Author

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March 2018 The current crisis in the Persian Gulf in the context of hybrid warfare Sascha-Dominik Bachmann Australian Defence Force Journal
Issue No. 204, 2018
at p.53
The Middle East is going through seminal geographical and political changes and challenges. In the end, the Arab Spring did not lead to the advent of an Arab renaissance of democracy and good governance but only to increased regional instability. The latter has been highlighted by the rise of Islamic State (IS), firstly in Syria and Iraq, and then Libya, where it managed to exploit the vacuum left after Qaddafi. The crisis in the GCC has laid bare the region's insecurities and vulnerabilities, against the backdrop of new threats to the region's stability, notably the emergence of so-called hybrid threats and hybrid warfare. This has repercussions far beyond the region for economic, strategic and religious reasons. The arrival of new strategic competitors to US interests in the region, including China and Russia, and the return of Turkey as the successor of the former colonial occupier of Arab lands, the Ottoman Empire, have complicated the situation. The author discusses the present crisis within the context of security and conflict-related observations from the region, being played out through hybrid warfare, concluding with a brief synopsis of Qatar's potential countermeasures.
Summary extracted by Aspals

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March 2018 "License to Kill" in Salisbury: State-sponsored assassinations and the jus ad bellum Tom Ruys Just Security,
15 March 2018
The Salisbury attack is believed to be the latest in a string of assassination attempts allegedly orchestrated by Russia in recent years. The Prime Minister has asserted that, absent a satisfactory explanation from Russia, the action is regarded as an "unlawful use of force by the Russian State against the United Kingdom". The UK has also referred to an "attack" on British soil – without, however, speaking of an "armed attack". The same is true for the statement issued by the North Atlantic Council. The author concludes this was an unlawful use of force as any deliberate projection of lethal force onto the territory of another state can trigger Article 2(4) of the UN Charter. The more difficult question is whether the Salisbury incident can simultaneously be regarded as an "armed attack" under Article 51 UN Charter. Inasmuch as one holds the view that the "killing of a single individual" is insufficiently grave to amount to a "use of force", it follows a fortiori that such an act cannot amount to an "armed attack" triggering the right of self-defense. Yet even if the Salisbury attack is regarded – correctly, in the present author's view – as a "use of force," the traditional interpretation of Article 51 of the UN Charter nonetheless assumes that a "gap" exists between the "use of force" and an "armed attack," and that only the "most grave" uses of force trigger Article 51, being the position that was famously set forth by the International Court of Justice (ICJ) in the Nicaragua case (at § 191).
Summary extracted by Aspals

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March 2018 The Jus ad Bellum's Regulatory Form Monica Hakimi American Journal of International Law, Vol. 112 ,
2018
Though an extensive body of work addresses the substantive content of the jus ad bellum, little attention has been paid to its regulatory form—meaning the modesfor expressing its content as concrete directives that structure legal arguments and decisions. By most accounts, its content takes the form of a blanket prohibition and a small handful of exceptions. The same general standards are thought to govern all situations involving cross-border force and to determine whether any particular operation is lawful. This Article argues that an alternative form of regulation is embodied in decisions at the UN Security Council that condone but do not formally authorize specific military operations. Such decisions confer authority on the operations at issue; they make the operations easier to justify and harder to challenge in law. They do so, even when they go beyond what the general standards would permit. Recognizing that they are both part of the jus ad bellum and different in kind from regulation through the general standards should change how we think about and assess this body of law.
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March 2018 Explaining Civilian Attacks: Terrorist Networks, Principal-Agent Problems and Target Selection Max Abrahms, Matthew Ward, and Ryan Kennedy Perspectives on Terrorism,
ISSN 2334-3745 (Online)
February 2018
Terrorist groups exhibit variation in their targeting choices. Why do some groups direct their violence against civilians while others limit this occurrence? This study analyzes the network relationships between terrorist groups to elucidate their targeting behavior. Drawing upon insights from the organizational ecology and conflict literatures, we predict that terrorist group affiliates will be significantly more likely than their parent group to attack civilian targets. Our original principal-agent theory consistently outperforms extant explanations in a multi-method analysis of 238 terrorist groups from 1998 to 2005. These results shed new light on why certain terrorist groups are more likely than others to target civilians.
Summary by Authors

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February 2018 Autonomous Weapon Systems, Drone Swarming and the Explosive Remnants of War Maziar Homayounnejad TLI Think! Paper 1/2018 [SSRN],
December 6, 2017
Lethal Autonomous Weapon Systems (LAWS) are essentially weapon systems that, once activated, can select and engage targets without further human intervention. While these are neither currently fielded nor officially part of any nation's defence strategy, some States and defence contractors are currently developing LAWS for future deployment. In particular, swarming munitions have garnered a great deal of interest. These will consist of dozens, hundreds or (potentially) thousands of micro-drones that will operate collaboratively and as a coherent whole, to outsmart, saturate and overwhelm enemy defences. The aim is that even in the face of counter-measures and heavy defensive fire, at least a few 'leakers' will get through to take out their target. Yet, the flipside of such a weapon system is that large numbers of 'non-leakers' will succumb to defensive fire and will remain on former battlefields. Should they fail to explode as intended, these micro-drones will very likely become explosive remnants of war (ERW) and will pose a danger to civilians; one that will weigh more heavily on young children, especially in view of the munitions' striking resemblance to toy aeroplanes.
Summary by Author

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February 2018 "Reasonable Certainty" vs "Near Certainty" in Military Targeting–What the Law Requires Michael J. Adams and Ryan Goodman Just Security,
15 February 2018
The White House's reported retirement of a set of policy restrictions on the use of lethal action against terrorist targets should bring into focus what constraints should apply—as a matter of law—to targeting operations that take place away from active war zones. According to public accounts, the previous targeting restrictions—the Presidential Policy Guidance—imposed a policy overlay that required US forces to meet a much higher standard than the laws of war require.
That standard assessment is, however, grounded in a misunderstanding. Legal obligations under the law of war, on their own, may approach the level of certainty required by the policy guidance in the same situations in which the policy itself applied in certain circumstances, including when using force away from States that are commonly recognized as active war zones. In other words, in certain contexts the law of armed conflict may require a near certainty that the proper target is being engaged and that civilian casualties are minimized. If the White House now allows the Defense Department to peel back the "near certainty" standard, it will be the responsibility of U.S. forces to once again maintain the baseline imposed by international law.
Summary extracted by Aspals

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January 2018 The Turkish Operation in Afrin (Syria) and the Silence of the Lambs Anne Peters EJIL Talk!,
30 January 2018
On 20th January 2018, the Turkish military started to attack the Kurdish-populated region of Afrin in Syria ("Operation Olive Branch"). With its letter to the Security Council of 22nd January 2018, Turkey justified this action as self-defence in terms of Art. 51 UN Charter. The relevant passage of the letter is: "[T]he threat of terrorism from Syria targeting our borders has not ended. The recent increase in rocket attacks and harassment fire directed at Hatay and Kilis provinces of Turkey from the Afrin region of Syria, which is under the control of the PKK/KCK/PYD/YPG terrorist organization, has resulted in the deaths of many civilians and soldiers and has left many more wounded." (UN Doc. S/2018/53). The author discusses whether it is controversial that armed attacks by the YPG, a non-state actor, suffice to trigger self-defence in terms of Article 51 UN Charter and underlying customary law. Secondly, another condition of lawful self-defence seems not to be fulfilled. In order to qualify as an armed attack in terms of Art. 51 UN Charter, the asserted attacks would have needed to surpass a threshold of gravity in scale and effect. In the 1986 Nicaragua judgment (ICJ, para. 191), the ICJ distinguished between 'the most grave forms of the use of force' and 'other less grave forms' of the use of force. The author comments on the silence of the international community and the repercussions it will have on the international legal order. Opening the door of Art. 51 UN Charter to "the threat of terrorism", as the Turkish letter has it, carries a huge potential for escalation of violence and for abusive invocations of self-defence.
Summary by Aspals

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January 2018 Hybrid Threats and the United States National Security Strategy: Prevailing in an "Arena of Continuous Competition" Aurel Sari and Arnis Lauva EJIL Talk!,
19 January 2018
If the line between war and peace is becoming increasingly blurred, as it is widely claimed, what is the appropriate response? The United States is accustomed to viewing the world through the binary lens of war and peace, yet in reality, warns the new National Security Strategy, international relations is an "arena of continuous competition" (p. 28) The fluidity of war and peace is central to the vocabulary of "gray zone conflict" and "hybrid warfare". NATO has declared itself ready in its Warsaw Summit Communiqué (para. 72) adopted in July 2016 to counter hybrid warfare as part of collective defence, including by invoking Article 5 of the North Atlantic Treaty. From a legal perspective, the Warsaw Communiqué may be seen as a sign that the Allies are willing to reassess the concept of armed attack in the light of gray zone and hybrid warfare tactics.
Summary extracted by Aspals

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January 2018 The Good Operation - A handbook for those involved in operational policy and its implementation The Chilcot Team Ministry of Defence,
2018
The handbook is designed to prompt its readers to ask the right questions as they plan for and execute a military operation, drawing in particular on the lessons of the 2016 Iraq Inquiry (Chilcot) Report, but also on other reports and on the experience of colleagues. While some elements of the handbook may appear self-evident, sometimes it's important to restate the obvious. Though aimed primarily at MOD decision-makers, it is intended to have utility across the wider national security community. This is not intended to be a step-by-step guide, to be followed slavishly in all circumstances, but rather an outline of a general thought process. It is not military doctrine, though it complements it. It seeks to help with operations in all three environments, maritime, land and air, as well as domains such as cyber and space; whether 'kinetic' or 'non-kinetic'; and whether relatively straightforward or complex, demanding and politically difficult. It aligns with military values and the Civil Service Code.
Summary extracted by Aspals

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January 2018 The Israeli Strike on Syria and the Prohibition on the Unilateral Use of Force Oona Hathaway Just Security,
January 16, 2018
On Tuesday, January 9, 2018 Israel reportedly attacked an arms depot at a Syrian military base near Damascus with both jets and ground-to-ground missiles. The strikes have thus far met with deafening silence from the international community and from Israel itself. This silence is a worrisome sign for the health of the prohibition on unilateral use of force and the international legal order that depends on it. Because Israel has not acknowledged, much less defended, the strikes, it is difficult to know what argument its lawyers would make. It may very well be that Israel knows that the strikes are illegal and that is why it has not acknowledged them or attempted to explain or defend them, other than obliquely. Does that mean we should be less concerned? The refusal by a striking state to acknowledge or defend attacks that violate the prohibition on unilateral uses of force does not erase the damage they do to that rule. Instead, such strikes and their disregard for international law put the legal order at risk at a moment when it is already under assault from many quarters. Indeed, the Israeli strikes over the past year may be a sign that the Trump administration is willing to tolerate actions by allies that violate the UN Charter. (Don't forget, that the Trump administration undertook its own illegal strikes on Syria in April 2017). And that may be the most worrisome sign of all.
Summary extracted by Aspals

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January 2018 Shovels: Lawful Weapons or War Crime? Laurie Blank Lawfare,
January 16, 2018
The senior enlisted advisor to the Chairman of the Joint Chiefs of Staff suggested in a rallying cry to U.S. forces on Jan. 9:
[The Islamic State] needs to understand that the Joint Force is on orders to annihilate them. . . . if they choose not to surrender, then we will kill them with extreme prejudice, whether that be through security force assistance, by dropping bombs on them, shooting them in the face, or beating them to death with our entrenching tools.
In fact, though gruesome, the use of a shovel to kill an enemy in combat is entirely within the bounds of the law. The law of armed conflict—or international humanitarian law, as it is also known—governs the conduct of hostilities during wartime and is therefore the applicable legal regime for any hostilities between the U.S. and the Islamic State or U.S. treatment of Islamic State fighters in combat or after capture.
Summary extracted by Aspals

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January 2018 Alseran v MOD and the Legal Risks in Treating All Captives as Prisoners of War Aurel Sari Just Security,
January 4, 2018
In December 2017, the English High Court delivered its judgment in favour of the claimants in Alseran and Others v Ministry of Defence, a decision representing the latest instalment in the long line of cases brought on human rights grounds against the UK Ministry of Defence relating to operations in Afghanistan and Iraq. The case involved four Iraqi claimants who alleged that they were unlawfully detained and mistreated by British forces. The sole presiding judge, Mr. Justice Leggatt, found there was no basis in international law for Alseran's interment at Camp Bucca. He also held that the review process adopted by British forces to determine the status of captured persons rested on a misunderstanding of the Geneva Conventions of 1949. Dr Sari examines the judgment with a keen eye and questions the court's assessment of combatant status and prisoner of war status, which Dr Sari rightly points out are distinct matters. To avoid detaining captured persons unlawfully, detaining authorities must set up a screening mechanism that conclusively determines, with minimum delay, the legal position of all individuals whose status is in doubt and who have not engaged in belligerent acts.
Summary extracted by Aspals

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January 2018 Customary International Law and the Addition of New War Crimes to the Statute of the ICC Dopo Akande EJIL: Talk!,
2 January 2018
In addition to the activation of the International Criminal Court's jurisdiction over the crime of aggression, the recently concluded Assembly of States Parties (ASP) to the Statute of the ICC, also adopted three amendments adding to the list of war crimes within the jurisdiction of the Court. These new war crimes relate to the use of prohibited weapons in international as well as non-international armed conflicts. The proposal to add these new war crimes to the Rome Statute was made by Belgium. However, although the newly added war crimes mirror prohibitions which already exist for states in relevant treaties, these Belgian proposals proved to be more controversial than those with regard to Kampala war crimes amendments. As a result of the absence of general agreement that the proposed crimes were all crimes under existing customary international law, the draft resolution presented to the Working Group, and that ultimately adopted by ASP, did not include a reference to customary international law (see para. 12 of the Report of the Working Group).
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