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Date Title Author Reference
***New***
May 2019
What Are the Limits on Lawfare? Craig Martin Opinio Juris,
5 May, 2019
Not nearly enough attention is being paid to the importance of developing principled limits on the conduct of lawfare, and that it is dangerous to urge the practice of lawfare in the absence of such limits. There is not even a clear consensus on the meaning of the term "lawfare." Generally speaking, it is understood to mean the use of law, or exploitation of aspects of a legal system, to achieve tactical or strategic advantages in the context of conflict. As the sub-title of Orde Kittrie's book on the subject suggests, lawfare is the use of "law as a weapon of war." To instrumentally press law into the service as a weapon of war, to operationalize it to achieve tactical or strategic objectives, is to necessarily subordinate its internal imperatives to military and war-policy priorities. There is a real risk that the rule of law and the integrity of the legal system, both domestic and international, could be thereby subordinated to operational imperatives. If the use of law will further some tactical or strategic advantage in the short term, who is worrying about whether such use will do violence to the integrity of the legal system in the long term?
Summary extracted by Aspals

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***New***
April
Russia and China's ongoing 'hybrid warfare' – When does it cross the line? Hakan Gunneriusson Lima Charlie,
April 26, 2019
With the subtle and clandestine methods of 'hybrid warfare' available to any nation, from disinformation to influence operations to election interference, Russia and China continue to be very creative. Some argue that amid the increased onslaught of hybrid warfare tactics by Eastern powers, Western style democracies are facing a threat of extinction. But what is the tipping point, where push comes to shove, when an ally is facing more than just a domestic problem, and a nation is 'under attack'? And if such an 'attack' involves a member state, or partner, at what point would NATO intervene?
Summary extracted by Aspals

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***New***
April
Extraordinary Rendition and Human Rights - Examining State Accountability and Complicity Suzanne Egan Academia (e-book),
April, 2019
Extraordinary rendition involves the extrajudicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there is a real risk of torture or cruel, inhuman or degrading treatment. It is a practice that is primarily identified with the CIA's Detention and Interrogation Programme which was implemented in the aftermath of 9/11 with the active and passive cooperation of many States in Europe. In recent years, there have been widespread demands for "accountability" on the part of European States for their "complicity" in extraordinary rendition. This chapter highlights how accountability can take different forms and how the concept of "complicity" itself is also a complex concept requiring consideration of multiple factors. It points to the focus of the book as an effort to determine when States can be held legally accountable for complicity in extraordinary rendition. "Legal accountability" is understood as a concept that demands an assessment of whether a State is responsible for a breach of the law and crucially the provision of redress or acknowledgement of state responsibility. The focus on legal accountability is justifiable on the basis that a finding of legal responsibility in the context of a legal accountability process inevitably increases the odds of political accountability for complicit States.
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***New***
April
Accountability for War Crimes in Syria: The "Criminalization" Confusion - Part I Oona Hathaway, Paul Strauch, Beatrice Walton and Zoe Weinberg Just Security,
April 11, 2019
No international court or tribunal currently has jurisdiction over the vast crimes committed in Syria since 2011. It seems unlikely at the moment that Syria itself will provide an accounting, and the prospect of the United Nations Security Council agreeing to establish a new tribunal or refer the Syria situation to the International Criminal Court (ICC) appears slim. As a result, domestic courts, mainly in Europe, have taken the lead in pursuing criminal accountability for crimes committed in Syria. The International, Impartial, and Independent Mechanism (IIM), established by the UN General Assembly in 2016, is also beginning to assist domestic Syria-related prosecutions.
As domestic courts outside of Syria begin to take on responsibility for prosecutions, it has become clear that there remains significant confusion over the proper scope of a war crime—that is, what, exactly, is a war crime, and how do we know? This matters because most domestic courts will exercise universal jurisdiction only over war crimes and crimes against humanity, or have statutes specific to "war crimes" prosecutions. As a result, some crimes may slip through the cracks if courts adopt an excessively narrow understanding of war crimes.
Summary extracted by Aspals

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***New***
April
The obligation to investigate after a potential breach of Article 2 ECHR in an extra-territorial context: Mission impossible for the Armed Forces? Dr Noelle Quenivet Netherlands Quarterly of Human Rights,

3 Jan 2019
The growing number of military operations conducted by States party to the European Convention on Human Rights (ECHR) abroad has led to a concomitant surge in court cases, notably relating to the duty to investigate an attack resulting in the death of an individual. Using the example of the British armed forces abroad, this article contends that the principles enunciated by the European Court are difficult, sometimes impossible, to fulfil when military operations are carried out abroad. The Court at times appears to fail to recognise the inherent challenges faced by States in complying with these principles. This article thus suggests that the Court offers a more flexible approach towards compliance with the procedural aspects demanded under Article 2 ECHR, especially with regard to the initial phases of the application of Article 2 ECHR, when the armed forces are directly implicated in the procedure.
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***New***
2 April
An Insider's View of the Life-Cycle of Self-Defense Reports by UN Member States - Challenges posed to the international order Pablo Arrocha Olabuenaga Just Security,
2 April
On 31 October 2018, responding to the movement of migrants from Central America toward the southern US border, President Donald Trump tweeted: "The Caravans are made up of some very tough fighters and people. Fought back hard and viciously against Mexico at Northern Border before breaking through. Mexican soldiers hurt, were unable, or unwilling to stop Caravan. Should stop them before they reach our Border, but won't!" (emphasis added). Later, in February 2019, President Trump declared a national emergency on the border with Mexico. The words used by President Trump and the circumstances around them are worryingly similar to the recent invocation by some States, including the United States, of the so-called "unwilling or unable" standard to justify the use of military force against non-state actors in other State's territory as though such conditions satisfy Article 51 of the UN Charter.
While the application of the "unwilling or unable" standard to international law on the use of force has generated discussion amongst academics and commentators, less well known is how controversial this doctrine remains amongst States. This is partly because of the procedural secrecy and inefficiency in the way the UN Security Council addresses these issues.
Summary extracted by Aspals

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March ISIS members detained by Kurdish forces in Syria: Operational and legal challenges Alessandra Spadaro
(Ezequiel Heffes)
Armed Groups and International Law,
March 13, 2019
The Kurdish-led and US-backed Syrian Democratic Forces (SDF) are currently detaining over 3000 ISIS members, including foreign fighters and their families, in detention centers and camps in the North of Syria. Among them are British teenager Shamima Begum and her Dutch husband, Yago Riedijk, who have recently made headlines. Captured ISIS members in the hands of the Kurds come from over 46 countries, but – with some exceptions – most of these countries refuse to repatriate their citizens for various reasons despite numerous calls to do so by the SDF and the US. Some European countries are even stripping ISIS members of their citizenship in order to prevent their return.
While the responsibility of states supporting the detention operations of the SDF has been addressed elsewhere, this post focuses on the practical and legal challenges for the detaining armed groups by analyzing four different options at their disposal: transfer, release, continued detention, and trial.
Summary extracted by Aspals

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February Better Safe Than Sorry: Transferring Detainees Safely to Coalition Partners Tilman Rodenhauser Lawfare,
18 February, 2019
In many of today's conflict theaters, international coalitions of states support local authorities in fighting various armed groups. If the supporting states have boots on the ground, almost inevitably they will take detainees or be present when their partners do so. For operational, legal or political reasons, however, they rarely have an interest in keeping detainees under their control for long. Rather, they tend to transfer detainees to the local authorities or coalition partners. While operationally opportune and often requested by the territorial state, in some situations these transfers bear the risk of bringing detainees into the hands of authorities that might not respect fundamental humanitarian norms. Such situations raise acute legal and policy questions.
Summary extracted by Aspals

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4 February Military Justice: Second-Rate Justice Emma Norton Liberty Report,
January 2019
Hostility towards the Human Rights Act is no coincidence. It has led to some terrible abuses or serious failings being revealed that would otherwise have remained hidden or for which there would have been no investigation or accountability whatsoever. Liberty continued with its work and the more it investigated the way in which service personnel were being treated, the more it discovered that some of the most basic principles of fairness that civilians took for granted, did not necessarily apply to them and in ways that could not be justified. Liberty learned that a Commanding Officer could investigate sexual assaults for him/herself and was not legally obliged to report them to the police; that there was no reliable data on rates of sexual offending in the armed forces; or that victims of rape were not being told of their right to seek support from expert civilian sources of help. Libety learned that conviction rates for rape in the Court Martial paled in comparison to civilian conviction rates and that the Service Police were not subject to the same kind of independent oversight as civilian police. This all painted a picture of second-rate justice for service personnel.
Summary extracted by Aspals

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30 January Are Sieges Prohibited under Contemporary IHL? Gloria Gaggioli EJIL Talk!,
30 January 2019
Contemporary armed conflicts in Syria, Yemen or Iraq have seen a resurgence of sieges of cities and other densely populated areas. This ancient—some would say archaic or medieval—method of warfare is expected to be increasingly used in future urban conflicts. The catastrophic humanitarian consequences of recent prolonged sieges—such as in Ghouta (Syria), where civilians are starving because of lack of access to objects indispensable to their survival—have led to widespread condemnations by the international community (see e.g., UN Security Council Resolution 2139 (2014)). The question discussed here is what does international humanitarian law (IHL) say about siege warfare? Is it explicitly ruled out? How might IHL rules and principles constrain siege warfare?
Summary extracted by Aspals

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January The Obligation To Investigate in Peace Operations: The Role of Cooperation in Ensuring Effectiveness Dr Vito Todeschini The Military Law and the Law of War Review,
Review 2017-2018 - Volume 56/2
Reports concerning crimes and abuses committed by peace operations personnel deployed in situations of humanitarian crisis often hit the news. In these instances, troop-contributing States (TCSs) retain both a prerogative and a duty to undertake criminal investigations as prescribed by international law. To investigate effectively, however, a TCS will need to interact with the other actors involved in a peace operation: the host State, the leading international organization, and other TCSs. When a local is killed, for example, the investigating TCS must seek the authorization of the host State in order to perform an autopsy on the victim's body, to avoid infringing the latter's sovereignty. In this sense, partial or total non-cooperation on the part of the host State may hamper a TCS's ability to conduct an effective investigation. The present article examines the obligation to investigate in the context of peace operations, particularly as deriving from human rights law and international humanitarian law (IHL). It further explores how the specific agreements applicable in UN and NATO operations address investigative cooperation, aiming to map relevant normative gaps. The article finally proposes an interpretation de lege ferenda of existing obligations under human rights law and IHL, according to which the duty to investigate would require TCSs (a) to regulate investigative cooperation with the other actors involved in a peace operation and (b) to ensure that such actors conduct investigations in line with the required standards of effectiveness.
Summary by Author

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24 January Liability of an Assisting Army for Detainee Abuse by Local Forces: The Danish High Court Judgment in Green Desert Thomas Obel Hansen EJIL Talk!,
January 24, 2019
This comment sets out to discuss the judgment of the Danish High Court (Eastern Division) in what is known as the Iraq or Green Desert Case (B344808J – HBJ). The judgment, delivered in June 2018 and available in Danish only, has received limited attention outside Denmark. It is significant in that it establishes liability for Danish forces for ill-treatment of Iraqi detainees by Iraqi security forces, in circumstances in which Danish forces were found not to have taken part in the arrests and subsequent abuse of detainees, nor to have exercised command over Iraqi forces. Danish forces had only 'coordinating authority' which did not permit the issuing of orders to Iraqi forces. Liability was nonetheless established on the basis that, at the time of the decision to take part in this joint military operation ('Operation Green Desert') in November 2004, the Ministry of Defence (MoD), the Defence Command or the Danish Battalion should have known that there was 'a real risk that persons detained during the operation would be subject to inhuman treatment in Iraqi custody during the further investigation' (810-11). The MoD has appealed the decision, but at the time of writing the Supreme Court was yet to schedule a hearing date.
Summary extracted by Aspals

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January Urban Warfare: The Obligations of Defenders Aurel Sari Lawfare,
January 24, 2019
Nothing in the law of armed conflict precludes belligerents from conducting military operations in densely populated areas or from contesting the urban environment. This is unlikely to change in the foreseeable future. States will seek to retain the freedom to take offensive action against adversaries operating from built-up areas and to defend their own urban centres against invaders. The fate of civilians caught up in urban combat will therefore depend largely on how belligerents implement the rules governing the conduct of hostilities.
Summary extracted by Aspals

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21 January The Human Rights Committee's General Comment No. 36 and the Right to Life in Armed Conflict Vito Todeschini Opinio Juris,
21 January 2019
On 30 October 2018, the UN Human Rights Committee (HRC) finally adopted the long-awaited General Comment no. 36 (GC 36) on article 6 of the International Covenant on Civil and Political Rights (ICCPR). GC 36, which replaces GC 6 (1982) and GC 14 (1984), is an impressively long and thorough document, which provides a detailed account of how the HRC interprets the many facets of the right to life. This contribution focuses on its paragraph 64, which deals with the protection of the right to life in armed conflict and which appears in Part V of GC 36 concerning the relationship of article 6 with other provisions of the ICCPR other legal regimes.
Summary extracted by Aspals

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January Was NATO's eastward expansion a broken promise? Offiziere.ch Officiere,
December 28, 2018
It is not just Russian President Vladimir Putin who has accused the western NATO members of having deceived Russia about their plans for NATO's eastward expansion. Discussions of the strained relationship between Russia and NATO often turn to how NATO's eastward expansion in 1999 and 2004 broke a promise made to the Soviet Union in the negotiations that led to of German reunification. Judging whether NATO's extension beyond its 1991 borders represents a broken promise or agreement is a fundamental moral assessment of the defense alliance. Declassified documents clearly show that Gorbachev was repeatedly verbally assured that NATO would not expand eastwards. Both in national jurisdiction and international politics, verbal promises and agreements can also acquire legal validity. Even legally non-binding agreements are regarded as essential instruments in international politics.
The question remains, however: Could Russia assume on the basis of Western assurances that NATO would not extend its sphere of influence further east? To what extent was NATO's eastward expansion a broken promise or even a breach of an agreement? Following NATO's eastward expansion, Russian confidence in the intentions of Western states was damaged by its operation 'Allied Force' and the new strategic concept. This did not change even after 1999: further rounds of enlargement (e.g., plans to accept Ukraine and Georgia as NATO member states) and the advanced US missile defense shield further undermined relations with Russia. Russia had no real voice in the negotiations with either the US or NATO. Only one thing has changed: with the election of Putin in 2000, Russia set off once again on its nationalist path, full of self-confidence.
Summary extracted by Aspals

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