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Date Title Author Reference
***New***
September
Three Half-Truths on U.S. Lethal Operations and Policy Constraints Monica Hakimi Just Security,
25 September 2017
President Donald Trump might soon adopt a new policy on US lethal operations outside hot warzones. The new policy would make two key changes to the Presidential Policy Guidance (PPG), which President Obama adopted in 2013. First, it would eliminate the requirement that anyone targeted for attack be suspected of posing a "continuing imminent threat" to Americans. The targetable class would be enlarged to include "foot-soldier jihadists with no special skills or leadership roles." Second, the new framework would no longer require "high-level vetting" of decisions to use lethal force; it would devolve decision-making authority to people closer to the operational level. The author exposes the problems with three common claims on the PPG. These claims are not completely wrong, but neither are they completely correct. They obscure why the reported changes have the potential to be both legally and operationally significant—and quite problematic:
1. Half-truth: IHL governs these situations;
2. Half-truth: There are few, if any, civilian casualties;
3. Half-truth: The PPG is not operationally relevant.
Summary extracted by Aspals

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***New***
September
Libya's Haftar and Liability of Superiors: Ordering Offenses v. Responsibility for Omissions Beth Van Schaack Just Security,
20 September 2017
Concerning the potential war crimes liability of US citizen/Libyan warlord General Khalifa Haftar, this article discusses the distinction under international criminal law between (1) ordering the commission of offenses and (2) being found liable under the doctrine of superior responsibility for failing to prevent or punish the commission of abuses by subordinates. While the latter form of responsibility is not fully codified in US law, legal liability associated with ordering offenses is well established in the federal penal code and would support a domestic prosecution of Haftar under the US War Crimes Act. Superiors can be held liable for the criminal acts of their subordinates through several distinct modes of liability. Two will be considered here: the ordering of subordinates to commit offenses and the failure to prevent abuses or to punish subordinates who have committed abuses. Other applicable forms of liability derived from doctrines of co-perpetration, complicity, incitement, and conspiracy may also implicate leaders in the commission of abuses by their confederates.
Summary extracted by Aspals

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***New***
September
Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self determination UN HRC Working Group A/HRC/36/47,
20 July 2017
Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination. The report provides an overview of the findings of a global study conducted from 2013 to 2016 on the national legislation on private military and security companies in 60 States from all the regions of the world. The findings focus on existing regulatory gaps, commonalities and good practices and can provide guidance to Member States and various stakeholders on regulation. Existing regulatory gaps are real indicators that more robust measures are required for stronger protection against human rights violations by private military and security companies. The Working Group reiterates the need for a comprehensive, legally binding instrument to ensure adequate human rights protection within, and of, the industry.
Summary by UNHRC Secretariat

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***New***
September 2017
Legal Questions About the Airstrike Against the ISIS "Happy Journeys" Convoy Jonathan Horowitz Just Security,
2 September 2017
American-led airstrikes deterred the advance of a convoy carrying a group of ISIS fighters and civilians as it traveled from Lebanon to an ISIS safe-haven in Syria. The convoy reportedly consisted of a mix of buses and ambulances carrying 26 wounded fighters, 308 armed fighters, and 331 civilians. For the time being, it does not appear that the civilian-laden convoy was the actual object of attack. Not all the details are public, but according to Reuters the strike deterred the convoy by cratering a road and hitting ISIS members who were on their way to meet the convoy. This is consistent with a Coalition statement claiming that it had not struck the convoy but struck "individual vehicles and fighters that were clearly identified as ISIS." While airstrikes involving civilians often prompt questions about their legality under the laws of war, known as international humanitarian law (IHL), at this moment, this strike also raises a set of important legal questions surrounding the unique events that occurred prior to the strike on the Lebanese side of the border.
Summary extracted by Aspals

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August 2017 The Status of Private Military Security Companies in United Nations Peacekeeping Operations under the International Law of Armed Conflict Jonathan Crowe and Anna John Melbourne Journal of International Law],
[2017], Vol 18, p16
Private military security companies ('PMSCs') are present in almost all United Nations peacekeeping operations. The utilisation of PMSCs by international organisations raises distinct and complex legal issues. This article discusses the status of PMSCs under the international law of armed conflict, focusing particularly on their involvement in UN peacekeeping activities. We argue that assessing the position of PMSCs requires a sharper understanding of the legal status of civilians who may play an active role in hostilities. The role of PMSCs in UN operations, in particular, places pressure on the widespread view that civilians who participate in hostilities thereby violate the law of warfare. The article then reviews the options for holding PMSCs accountable for violations of international law. We argue that this issue is best addressed by treating international humanitarian law, international human rights law and international criminal law as an interlocking body of norms and mechanisms applicable in armed conflict.
Summary by Authors

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August The Defense of 'Obedience to Superior Orders' in the Age of Legal Clearance of Military Operations Or Bassok EJIL Talk,
24 August 2017
In recent decades, there is a growing belief that more law and more lawyers is the way to tackle the problem of human rights violations during warfare. The Al-Masri obiter represents the results of this trend. The Israeli Supreme Court stated that as long as the rules of engagement were cleared by military lawyers, soldiers would be protected from criminal charges even if they obeyed unlawful rules of engagement.
The manifestly unlawful order doctrine that negates the superior order defense was created in response to the claim that soldiers are mere automatons who just follow orders. But the rise of legal clearance of orders by lawyers has the potential of bringing back the figure of the soldier as an automaton who just follows orders that are now approved by military lawyers. To prevent this figure from re-emerging it is not enough to utilise military lawyers who have the de-facto monopoly on deciding on the legality of orders. As the author shows in his paper, such development increases the chances for obedience to orders that might in the past have been disobeyed on the grounds of being manifestly unlawful. To prevent the development of "assembly line mentality" in military operations – that puts the decisions on legality of orders solely in the hands of military lawyers – we must preserve the option that an order can be refused since it "pierces the eye" of a combatant. This can be achieved only by preventing the disappearance of the second test for determining the existence of a manifestly unlawful order.
Summary extracted by Aspals

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2017 Learning from the Chilcot report: Propaganda, deception and the 'War on Terror' Piers Robinson International Journal of Contemporary Iraqi Studies,
Volume 11, Numbers 1-2,
1 March 2017, pp. 47-73(27)
The 2016 Iraq Inquiry Report (the Chilcot report) was highly critical of the British government and its involvement in the 2003 invasion of Iraq and subsequent occupation. Drawing upon the authoritative material in the report, this article provides the most comprehensive and conceptually grounded post-Chilcot assessment of the empirical evidence now available regarding whether deception and propaganda were used to mobilize support for the invasion of Iraq. Employing a conceptual framework designed to identify deceptive organized persuasive communication (OPC), it is argued that the Chilcot report supports the thesis that, through distortions and omissions, deceptive OPC campaigns presented a misleading impression of both the threat posed by Iraqi WMD and Britain's commitment to a peaceful resolution via the "UN route". Moreover, based upon UK-US communications in the immediate aftermath of 9/11, the Chilcot report also provides suggestive but highly significant evidence of a broader and covert geo-strategic policy, including action against Syria and Iran, and which was underpinned by a "close knit propaganda campaign". In light of this, it is argued that a major expansion of scholarly inquiry is necessary involving sustained analysis of the establishing phase of the "War on Terror", the role that deception and propaganda might have played with respect to its enablement, and, more broadly, the implications of this for our understanding of propaganda and deception in liberal democratic states.
Summary by Author

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August Understanding Russian "Hybrid Warfare" And What Can Be Done About it - Testimony presented before the Committee on Armed Services, US House of Representatives Christopher Chivvis RAND Corporation,
March 22, 2017
Experts use the term "hybrid warfare" in different ways. Several related terms are now in use, including "gray zone strategies," "competition short of conflict," "active measures," and "new generation warfare." Despite subtle differences, all these terms point to the same thing: Russia is using multiple instruments of power and influence, with an emphasis on nonmilitary tools, to pursue its national interests outside its borders—often at the expense of U.S. interests and those of U.S. allies. Russia's use of hybrid strategies has grown markedly in recent years. This growth is a key dimension in the overall increase in Russian military capabilities and the Kremlin's antagonistic attitude toward the West. [Very interesting article].
Summary extracted by Aspals

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August Is the Expanding U.S. Military Presence in Syria Legal? Washington has gone rogue. Sharmine Narwani The American Conservative,
August 4, 2017
In July, the White House and Pentagon requested authority from Congress to build further "temporary intermediate staging facilities" inside Syria in order to combat ISIS more effectively. This request, it must be noted, comes in the wake of devastating ISIS defeats in Syria, mostly by the Syrian Arab Army (SAA) and its allied forces. Shortly afterward, the Turkish state-owned Anadolu news agency revealed previously unknown details and locations of ten U.S. bases and outposts in northern Syria, several of them with airfields. These are in addition to at least two further U.S. outposts already identified in southern Syria, on the Iraqi border. With U.S. legal arguments supporting military presence in Syria unravelling, the Pentagon's untenable position has become noticeable, even within its own ranks. While UNSC Res. 2249 called upon member states to "take all necessary measures" against ISIS in Syria and Iraq, it explicitly stated that any such measures must be "in compliance with international law, in particular with the UN Charter"—which requires consent of a territorial state, in this case, the Syrian government.
Summary extracted by Aspals

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July 2017 A Set of International Crimes without Coherence or a Proper Name: The Origins of "Atrocity Speech Law" Gregory Gordon Opinio Juris,
12th July 2017
The Author was a member of the Media Team at the International Criminal Tribunal for Rwanda, who investigated, and eventually indicted, certain newspaper and radio executives/employees responsible for inflammatory rhetoric disseminated in the lead up to and execution of the Rwandan Genocide. He explains that over time it became clear that there were problems with the formulation and application of the incitement crime, comprising the elements of "direct," "public," "mens rea," "incitement" and, possibly causation. Issues arose with respect to each of these. The point is that speech's unique and potent contribution to atrocity should be recognized and criminalized in its own right. It should not become lost in a set of scattered provisions, relegated as a functionally invisible adjunct to other criminal law concepts in the general "modes of responsibility" sections of statutes, charters and codes. And the set of principles it gives rise to should have a name commensurate with its elevated status. That name should capture the entire range of the doctrine and its intimate relationship with mass violence. The author's book coins that name: "atrocity speech law."
Summary by Aspals

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June 2017 ICC Appeals Chamber Says A War Crime Does Not Have to Violate IHL Kevin Jon Heller Opinio Juris,
June 15th, 2017
One of the most basic assumption of ICL is that an act cannot be a war crime unless it violates a rule of international humanitarian law (IHL). Article 6(b) of the London Charter criminalised "War Crimes: namely, violations of the laws or customs of war." Subsequent treaties have made similar provisions: in each and every case, war crimes are limited to violations of IHL. No more. The Appeals Chamber (AC) at the ICC has just unanimously held in Ntaganda that a perpetrator can be convicted of a war crime even if his act does not violate IHL. That decision is not simply "unprecedented," as the AC openly acknowledges. It is simply incorrect — as this post demonstrates.
Summary by Aspals

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June 2017 About that "Deconfliction Zone" in Syria: Is the United States on Firm Domestic and International Legal Footing? Tess Bridgeman Just Security,
15 June 2017
The US military has at least three times in recent weeks engaged in hostilities against pro-Syrian regime forces near the Al Tanf garrison in southern Syria and shot down a pro-regime drone in the same region on June 8. The escalating trend of hostilities between the US military and pro-regime forces is deeply concerning. It raises the specter of a full-blown war among powerful militaries in Syria–between the United States and its partners on one side, and Syria, Russia, and Iran and their partners on the other. From a purely legal standpoint, the recent US military actions against pro-regime forces also raise immediate and serious questions. The United States' domestic and international legal footing in Syria must be addressed before we stumble further into the Syrian civil war, with the potential consequence of turning it into an international armed conflict. Putting aside the somewhat murky issue of "unit self-defense" that arises when US forces are defending themselves under fire or against a clear hostile intent, it is the actions of the United States that come before that point that must be examined.
Summary extracted by Aspals

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May The West Bank And International Humanitarian Law On The Eve Of The Fiftieth Anniversary Of The Six-day War Theodor Meron American Journal of International Law,
May 2017
The adoption by the Security Council of Resolution 2334 on December 23, 2016, the unprecedented speech by Secretary Kerry delivered shortly thereafter, and the immediate rejection of both by Prime Minister Netanyahu, combined with the approach of the fiftieth anniversary of the Six-Day War in June 2017 and the continued march toward an inexorable demographic change in the West Bank, not to mention the nomination as US Ambassador to Israel of a person reportedly supporting an active settlement policy and annexation: the confluence of these events demands our renewed attention. And while these developments undoubtedly have powerful political dimensions, they also call upon those of us who care about international law to speak up in support of its requirements and application.
Right after the Six-Day War, at the age of 37, the author had just been appointed the Legal Adviser of the Israel Ministry of Foreign Affairs. On September 14, 1967, he stated in an Opinion submitted to the government of Israel that the establishment of civilian settlements in the occupied West Bank and other conquered territories violates the Fourth Geneva Convention related to the protection of victims of war and, specifically, its prohibition on settlements (Article 49(6)). This prohibition, he wrote, is categorical and "not conditioned on the motives or purposes of the transfer, and is aimed at preventing colonization of conquered territory by citizens of the conquering state." He stated, also, that Hague Convention No. IV requires respect for private property and prohibits its confiscation. And even public lands are subject to the Hague Convention's rules: the occupant may use such lands (usufruct), but not behave as if it were their owner. On March 13, 1968, he opined that the demolition of houses of Arabs suspected of subversive activities and/or the deportation of these individuals from the West Bank likewise violated the Fourth Geneva Convention, which was, as he explained, fully applicable. Such demolition would also constitute collective punishment under Article 33 of the Fourth Geneva Convention. It is a matter of history that these opinions were ignored by the government of Israel and in the years that followed, the divergence between the requirements of international law and the situation on the ground in the West Bank has become, if anything, more pronounced.
Comment: This is an inspirational article which illustrates the importance of integrity and evenhandedness in interpreting the law, especially by those lawyers employed in government, to stay true to its purpose. It stands in contrast to the growing tendency among some international lawyers to "push the boundaries" of established or treaty provisions, to contrive new concepts such as "humanitarian intervention", or stretch the understanding and limits of "self defence", as a means of circumventing the UN Charter provisions. This new approach is a tacit endorsement of "might is right" and gravely undermines public faith in the whole body of public international law.
Summary extracted by Aspals

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April Justice for Syria?: The International, Impartial and Independent Mechanism and the Emergence of the UN General Assembly in the Realm of International Criminal Justice Christian Wenaweser and James Cockayne Journal of International Criminal Justice,,
17 April 2017
In the absence of action by the Security Council to ensure accountability for international crimes committed in the war in Syria, on 21 December 2016 the General Assembly created an International, Impartial and Independent Mechanism to assist in investigations and prosecutions. In some ways, this move by the General Assembly was novel, while in others it built on established precedents. This article explains what the Mechanism is and how it will function, and considers its legal basis. We argue that the Mechanism offers concrete hope for justice in Syria, and represents a significant crystallization of an important new approach to international criminal justice.
Summary by Author

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April What's at Stake for US Officials if Their Use of Force is an International Crime of Aggression? Tom Dannenbaum Opinio Juris,,
25 April 2017
The US Tomahawk strikes on the al-Shayrat airbase in Syria were regarded by many as not just illegal, but also criminal. Even from a purely pragmatic perspective, decision-makers in Washington would do well to pay attention to the issue of criminality when the US uses force, at least once aggression is activated at the ICC (likely at the end of this year). If a possible, proposed, or ongoing American use of force would meet (even potentially) the criteria for a criminal aggression, this would give rise to considerations of foreign cooperation, raise the costs to the United States of any Security Council referral of the relevant situation to the ICC, open the door to judicial rulings on the action, with significant implications both for the United States' global reputation and for the development of the jus ad bellum and, more speculatively, provide the basis for the refugee claim of any US soldier (or allied soldier) facing domestic punishment for refusing to participate in the war. This is an excellent article.
Summary by Author

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April Why Unilateral Humanitarian Intervention Is Illegal and Potentially Criminal Kevin Jon Heller Opinio Juris,
April 20th, 2017
It simply beggars belief to think that the recent US missile attack on Syria was in any way motivated by humanitarian concerns. The US cares about protecting its own interests in Syria, such as preventing chemical weapons from being used against Americans. (The real message of the completely ineffectual attack.) It does not care about the lives of ordinary Syrians, as the ever mounting death-toll indicates. NATO's intervention in Kosovo, was not defended as 'humanitarian intervention' per se, except by Belgium. If the 26 other NATO states did not invoke UHI, the attack does not help establish UHI's legality. NATO states could have invoked UHI but chose not to. Once again opinio juris is lacking in relation to UK and US no-fly zones in Iraq. ECOWAS never invoked UHI to justify its interventions in Liberia in 1990 and Sierra Leone in 1998. In contrast, the UK's endorsement of UHI in Syria, particularly in the context of the 2013 sarin gas attack that killed hundreds if not thousands does, in fact, contribute opinio juris in favour of UHI. The upshot is one state that explicitly and regularly endorses a right of UHI. And against that, we have the unequivocal rejection of UHI by the 120 states that are part of the Non-Aligned Movement and the 134 states that are part of the Group of 77, which includes major powers like China, India, and South Africa. (The two groups obviously overlap.)
During the Kampala Review Conference in 2010, states soundly rejected the US's attempt to specifically exclude UHI from the crime of aggression. It is difficult to imagine any issue that is more black and white given state practice. Article 2(4) of the UN Charter is clear: force is legal only when authorised by the Security Council or in self-defence. UHI does not involve the former by its very definition, and there is no argument de lege lata that UHI can be justified as a form of self-defence, because it does not involve an armed attack on the intervening state. UHI manifestly violates the UN Charter.
Summary extracted by Aspals

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April Should International Law Recognize A Right Of Humanitarian Intervention To Support And Reflect A Pluralistic Understanding Of Sovereignty? Chris O'Meara International & Comparative Law Quarterly,
27 Feb 2017
The on-going Syrian civil war calls for a re-evaluation of using force to protect human rights. This paper does not rake over the much-debated issue of whether a right of humanitarian intervention exists as lex lata. Instead, it addresses the little reviewed normative issue of whether the right should exist in international law to support and reflect a pluralistic understanding of sovereignty. Despite advancements in international human rights law, international humanitarian law and international criminal law, this wider fabric of international law preserves Westphalian sovereignty and the principle of non-intervention. It denies any right of humanitarian intervention.
Summary by Author

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April The Clearly Illegal US Missile Strike in Syria Marko Milanovic EJIL Talk,
7 April 2017
On 6 April 2017, the United States launched a missile strike against an airbase of the Syrian armed forces, in response to the recent chemical attack that the US claims was launched from this airbase. This is the first time that the US has directly used force against the Syrian regime. It is also the first time that its use of force in Syria is clearly illegal. Clearly, in the sense that the author can't imagine even a remotely plausible argument (let alone a persuasive one) as to why this act is not a breach of Article 2(4) of the Charter. (And arguably of US constitutional rules on the use of force. This is a situation in which the US government doesn't have even a colourable argument that its conduct is lawful. It may, of course, decide to break the law (as it did), by thinking that the breach of the law is justified by higher moral considerations ('illegal but legitimate,' etc), and by thinking that under the circumstances it is unlikely to pay a high political cost for its breach. At a moral or political plane, this argument rests on an (at this time untestable) assumption that the strike will do more good than harm. But the Charter has nonetheless been broken, and at that with a rare clarity.
Summary extracted by Aspals

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April The Strike in Syria – Is the International Law Calculation Different Now Than in 2013? Deborah Pearlstein Opinio Juris,
6 April 2017
In 2013, there was broad agreement that the United States lacked any international law justification for the use of force against Syria following its initial use of chemical weapons: there was no UN Security Council resolution authorizing such force, and no assertion by the United States (or anyone else) that this was an action taken in national self-defense. The closest anyone came to a theory of international law legitimacy then was the UK's suggestion that a post-chemical weapons attack was 'illegal but legitimate' for humanitarian reasons in the same way NATO's un-authorized use of force had been in Kosovo in the 1990s. None of the reasons given by President Trump for the action bore any relation to speeding humanitarian relief to the people of Syria themselves.
Summary extracted by Aspals

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March Lawfare Lieutenant Colonel John Moore, US Army The Three Swords Magazine ,
31 March 2017
As with other non-kinetic hybrid methods, Lawfare aims to use communication and informational media to propel certain legal concepts and interpretations into the public mindset that will help achieve strategic objectives. NATO does not yet have an official Hybrid Warfare doctrine, so there is no authorized definition of the term in the NATO environment, but some eminent legal thinkers have crafted some cogent interpretations. While NATO and its Allies have had moderate success in use of Lawfare and hybrid, Russia's military has taken the lead in advancing and implementing these non-lethal tools. It is urgent that NATO organize its efforts to harness these critical non-kinetic weapons. NATO should not restrict its Lawfare efforts to the examples that it displayed in Operation Resolute Support, or to Israel's similar example in Operation Protective Edge, where NATO and Israel did more than the law required in order to win over hearts and minds. The results, overall, were mediocre; stalemate is not victory. It is time to advance.
Summary extracted by Aspals

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March Bad Criminal Law in the Alexander Blackman Case Kevin Jon Heller Opinio Juris,
31 March 2017
In September 2011, Alexander Blackman, a Sergeant in the Royal Marines serving in Afghanistan, executed a Taliban fighter who had been incapacitated by his wounds. This was no spur-of-the-moment killing, as video recovered one year later makes clear. Not surprisingly, the Court Martial convicted Blackman of murder and sentenced him to life imprisonment. All of his fellow soldiers were acquitted. Fast forward to 28 March 2017 when the Court Martial Appeal Court (CMAC) allowed Blackman's appeal, substituted a verdict of manslaughter for murder on the ground of diminished responsibility, and reduced his sentence to seven years imprisonment. Blackman will be a free man, with an honourable discharge from the Royal Marines, within a short time. From a criminal law perspective, the author finds the CMAC's judgment profoundly unconvincing and explains this in his very well-argued post.
Summary extracted by Aspals

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March Hybrid War: Wreaking Havoc Across West Africa Andrew Korybko Oriental Review,
24 March 2017
The first of the four main countries to be explored in the West Africa Hybrid War analysis is Chad, the sparsely populated state located at the trilateral crossroads between West-North-Central Africa. A cursory glance at the map reveals the geostrategic significance of this country, but it also misleadingly presents it as a desert-strewn state in the middle of nowhere. While this might be partially true, it's an injustice to simplify Chad to such basic descriptions, as such blanket terms don't reveal the wealth of diversity and Hybrid War vulnerabilities within its borders. Moreover, dismissing Chad as a wasteland in the middle of Africa also doesn't explain why its military is one of the most ambitious and battle-hardened in the entire continent, nor why the country is of such importance to China's New Silk Road plans. Therefore, a comprehensive approach is urgently needed in order to better understand Chad's internal and external dynamics, which in turn can help observers and strategists alike identify the most likely destabilization scenarios that could afflict this highly important state. The author considers hybrid factors such as Color Revolution, Breaching The Borderland, "Weapons Of Mass Migration", and Clash Of Civilizations.
Summary extracted by Aspals

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March The UN Goes to War in the Central African Republic: What are the Limits of Peacekeeping? Patryk I. Labuda Just Security,
23 March 2017
The UN peacekeeping mission in the Central African Republic (CAR), known by its French acronym MINUSCA, is now testing how far UN peacekeepers may go to enforce their mandates without running afoul of international law. Operations like the Feb. 26 attack near Bambari raise difficult questions about the UN's legal authority to target non-state actors and, conversely, whether pro-active interpretations of peacekeeping mandates compromise the UN's immunity from counter-attacks.
Summary by Aspals

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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.
Summary by Aspals

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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 US 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 US 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, US 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.
Summary extracted by Aspals

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March NORTHWARD HO! How Russian Lawfare is Conquering the Arctic Sascha Dov Bachmann and Andres B. Munoz Mosquera The Fletcher Forum of World Affairs,
9 March, 2017
The Arctic has become an object of desire for coastal and non-coastal States for the exploitation of natural resources since the scientific recognition in 2001 that the High North is melting as a result of changes to the planet's climate. A scramble for the Arctic will lead to future conflict, open and dormant, kinetic and non-kinetic. A conflict already underway is in the form of "lawfare" – defined as the use of law as a weapon – and is a tactic currently employed by Russia. As in Ukraine, both pre-and post-Crimea, Russia used lawfare extensively in order to create an ex novo, Russian-centered, legal framework to justify its illegal actions. It appears that the same is happening in the High North. A 2016 Finnish analysis of Russia's ambitions in the Arctic noted that, "During the Ukraine conflict, Russia's public endorsements of international law and co-operation vis-à-vis the Arctic have co-existed with bolder rhetoric about the region's territorial value for Russia."
Summary extracted by Aspals

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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.
Summary by Aspals

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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.
Summary extracted by Aspals

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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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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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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.
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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:
1.  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."
2.  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.
3.  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.
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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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