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Date Title Author Reference
***New***
September
Hybrid Warfare and Deniability as Understood by the Military Hakan Gunneriusson Polish Political science Yearbook,
vol. 48(2) (2019),
pp. 267–288
Russia and China are terraforming the maritime environment as part of their warfare. In both cases the actions are illegal and the performance is offensive to its actual nature. In the case of China, the practice is construction of artificial islands in the South Chinese Sea and in the case of Russia it is about the infamous bridge built over the Kerch strait, Ukraine. Neither Russia nor China expects an armed conflict with the West in the near future. That is a reasonable assumption, which is weaponized at the political-strategically level. The attack of this weaponized situation is that the trust in the West. Primarily the EU (European Union) and NATO (North Atlantic Treaty Organization), is eroded for every day which these countries challenges the international system which the western democracies say that they present and defend. China and Russia offer their authoritarian systems as a replacement and there are a lot of pseudo-democratic or even out-right authoritarian regimes on the sideline watching this challenge unfold. The article highlights the difference for the NATO-countries in logic of practice when it comes to the political social field on one hand and the military political field on the other hand. The article uses material from a previously unpublished survey made on NATO-officers then attending courses at NATO Defense College (NDC).
Summary extracted by Aspals

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***New***
September
The UN Yemen Report and Siege Warfare Michael Schmitt, Kieran Tinkler and Durward Johnson Just Security,
September 12, 2019
Siege as a method of war was mentioned as far back as the writings and iconography of Israel, Mesopotamia and early Persia. Despite its long lineage, the term "siege" is nowhere authoritatively defined in international law. Nevertheless, the Expert Report accurately captures the prevailing appreciation of the tactic as "military encirclement of an area with the imposition of restrictions on the entry and exit of essential goods with the aim of forcing its surrender."
IHL has progressed significantly since the Lieber Code. In modern warfare, it is unquestionable that IHL prohibits intentional starvation of the civilian population. In treaty law, the prohibition is found in Article 54(1) of Additional Protocol I to the 1949 Geneva Conventions for international armed conflict and Article 14 of Additional Protocol II (AP II) for non-international armed conflicts, such as that in Yemen. Yemen is a Party to that conflict, which clearly reaches AP II's Article 1 threshold of applicability because Houthi forces control significant swaths of territory. There is also general consensus that the prohibition on starving the civilian population as a method of warfare is customary in character vis-a-vis both international and non-international armed conflict, as is attacking, destroying, removing or rendering useless objects indispensable to the civilian population (such as food and water) for the purpose of denying their sustenance value to the civilian population.
Summary extracted by Aspals

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***New***
August
U.S.-Turkey "Safe Zone" Likely to Add Fuel to Syria Conflict Agnieszka Jachec-Neale Just Security,
August 27, 2019
The United States and Turkey announced they had reached an agreement to set up a joint operations center to "coordinate and manage the establishment of a safe zone" in northeast Syria. This is yet another "zone" planned for Syria after four so-called "de-escalation" zones and a Russian-Turkish agreed "buffer zone" in Idlib were created in the past few years. The new "safe zone" is intended to become a so-called "peace corridor" permitting repatriation of Syrian refugees from Turkey. While there is a significant risk that a new arrangement will further destabilize this highly volatile region and threaten the security of millions of civilians, there is also growing concern that neither Turkey nor the U.S. might fully abide by their humanitarian obligations to ensure the safety and well-being of the persons within the bounds of the "safe zone."
The chances are that likely military confrontations and uncertain effective governance of the zone will have dire effects on masses of Syrians. One does not need to recall the tragic outcomes of Bosnian "safe areas" in the 1990s to understand why this is so – even the past experiences with various types of "zones" created in Syria are sufficient to raise serious doubt as to whether such a zone will provide safety for anyone.
Summary extracted by Aspals

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***New***
August
The Mutual Assistance Clauses of the North Atlantic and EU Treaties: The Challenge of Hybrid Threats Aurel Sari Harvard National Security Journal
Vol. 10
,
2019
Mutual assistance clauses serve a dual purpose. They commit their signatories to stand up to a common threat and are thereby meant to deter potential aggressors. Their dual purpose places them at the crossroads between war and peace and the intersection between law and strategy. The rise of hybrid threats, however, has led many to question whether the mutual assistance guarantees found in the North Atlantic and EU Treaties remain suited for our present security environment. Adversaries employ tactics that increasingly seem to blur the dividing line between war and peace. The hybridization of warfare thus poses a risk that adversaries may circumvent classic security guarantees. The purpose of the present Article is to compare the mutual assistance clauses of the North Atlantic and EU Treaties to determine their scope of application, clarify the nature and extent of the obligations they impose on the contracting parties, and assess their vulnerability to hybrid threats. The analysis confirms that the provisions in question are at risk of subversion, but that the impact of this threat is more limited than is often assumed. Nevertheless, this Article argues that there is no room for complacency. NATO, the EU, and their member states should take steps to strengthen legal interoperability in order to increase the legal resilience of their collective security arrangements against the challenges posed by hybrid threats.
Summary extracted by Aspals

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***New***
August
"Fiat Justitia": Implications of a Canadian Military Justice Decision for International Justice Kenneth Watkin Just Security,
August 21, 2019
In the latest in a series of judgments on the constitutionality of the Canadian military justice system, the Canadian Supreme Court on July 26, 2019 in R. v. Stillman (also frequently referred to in the media as the Beaudry case) upheld the trial of military accused before a court martial panel, as opposed to a civilian jury, for serious civilian criminal offences incorporated into military law. The Court reaffirmed a previous decision that a provision of the National Defence Act incorporating all Canadian civilian criminal offences into service offences was not overly broad under section 7 of the Canadian Charter of Rights and Freedoms ("Charter"), and that the "military nexus" required to ground a rational connection to discipline, efficiency, and morale in the military was simply an accused's military status (Stillman, para 109).
Further, the Court ruled that "military law" as contemplated by the human rights Charter is not limited to "purely" military offences (e.g. spying for the enemy, mutiny with violence, insubordination). Accordingly, the Court held that a service accused has no right to a jury trial, since "where such an offence is tried before a military tribunal — as was the case for each of the accused persons in this instance — the military exception in s. 11(f) of the Charter is engaged".
Summary extracted by Aspals

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2019 Hybrid Threats: A Strategic Communications Perspective Dr Sean Aday, Dr Maris Andžans, Dr Una Berzina-Eerenkova, Dr Francesca Granelli, John-Paul Gravelines, Dr Mils Hills, Miranda Holmstrom, Adam Klus, Irene Martinez-Sanchez, Mariita Mattiisen, Dr Holger Molder, Dr Yeganeh Morakabati, Dr James Pamment, Dr Aurel Sari, Dr Vladimir Sazonov, Dr Gregory Simons, Dr Jonathan Terra NATO StratCom Centre of Excellence,
2019
This report is the product of a research project undertaken by the NATO Strategic Communications Centre of Excellence (NATO StratCom COE), at the request of the governments of Lithuania and Estonia. The project was designed to deepen our understanding of the wide range of measures which come under the umbrella of 'hybrid threats'. Such measures aim to influence the political decision-making of a targeted nation in a way which hurts their national security interests, predominantly conducted in the 'grey zone' between peace, crisis and war. The project broadens the framing of current debates on hybrid threats beyond the most common empirical reference points, which tend to relate to the Russian Federation. A standardised framework is used to analyse case studies which are assessed to offer examples of hybrid threats.
Summary extracted by Aspals

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July 2019 Silence and the Use of Force in International Law Dustin Lewis EJIL Talk,
July 18, 2019
States frequently take actions and make statements that implicate international law. But because they do not — and, indeed, could not — express a view on each such act or statement by all other states at all times, silence seems to be the norm, rather than the exception, in international relations.
When states and other international actors do not express their views on a particular incident, issue or statement that implicates international law, what is the legal significance, if any, of their silence? Does it denote acquiescence or quiet protest? Might it not have legal significance at all? Who makes this determination? Who benefits, and who loses, from a finding that a particular silence does or does not yield legal consequences?
Summary extracted by Aspals

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July Self-Defense in International Law: What Level of Evidence? Jasmin Johurun Nessa Just Security,
July 8, 2019
The battle of rhetorical persuasion over Iran is focused in significant part on evidence. After Iran shot down a U.S. drone last month, the leadership in Tehran claimed to be acting in accordance with Article 51 of the United Nations Charter, which allows military action in self-defense. Iran proclaimed it had "indisputable" evidence that the U.S. drone was violating Iranian air space. Russia supported the Iranian claim, saying that it, too, had intelligence showing the drone to be in Iranian air space. The United States, on the other hand, declared "beyond any doubt" that the drone was in international airspace, and blamed Iran for spreading "pure and blatant disinformation." The question of evidence is once again at the forefront of international debate. So, how much evidence does a State need to have before it can justify using force under international law? What is the Evidentiary Standard for Self-Defence?
Summary extracted by Aspals

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July 2019 Classification of Cyber Capabilities and Operations as Weapons, Means, or Methods of Warfare Jeffrey Biller, Michael Schmitt International Law Studies,
Volume 95
2019
Despite several persistent controversies regarding how international law applies to cyber operations during an armed conflict, general understanding of the law in this domain is maturing. Reasoning by analogy to non-cyber application and interpretation of international law underlies much of the progress. Yet, although preexisting normative structures and legal terminology enable legal advisors and scholars to usefully draw upon previously acquired experience and understanding, there are obstacles to definitive analogizing that result from fundamental differences between cyber and kinetic operations. The number of imperfect analogies that underlie some of the normative uncertainty in the field underscores this point.
One key difference between kinetic and cyber operations is that most of the latter result in no injury to persons or physical damage to objects.
Building on such differences, this article examines three terms drawn from classic international humanitarian law (IHL) – weapons, means, and methods of warfare – in the context of cyber operations. The article begins by identifying those IHL and neutrality rules that the use of the terms implicates, namely the weapon review obligation, the requirement to choose among available means and methods of attack to minimize civilian harm, and the prohibition on transportation of weapons across neutral territory. It then assesses the prevailing understandings of weapons, means, and methods of warfare in an effort to tease loose the sine qua non characteristics that define the terms. This analysis leads to the conclusion that cyber capabilities cannot logically be categorized as weapons or means of cyber warfare.
Summary extracted by Aspals

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July Article 15 Communication - Methodological challenges relating to the use of third-party Human Rights FactFinding in Preliminary Examinations Dr Dov Jacobs Opinion,
31 May 2019
The preliminary examination in the Situation in Palestine (the "Situation") was opened by the Office of the Prosecutor (OTP) on 16 January 2015. The opening of this preliminary examination followed Palestine's purported accession to the Rome Statute on 2 January 2015, taking effect on 1 April 2015. This communication is without prejudice to jurisdictional issues, including but not limited to both the legal capacity of Palestine to join the Rome Statute as a State and, even should the quality of Palestine as a State party be accepted, the "geographical scope" of such accession given the undetermined nature of Palestine's borders, as well as conflicting obligations which operate to invalidate the lawful delegation of (Palestinian) criminal jurisdiction to the ICC. This purported accession, which would only give the International Criminal Court prospective jurisdiction, was accompanied by a declaration lodged under Article 12(3) of the Rome Statute by which Palestine claimed to grant jurisdiction to the Court since 13 June 2014...
Summary extracted by Aspals

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June 2019 Protecting Those Who Serve Richard Ekins, Patrick Hennessey, Julie Marionneau Policy Exchange (download link),
June 28, 2019
The next Prime Minister has a responsibility to act urgently to protect UK troops, whether serving or retired, from ongoing exposure to legal risk and to unfair legal processes. From Northern Ireland to Iraq and Afghanistan, those who served – or who serve still – in the nation's defence have not been adequately protected. The responsibility to act does not arise solely on the grounds of basic fairness, although this would be sufficient reason for action. The process to which UK troops have been subjected bears on the morale and operational effectiveness of UK forces now, which the Government must address if it is to maintain military capacity and defend the realm.
This paper examines how this sorry state of affairs has arisen and outlines what should now be done to put it right. The paper considers investigations into allegations of historic wrongdoing in Northern Ireland, as well as investigations arising out of recent operations in Iraq and Afghanistan, and proposes reforms to UK law and practice which would more adequately protect those who served.
Summary by Authors

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June The International Criminal Court, Independence and the Prosecutor Anthony Paphiti Aspals Legal Pages,
8 June 2019
On 20 November 2017, the Prosecutor submitted the 'Request for authorisation of an investigation pursuant to article 15' (the 'Request') to the Pre-Trial Chamber (PTC). On 12th April 2019, PTC-II denied that request on the basis that "an investigation into the situation in Afghanistan at this stage would not serve the interests of justice." That there are fundamental problems with the court is somewhat axiomatic. The absence of three of the Permanent 5 members of the Security Council also diminishes its credibility, which further deteriorated in the wake of the threats from the US to arrest and prosecute court staff undertaking investigations into US crimes in Afghanistan. A cynic might think that the decision of the court was a total capitulation to this threat. However, this still tends to overlook what is believed to be a fatal hole below the waterline of this institution, which undermines principles of impartiality that guide the way in which all courts must operate under the rule of law. Moreover, that flaw is inherent in the Rome Statute itself and raises fundamental questions about the court's independence.
Summary by Author

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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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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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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.
Summary by Author

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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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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.
Summary by Author

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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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***New***
March
Challenging and Refining the "Unwilling or Unable" Doctrine Craig Martin Vanderbilt Journal of Transnational Law,
VoL. 52:387
This Article challenges and proposes refinements to the "unwilling or unable" doctrine. Governments after 9/11 have invoked the doctrine to justify the use of force in self-defense against non-state actors (NSAs) operating within the territory of nonconsenting states. Responding to criticism that it lacked substance and a legal foundation, Daniel Bethlehem famously developed more detailed principles to embed the policy firmly in law, strike a balance between the interests of target states and territorial states, and bridge the gap between scholars and policy makers. His principles were embraced by governments as reflecting custom. The effort was laudable, but the principles fell short of their objective, and they create a risk of destabilizing the jus ad bellum regime.
This Article notes that the principles do not reflect custom, and it examines some of the ways in which they are inconsistent with the established understanding of the jus ad bellum regime. Specifically, they: lower the threshold for what constitutes an armed attack; eviscerate the temporal component from the concept of imminence, thereby destabilizing the core principle of necessity; improperly import the law of state responsibility into the jus ad bellum analysis; and undermine the independence of the international humanitarian law (IHL) and the jus ad bellum regimes. Finally, the principles do not provide sufficient guidance on how or by whom a range of key determinations are to be made, particularly regarding the "ability" or "unwillingness" of the territorial state. The principles lump all these determinations together and suggest that they may all be made unilaterally by the target state, governed only by a single, low reasonableness standard. All of this weakens the constraints of the jus ad bellum regime more generally, thus raising the risk of inter-state war.
The Article develops new ideas on imminence, and drawing upon theories of self-judgment in international law, it disaggregates the decisions that have to be made and proposes differentiated standards to govern their execution and later assessment.
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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