Aspals Reading List - 2011

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Date Title Author Reference
2011 Report of the Inquiry into Former Armed Service Personnel in Prison Sir John Nutting QC Report
In recent years there has been much public discussion both about the number of ex-servicemen in prison (and in so far as there is a problem, it is one concerning male rather than female ex-servicemen) and also the reasons why they should have become involved in the criminal justice system. The inquiry was established with the remit of discovering why so many ex-servicemen become involved with the criminal justice system and in particular, the problems which they face on leaving the Armed Forces, the sorts of offences which they have committed, the reasons which underscore their offending, how the needs of this group can best be met both in the community and in prison, and what can be done to reduce the number who commit offences resulting in custody. Whatever the exact figures for ex-servicemen in prison, it is important to stress that all estimates indicate that ex-servicemen constitute a significant subset of the adult male prison population and by occupation, potentially the largest. The report examines the role PTSD has to play. In comparison with the US, 'Veterans courts' have been operating since 2008 and are now spreading across the country. These specialist courts offer individually tailored support for veterans who have committed non-violent offences to enable them to get their lives back on track. Veterans who attend are assigned a probation officer and an ex-service mentor who is a veteran. It is important that the authorities in the UK do everything possible to ensure that there is no gap between policy and procedure across the Forces, particularly for those identified as vulnerable. Much can also be learned from the systems which are in place at MCTC Colchester. A form of the needs assessment used there could be adapted and used to inform current practice for those being discharged, especially those whom the Forces consider vulnerable.
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2011 Judicial Independence at Risk - Critical Issues regarding the Crime of Aggression Raised by Selected Human Rights Organizations by Leonie von Braun and Annelen Micus Journal of International Criminal Justice 10 (2012), 111-132
This article examines the amendments to the crime of aggression passed during the International Criminal Court Review Conference from the perspective of some of the human rights organizations engaged in the discussion. The authors find that the Kampala compromise has not realized the worst fears voiced by these civil society organizations before and during the Review Conference. Nonetheless, there is cause for concern as regards the amendment's effect on the standards of independence and integrity of the ICC, especially its Office of the Prosecutor. States parties have introduced a jurisdictional procedure that allows the United Nations Security Council to have a significant impact on the Court by expanding the reach of Article 16 of the Rome Statute, even though three of the permanent members have failed to ratify the Statute. The authors perceive the risks of increased selectivity and political interference in the decision-making of the Court in the future.
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March 2011 How does law protect in war? Cases, documents and teaching materials on contemporary practice in international humanitarian law. Marco Sassòli, Antoine A. Bouvier, Anne Quintin ICRC, Third Edition, Volumes I-III
16 March 2011
A selection of nearly three hundred case studies provides university professors, practitioners and students with the most up-to-date and comprehensive selection of documents on international humanitarian law (IHL) available. The publication presents the most fundamental and contemporary legal issues in armed conflict, and a series of course outlines for professors interested in setting up courses on IHL or in introducing its study.
The authors aim to show that international humanitarian law is actually being applied in contemporary practice and that it guides those seeking answers to the legal problems arising from armed conflicts. They also hope to encourage practice-related teaching of IHL in universities world-wide and to provide experts in the field with a reliable reference work on contemporary practice.
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2011 Joint Doctrine Note 2/11 - The UK Approach To Unmanned Aircraft Systems UK Ministry Of Defence Joint Doctrine Note 2/11 (JDN 2/11), dated 30 March 2011
promulgated as directed by the Chiefs of Staff
Unmanned aircraft have been around since the early days of aviation, exemplified by such systems as the World War II German Fritz X Glide Bomb and the proliferation of US systems such as the Firebee that played a major role during the conflict in Vietnam. In the last 5 years, the packaging of satellite positioning systems with advanced sensors, communication links and computer processors, have given Unmanned Aircraft Systems (UAS) a capability that previously existed only in the realm of science fiction. The UK Approach to Unmanned Aircraft Systems considers how UAS may contribute to the UK's future defence and security needs between now and 2030. Its purpose is to identify and discuss policy, conceptual, doctrinal and technology issues that will need to be addressed if such systems are to be successfully developed and integrated into future operations.
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2011 The Changing Character of the Participants in War: Civilianization of Warfighting and the Concept of "Direct Participation in Hostilities" Charles Garraway International Law and the Changing Character of War, International Law Studies US Naval War College,
Vol.87 (Paul A. 'Pete' Pedrozo & Daria P. Wollschlaeger Eds.), at pp.177-186.
Modern codification of the law began almost simultaneously on opposite sides of the Atlantic. In the United States, during the Civil War, Dr. Lieber drafted the Lieber Code, designed for the Unionist forces. Meanwhile, in Europe, Henry Dunant, following his experience at the Battle of Solferino, was working to fulfill his dream of providing succor to the victims of armed conflict. The first emanation of this was the Geneva Convention of 1864.As weaponry increased in power, the battlefield turned into the battlespace. Civilians were becoming involved. The essential balance between humanity and military necessity has underpinned the regulation of conflict through those centuries, adjusting to meet each new challenge, each "new paradigm." Our task is to ensure that that balance ismaintained in the world as we face it in the first quarter of the twenty-first century.
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2011 The Role of US Styled Anti-Terrorism Litigation in the Prevention of Terrorism and Other Hybrid Threats – A Legal Assessment and Outlook Sascha Dominik Bachmann Available at SSRN,
November 19, 2011
Global terrorist activities depend directly on financial economic support from a multitude of donors, both individual and corporate. Terrorist financing is a global problem which is closely linked to international crimes such as money laundering and organized crime. Consequently, possible responses have to constitute co-ordinated, multi-lateral and multi faceted actions under the umbrella of a wide range of international stakeholders such as the United Nations Security Council and the Financial Action Task Force (FATF). Apart from 'kinetic' (kill) security responses and the adoption of criminal justice measures another response could be the use of transnational civil litigation by victims of terrorism against both, terrorist groups and their sponsors. Corporations, both profit and non profit, such as banks (cf. the US Arab Bank cases and the In re Terrorist Attacks on September 11, 2001 case) and other entities (cf. the Boim litigation cases), as well as individuals, collude as aiders and abettors by providing financial assistance to the perpetrators (cf. UN Consolidated List established and maintained by the 1267 Committee with respect to Al-Qaida et al). Such collusion in acts of terrorism gains additional importance against the background of so called 'Hybrid Threats' referring to new threats arising from multi-level threat scenarios. This article discusses the potential of the evolving notion of indirect corporate accountability under US federal law for aiding and abetting of acts of terrorism and other serious human rights crimes from a UK-Israeli perspective. This article acknowledges the interdependence of the different responses to terrorism, the potential disastrous impact on humanitarian action if unregulated and argues for the adoption of a holistic approach to combat terrorism.
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2011 Targeted Killing As A Means Of Asymmetric Warfare: A Provocative View And Invitation To Debate Sascha Dominik Bachmann and
Ulf Haeussler
Law, Crime and History,
at page 9
The killing of Mahmoud al-Mabhou reportedly by agents of Israel's Mossad service in Dubai serves as a quick reminder that extrajudicial executions, assassinations and other targeted killing operations are taking place and are part of a modern democracy's arsenal of antiterrorism and counter-terrorism means. Targeted Killing Operations reportedly form part of NATO's operational practice: depending on the circumstances they represent just another option of the lawful use of force in an armed conflict or assimilated situations. Consequently, it is argued that International Law does not impose an explicit ban on the lethal neutralization of certain persons in an armed conflict scenario. This opinion provides a provocative view on possible justifications using targeted killing as an actual means of present day security operations – which must not be confused with traditional methods of domestic 'policing' in a democratic state.
Summary extracted by Aspals
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December 2011 Crimes Against Humanity: Historical Evolution and Contemporary Application M. Cherif Bassiouni ISBN-10: 1107001153
ISBN-13: 978-1107001152
This book traces the evolution of crimes against humanity (CAH) and their application from the end of World War I to the present day, in terms of both historic legal analysis and subject-matter content. The first part of the book addresses general issues pertaining to the categorization of CAH in normative jurisprudential and doctrinal terms. This is followed by an analysis of the specific contents of CAH, describing its historic phases going through international criminal tribunals, mixed model tribunals and the International Criminal Court. The book examines the general parts and defenses of the crime, along with the history and jurisprudence of both international and national prosecutions. For the first time, a list of all countries that have enacted national legislation specifically directed at CAH is collected, along with all of the national prosecutions that have occurred under national legislation up to 2010.
Summary by Amazon
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December 2011 The Justice Cascade: How Human Rights Prosecutions are Changing World Politics Kathryn Sikkink
Kathryn Sikkink examines the important and controversial new trend of holding political leaders criminally accountable for human rights violations. She shows how, in three decades, state leaders in Latin America, Europe and Africa have lost their immunity from accountability, becoming the subjects of highly publicised trials resulting in severe consequences. This shift is affecting the behaviour of political leaders and may change the face of global politics. Drawing on extensive research and personal experience, Sikkink reveals how the emergence of human rights prosecutions has come about; what effect it has had on democracy, conflict and repression; and what it means for leaders and citizens everywhere. The Justice Cascade is a vital read for anyone interested in the future of world politics and human rights.
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9 December 2011 This Side of Silence: Human Rights, Torture, and the Recognition of Cruelty Tobias Kelly ISBN-10: 0812243730
ISBN-13: 978-0812243734
We are accustomed to thinking of torture as the needless infliction of cruelty by public officials, and we assume that lawyers and clinicians are best placed to speak about its causes and effects. However, it has not always been so. The category of torture is a very specific way of thinking about violence, and our current understandings of the term are rooted in recent twentieth-century history. In This Side of Silence, social anthropologist Tobias Kelly argues that the tensions between post-cold-war armed conflict, human rights activism, medical notions of suffering, and concerns over immigration have produced a distinctively new way of thinking about torture, which is saturated with notions of law and trauma. This Side of Silence asks what forms of suffering and cruelty can be acknowledged when looking at the world through the narrow legal category of torture. The book focuses on the recent history of Britain, but draws wider comparative conclusions, tracing attempts to recognize survivors and perpetrators across the fields of asylum, criminal law, international human rights, and military justice. In this thorough and eloquent ethnography, Kelly avoids treating the legal prohibition of torture as the inevitable product of progress, and yet does not seek to dismiss the real differences it has made in concrete political struggles. Based on extensive archival research and ethnographic fieldwork, the book argues that the problem of recognition rests not in the inability of the survivor to communicate but in our inability to listen and take responsibility for the injustice before us.
Summary by Amazon
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November 2011 The UN 'Norms on the Responsibility of Transnational Corporations and Other Business Enterprises with Regard to Human Rights' - A Requiem Sascha-Dominik Bachmann and Pini Pavel Miretski Deakin Law Review, Vol. 17, No. 1, 2012 (abstract)
Full Paper can be downloaded from this page
On 11 June 2011, the United Nations Human Rights Council endorsed the 'Guiding Principles for Business and Human Rights' as a new set of guiding principles for global business designed to provide a global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity. This outcome was preceded by an earlier unsuccessful attempt by a Sub-Commission of the UN Commission on Human Rights to win approval for a set of binding corporate human rights norms, the so called 'Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights.' This article identifies and discusses the reasons why the Norms eventually failed to win approval by the then UN Commission on Human Rights. This discussion is important in order to understand the difficulties in establishing binding 'hard law' obligations for Transnational Corporations with regard to human rights within the wider framework of international law. It is crucial to understand possible motives as well as the underlying rationale which lead first to the adoption and then the rapid abandoning of the Norms: such a discussion will also shed light on the prospects and trends of concepts of indirect, vague voluntarism of business human rights compliance, as well as on prospects of finding alternative solutions, and finally the rationale and effect of the 'Guiding Principles for Business and Human Rights.'
Summary by Social Science Research Network
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October 2011 Expedited Justice: Gaddafi's Death and the Rise of Targeted Killings Kevin Govern Jurist Forum
October 25, 2011
The death of Libyan leader Muammar Gaddafi officially brought his rule to an end on October 20, 2011. This was met with the acclaim of governments around the world and the relief of the Libyan people. Apparently injured during a combined NATO aircraft and US Predator drone strike on his convoy in Sirte, Gaddafi was then captured by National Transitional Council (NTC) rebels and subsequently killed. Reports from NTC officials also confirmed Gaddafi's son Muatassim was killed in Sirte. It has been a continuing political and legal trend to kill, rather than capture, those suspected of terrorism. The forces targeting Gaddafi acted under Chapter VII of the UN Charter, using force under the guise of UN Security Council Resolution 1973 and UN Security Council Resolution 2009 rather than seeking prosecution using warrant-based targeting to bring terrorists to justice before a domestic tribunal or the International Criminal Court (ICC). The UN-authorized intervention in Libya allowed UN member states to "take all necessary measures ... to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya." Extensive tracking, investigation and a lengthy trials process for trying tyrants and terrorists may be supplanted by the trend of foreign intervention, targeted killings and domestic extrajudicial sanctions, as was seen with Osama Bin Laden's death and those that followed. Who will be next in this cycle of expedient justice?
Summary extracted by Aspals
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October 2011 Intervention in the Internal Affairs of States Anthony Paphiti International Relations
The moral imperative to intervene in a nation's internal affairs where acts of genocide are threatened is a powerful one. NATO action in Libya may have inflicted serious damage on future UN resolutions aimed at protecting a population from attack by its own government forces, as has been seen in the case of the attempt to pass a resolution over Syria. The UN passed UNSCR 1973 without (a) evidence of genocide and (b) by arbitrarily determining that the internal situation was a threat to international peace. That the UN is eager to push the doctrine of R2P and to re-define sovereignty to permit intervention in a state's internal affairs is testimony to the fact that the Charter does not provide that legal authority. It should.
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October 2011 Detention abuses staining the new Libya Amnesty International Report
Armed militia opposing Colonel Mu'ammar al-Gaddafi have captured and detained about 2,500 people in the capital Tripoli and surrounding areas since the National Transitional Council (NTC) took control of these areas in late August 2011. Those detained include al-Gaddafi soldiers and alleged loyalists, commonly known as the "fifth column". Among them are members of the Internal Security Agency, Revolutionary Committees and Revolutionary Guards – bodies associated with the worst repression of Colonel al-Gaddafi's 42-year-old rule – as well as "volunteers", including children (under 18 years), who responded to calls by Colonel al-Gaddafi to join his forces. Sub-Saharan Africans suspected of being mercenaries comprise between a third and a half of those detained in Tripoli, its suburbs of Janzur and Tajura, and al-Zawiya, a city about 100km west of Tripoli. Detainees are being held in former prisons as well as in makeshift detention facilities such as schools, football clubs and apartments. These are not overseen by the Ministry of Justice and Human Rights, but are simply controlled by local councils, military councils and brigades (kataeb), or by the Free Libya Armed Forces (members of the regular armed forces who took sides against Colonel al-Gaddafi and civilians who took up arms).Beatings and other ill-treatment are common, particularly upon capture and in the first days of detention. Impunity for such abuses remains entrenched. Libyan and foreign detainees have also complained of torture at the hands of their captors and guards.
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September 2011 The European Court of Human Rights' Al-Jedda judgment: the oversight of international humanitarian law Jelena Pejic International Review of the Red Cross, No 883
30 September 2011
The European Court of Human Rights' judgment in the Al-Jedda case dealt with the lawfulness of UK detention practice in Iraq under the European Convention on Human Rights. The Court's opinion could, however, be read as having broader implications for the ability of states parties to that treaty to conduct detention operations in situations of armed conflict. This article analyzes what the Court did – and did not say – about the application of international humanitarian law. A principal consequence of the Court's decision is that ECHR member states will in future have to secure 'clear and explicit language' on detention/internment in a Chapter VII UN Security Council in order to avoid a conflict with the ECHR. The Court did not indicate what level of specificity would be desired.
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September 2011 Accidental Heroes, Britain, France and the Libya Operation An Interim RUSI Campaign Report Read on-line
Britain, France and the United States can take some justifiable credit for the success of the Libyan operation. Whatever happens next in Libya, there can be no doubting that the allied air operation was critical to saving many innocent lives and removing a dictatorial regime. Britain and France, almost alone among the international community, took a consistent and robust line from the beginning and have now seen it through to the verge of military success. They deserve the plaudits. This Interim Report on the Libya operation marks the opening of RUSI's research work to examine all aspects of the campaign. Several features of this operation show evidence of improvisation, innovation, and good luck, as well as the characteristic military professionalism of the allied forces involved. Amid the justifiable satisfaction of military success, this was nevertheless a curious operation – both politically and militarily – that will offer many pointers for the future and will require careful analysis.
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September 2011 The Battle For Libya: Killings, Disappearances And Torture Amnesty International Amnesty Report, 13 September
Inspired and emboldened by anti-government protests sweeping across the Middle East and North Africa region, Libyans called for 17 February 2011 - the fifth anniversary of a brutal crackdown on a public protest in Benghazi - to be their "Day of Rage" against Colonel Muammar al-Gaddafi's four-decade long repressive rule. Until opposition forces finally stormed the capital, Tripoli, in late August, Colonel al-Gaddafi had controlled Libya for over four decades. In the unrest and ongoing armed conflict, al-Gaddafi forces committed serious violations of international humanitarian law (IHL), including war crimes, and gross human rights violations, which point to the commission of crimes against humanity. They deliberately killed and injured scores of unarmed protesters; subjected perceived opponents and critics to enforced disappearance and torture and other illtreatment; and arbitrarily detained scores of civilians. Members and supporters of the opposition, loosely structured under the leadership of the National Transitional Council (NTC), based throughout the conflict in Benghazi, have also committed human rights abuses, in some cases amounting to war crimes, albeit on a smaller scale. In the immediate aftermath of taking control in eastern Libya, angry groups of supporters of the "17 February Revolution" shot, hanged and otherwise killed through lynching dozens of captured soldiers and suspected foreign "mercenaries" — and did so with total impunity. Such attacks subsequently decreased, although Sub-Saharan African nationals continued to be attacked on what have proved to be largely unfounded suspicions that they were foreign "mercenaries" hired by Colonel al-Gaddafi. Opposition supporters targeted suspected al-Gaddafi loyalists and former members of some of the most repressive security forces. Rebels also tortured and ill-treated captured soldiers, suspected "mercenaries" and other alleged al-Gaddafi loyalists. The exact number of victims of lynching, including those who were beaten to death, shootings and public hangings is difficult to establish given the reluctance of witnesses, forensic doctors, prosecutors, medical staff and others to provide details of the attacks. NATO was accused by Gaddafi of killing over 800 civilians. The situation developed into an internal armed conflict, between the goverment and rebel forces, and an international armed conflict, as NATO engaged Libyan government forces. This is a most important analysis of the conflicts.
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September 2011 Law (and logistics) on the high seas Lt Cdr James Farrant RN Counsel Magazine
The author is a barrister employed by the Royal Navy, but not solely as a barrister. Uniquely in the Armed Services, the Royal Navy internally selects and trains its legal cadre. Competition for legal training places is fairly fierce. Most come from the Navy's Logistics Branch, as experience gained in personnel, discipline and other casework generates aptitude and appetite for legal work. Again, uniquely in the Armed Services, naval lawyers remain fully-fledged members of their source specialisation. Most continue to act as Logistics Officers at sea in addition to their legal duties: which is how he found himself in HMS Cumberland as the head of the Logistics Department. He gives his account of life onboard ship following the passage of UN Security Council Resolution 1973 authorising the establishment of a "No Fly Zone" and enforcement of the arms embargo against Libya "by all necessary means" as part of The NATO task group operations and denial of the sea space to anyone attempting to breach the Resolution. The author is also a door tenant at 18 Red Lion Court, which shows the enlightened approach of the Navy Legal Branch in allowing serving lawyers to maintain professional links with chambers. The other 2 services might learn much from this.
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August 2011 Al-Skeini may open door to more war claims Melina Padron Human Rights Blog, August 15, 2011
The recent European Court of Human Rights (ECtHR) judgment in Al-Skeini will certainly enter the Court's hall of fame as a landmark judgment for pushing the boundaries of the European Convention on Human Rights's jurisdiction. While it may take us some time to appreciate the full implications of this judgment, one of its possible consequences is the potential opening of the Court's doors to claims arising from international armed conflicts.
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2011 Commanding United Nations Peacekeeping Operations Major General Tim Ford Peace Operations Training Institute
Materials for this course, which is designed for those who may find themselves in leadership positions in UN peacekeeping operations, or for those wishing to understand the issues associated with commanding in peacekeeping operations. It should prove useful to participants at the strategic, operational, or tactical level, to senior and junior leaders, to those appointed to UN command and staff positions, and to those with national command or staff responsibilities. It is applicable to civilian, military, and police appointments, although the later sections of the course concentrate principally on the issues that arise within military and police contingents. It should also be useful to those in organizations that need to interact with UN peacekeeping missions or with the Department of Peacekeeping Operations (DPKO) in the UN Secretariat, such as Member States, regional organizations, non-governmental organizations (NGOs), and other UN organizations and agencies.
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July War, power and control: the problem of jurisdiction Alasdair Henderson Human Rights Blog, 1 Crown Office Row, July 14, 2011
The decisions by the Grand Chamber of the European Court of Human Rights in Al-Skeini and Al-Jedda, handed down last Thursday, have generally been hailed as leap forward for human rights protection. We have already provided a summary of the decisions and pointed to some of the commentary here. However, it is worth considering the core parts of these rulings a little more carefully. Without wishing to put too much of a dampener on the initial excitement from human rights campaigners about the outcome, the Court's reasoning is perhaps not quite the radical breakthrough it first appeared to be.
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July European Convention on Human Rights applied in Basrah, UK failed duties to Iraqi civilians Adam Wagner Human Rights Blog, 1 Crown Office Row, July 7, 2011
The Grand Chamber of the European Court of Human Rights has ruled that from 1 May 2003 to 28 June 2004 the UK had jurisdiction under Article 1 (obligation to respect human rights) of the European Convention on Human Rights in respect of civilians killed during security operations carried out by UK soldiers in Basrah. This blog looks at the implications.
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July The UN and Libya: Intervention or Interference Khawar Qureshi QC Counsel, July 2011
In a stimulating article the author sets out the law behind the military intervention in Libya and examines its legality. In his view, article 39 of the Charter was engaged because of the alleged gross violation of human rights of the Libyan people perceived by the UNSC (cf "Humanitarian Intervention" below). He explores the dangers of humanitarian intervention being used as a tool for regime change. He also discusses the concern about "mission creep" and the statement by Messrs Obama, Cameron and Sarkhozy expressed in their letter of 15 April 2011 that Colonel Gaddafi "must go, and go for good" (whatever that means). He concludes that the UNSC is endowed with great powers which can and should be used consistently to address grave violations of human rights, where the evidence is clear and compelling. Whether the UNSC can or will be able to act in such a manner will depend upon its moral authority. Libya is yet another crucial test in this regard.
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June 2011 Aggression as 'Organized Hypocrisy?' – How the War on Terrorism and Hybrid Threats Challenge the Nuremberg Legacy Sascha-Dominik Bachmann and Gerhard Kemp Social Science Research Network
Free download
Modern threats to international peace and security from so called, "hybrid threats," such as cyber war, low intensity asymmetric conflict scenarios, global terrorism, etc., which involve a diverse and broad community of affected stakeholders involving both regional and international organisations/structures, also pose further questions for the existing legacy of Nuremberg. The (perhaps unsettling) question arises of whether our present concept of, "war and peace," with its legal pillars of the United Nations Charter's Articles 2(4), 51, and the notion of the criminality of waging aggressive war based on the, "legacy," of Nuremberg has not become outdated to respond to new threats arising in the 21st century. This article also serves to warn that one should not use the definition of aggression, adopted at the ICC Review Conference in Kampala in 2010, to repeat the most fundamental flaw of Nuremberg: Ex post facto criminalisation of the (unlawful) use of force. A proper understanding of the, "legacy of Nuremberg," and a cautious reading of the text of the ICC definition of aggression provide some markers for purposes of the debate on the impact of new threats to peace and security and the use of force in international law and politics.
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June Intervention in The Internal Affairs of States Anthony Paphiti Aspals Documents
[Updated September, 2011]
The coalition campaign against Libya, under the legal authority of UN Security Council Resolution 1973, is principally advertised as humanitarian in aim, to protect civilians. But to what extent does the UN Charter permit legitimate violation of the sovereignty of another state, in the absence of international armed conflict or acts of self defence? The author's sceptical approach to the concept of R2P raises a concern at the device employed by the UN to engage the Charter when, in fact, no lawful justification existed as the situation in Libya at that time did not pose a real threat to international peace.
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June Torture: Finding our moral compass By Morris Davis Crimes of War
The imagery depicting the mutilated body of 13-year old Hamza Ali al-Khateeb was rapidly disseminated around the world and is Syrian President Bashar al-Assad's Abu Ghraib; iconic images documenting torture forever etched into the record of his government's infamous history. In dealing with this vexed and troublesome issue, the author (who was the former chief military prosecutor for the military commissions) asks, "Do decent human beings have the temerity to stand up and insist the law be enforced? Does the United States have the integrity to lead by example, or has the government engaging in torture become as accepted as government official lying when the truth is inconvenient? We need to find our moral compass."
Summary extracted by Aspals
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June New Directions in Responsibility: Assessing the International Law Commission's Draft Articles on the Responsibility of International Organizations Kristen E. Boon YJIL Online, Volume 37 (Spring 2011)
Free to download
The International Law Commission's (ILC) Draft Articles on the Responsibility of International Organizations (Draft Articles) are a critical new development in the law regulating international organizations (IOs). If adopted, these Articles will create a legal framework—although not a forum—to sue IOs that commit internationally wrongful acts. The Draft Articles create a law of "consequences": they lay out rules of attribution, excuses precluding wrongfulness, effects of a breach, and principles of reparations. The 2011 military intervention in Libya highlights the practical application of these principles.
Summary by YJIL
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18 March No-Fly Zones: Strategic, Operational, and Legal Considerations for Congress Jeremiah Gertler, Christopher M. Blanchard, Stephen Daggett, Catherine Dale, Jennifer K. Elsea, Richard F. Grimmett Congressional Research Service,
CRS Report for Congress
Practitioners and observers have debated what constitutes international 'authorization' for the establishment of a no-fly zone. Given the paucity of relevant precedents, and the dissimilarities among them, there may not exist a single, clear, agreed model. The concept of authorization is typically considered to be linked to the ideas of both 'legality' and 'legitimacy'–the three concepts overlap but are all distinct. The precise meaning of each of the terms is still debated. Express authorization from the U.N. Security Council provides the clearest legal basis for imposing a no-fly zone.
Summary extracted by Aspals
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June Wings over Libya: The No-Fly Zone in Legal Perspective Professor Michael N. Schmitt YJIL Online, Volume 36 (Spring 2011)
Free to download
On March 17, 2011, the United Nations Security Council adopted Resolution 1973, which imposed "a ban on all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians." Excluded from the scope of the ban are humanitarian flights, those evacuating foreign nationals from the country, and any other flights authorized by states enforcing the no-fly zone. Going beyond simply banning aerial activity, the Security Council further authorized "Member States that have notified the Secretary-General and the Secretary-General of the League of Arab States, acting nationally or through regional organizations or arrangements, to take all necessary measures to enforce compliance." The reference to "all necessary means" is the standard phrase the Security Council uses to authorize states to act militarily. Pursuant to the Resolution, states can operate alone, in an ad hoc coalition, through a regional organization such as NATO, or a combination thereof.
Summary by YJIL
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6 June 2011 Popular Protest In North Africa And The middle East (V: Making Sense Of Libya Crisis Group Middle East/North Africa Report N°107, 6 June 2011
Free to download
The character of the Libyan crisis today arises from the complex but so far evidently indecisive impact of the UN-authorised military intervention, now formally led by NATO, in what had already become a civil war. NATO's intervention saved the anti-Qaddafi side from immediate defeat but has not yet resolved the conflict in its favour. Although the declared rationale of this intervention was to protect civilians, civilians are figuring in large numbers as victims of the war, both as casualties and refugees, while the leading Western governments supporting NATO's campaign make no secret of the fact that their goal is regime change. The country is de facto being partitioned, as divisions between the predominantly opposition-held east and the predominantly regime-controlled west harden into distinct political, social and economic spheres. As a result, it is virtually impossible for the pro-democracy current of urban public opinion in most of western Libya (and Tripoli in particular) to express itself and weigh in the political balance.
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18 May Targeted Killing as a Means of Asymmetric Warfare: A Provocative View and Invitation to Debate Sascha-Dominik Bachmann and Ulf Haeussler Social Science Research Network
Free on-line
The killing of Mahmoud al-Mabhou reportedly by agents of Israel's Mossad service in Dubai a year ago serves as a quick reminder that extrajudicial executions, assassinations and other targeted killing operations are taking place and are part of a modern democracy's arsenal of antiterrorism and counter-terrorism means. Targeted Killing Operations reportedly form part of NATO's operational practice: depending on the circumstances they represent just another option of the lawful use of force in an armed conflict or assimilated situations. Consequently, it is argued that International Law does not impose an explicit ban on the lethal neutralization of certain persons in an armed conflict scenario.
Summary by Authors
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17 May Control Orders Post 9-11 and Human Rights in the United Kingdom, Australia and Canada – A Kafkaesque Dilemma? Sascha-Dominik Bachmann and M Burt Social Science Research Network
Deakin Law Review, Vol. 15, No. 2, 2010
This article aims to assess the impact that the European Convention of Human Rights, incorporated into British law through the Human Rights Act 1998, has had on the control order regime in the United Kingdom. It will discuss recent British jurisprudence on the topical question whether there can be a true balance between the civil liberties of an individual and the need to protect state and society from a continuing terrorist threat. The article compares the UK's present control order system of summer 2010 with similar legislation, which the Commonwealth jurisdictions of Australia and Canada enacted to protect their nations from the threat of terrorism. It will conclude with a discussion of possible reforms as well as other security measures that have been identified as alternatives to control orders and which form the basis of present UK governmental initiatives to limit scope and impact of Anti Terrorism Legislation.
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18 May The International Criminal Court and Gaddafi Chris Marsden On-line
The request by chief prosecutor Luis Moreno-Ocampo that arrest warrants for war crimes be issued against Colonel Muammar Gaddafi, his son Saif al-Islam, and the head of Libya's intelligence service, Abdullah al-Senussi, have the aim of preventing any possibility of a negotiated end to the war, and to further isolate Gaddafi and pave the way for regime-change. Rather than allow Gaddafi to sue for peace, NATO has stepped up air strikes on Tripoli. The ICC's role in the Libyan war is consistent with its previous record of service to imperialism. The US has refused to recognise the authority of ICC, as have—either formally or in practice-- Russia, China, Israel and dozens of other countries. Yet, thanks to its position on the UN Security Council, the USA can refer alleged crimes to a court it does not recognise.
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May 2011 Intervention or interference? Khawar Qureshi QC New Law Journal,
Vol 161, Issue 7464, 6 May 2011
Khawar Qureshi QC examines the legality of the UN's stance on Libya by analysing the two Security Council Resolutions and the arguments supporting and questioning the extent to which they have been complied with by the coalition. He considers three questions in overview: (a) What is the legal basis for Chapter VII UNSCRs?; (b) What is the key content and legal effect of the measures adopted by the UN Security Council (principally UNSCR 1970 and 1973)?; (c) What is the legal basis for the announcement on 19 April 2011 that a small number of UK and French "non-combat" troops will be sent to Libya to assist the opposition groups? He concludes by saying "the UNSC is endowed with great powers which can and should be used consistently to address grave violations of human rights, where the evidence is clear and compelling. The skeptics have yet to be satisfied that the UNSC can (or will) act in this way. The moral authority and legitimacy of the UNSC is being tested yet again by the events in Libya." He also raises as a fundamental and vexed question: whether grounds for 'humanitarian intervention' can or should be characterised as a threat to, or breach of the peace, such as to justify measures to 'maintain international peace and security'. [See also, in this context, the comments on the Sounding Board].

See also, [Law Society Gazette, 6 May 2011]
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May 2011 Death by humanitarianism by Noah Tucker 21st Century Socialism,
May 1st 2011
The author states that "[t]o give as the reason for killing large numbers of people that by doing so one is saving lives, is to make an audacious claim. Were it not made by the leaders of our side in a war, such an assertion would be treated with- at the very least- healthy skepticism." The translated text of Col Gaddafi's speech of 17 March is included, to show that he actually did not make a threat to massacre his own people. Yet journalists and politicians, almost unanimously, merely repeat and elaborate that claim, rather than subjecting it to scrutiny. The author argues that almost any allegation of atrocity, in the past, present or projected future, can be made in support of 'humanitarian' war, with little fear of widespread contradiction. He points out the reasons for the inconsistency in approach in relation to uprisings in other Arab states and looks at the role played by oil in influencing decisions of the coalition.
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March 2011 In full: UK government's legal advice on Libya Advice to Prime Minister BBC News, 21 March 2011
The reference link is to the the full text of the UK government's note, released on 21 March 2011, on the legal basis for deployment of UK forces and military assets to Libya. The advice follows the UN Security Council Resolution 1973. It determines that Libya constitutes a threat to international peace and security.
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February 2011 Report of the Public Commission To Examine the Maritime Incident of 31 May 2010 - Part One (the Mavi Marmara Incident) Turkel Commission Web Access
On January 3, 2009 Israel established a naval blockade off the coast of the Gaza Strip as part of its armed conflict with Hamas. In the days preceding May 31, 2010, a flotilla of six vessels approached the coastline of Israel, with approximately 700 persons on board. The largest of the ships in the flotilla, the Mavi Marmara, had approximately 590 passengers and crew on board. On May 31, 2010, IDF forces intercepted and boarded the Mavi Marmara during an operation to enforce the naval blockade against the Gaza Strip. During the boarding and takeover of the ship, the IDF forces encountered violent resistance. When the hostilities ended, nine of the ship's passengers had been killed and fifty-five were wounded. Nine IDF soldiers were also wounded. On June 14, 2010 the Government of Israel established an independent public Commission to examine various aspects of the actions taken by the State of Israel. Two foreign experts were also appointed to act as observers and were full partners in the Commission's work, as if they were actual members but were not given the right to vote. The conclusion of the Commission is that — despite the fact that several incidents have not been fully clarified — overall the actions undertaken were lawful and in conformity with international law.
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February 2011 Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden [Hardcover] Robin Geiss and Anna Petrig
Since 2008 increasing pirate activities in Somalia, the Gulf of Aden, and the Indian Ocean have once again drawn the international community's attention to piracy and armed robbery at sea. States are resolved to repress these impediments to the free flow of trade and navigation. To this end a number of multinational counter-piracy missions have been deployed to the region. This book describes the enforcement powers that States may rely upon in their quest to repress piracy in the larger Gulf of Aden region. The piracy rules of the United Nations Convention on the Law of the Sea (UNCLOS) and the legal safeguards applicable to maritime interception operations are scrutinized before the analysis turns to the criminal prosecution of pirates and armed robbers at sea. The discussion includes so-called shiprider agreements, the transfers of alleged offenders to regional states, the jurisdictional bases for prosecuting pirates, and the feasibility of an international(ized) venue for their trial. In addressing a range of relevant issues, this book presents a detailed and comprehensive up-to-date analysis of the legal issues pertaining to the repression of piracy and armed robbery at sea and assesses whether the currently existing legal regime is still adequate to effectively counter piracy in the 21st century.
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February 2011 First Joint Russian-U.S. report on Cyber Conflict Karl Rauscher and Andrey Korotkov, The EastWest Institute Access Here
The EastWest Institute released the first joint Russian-American report aimed at defining the "rules of the road" for cyber conflict. Prepared by a team of Russian and U.S. experts convened by EWI, Working Towards Rules for Governing Cyber Conflict: Rendering the Geneva and Hague Conventions in Cyberspace explores how to extend the humanitarian principles that govern war to cyberspace.Rauscher and Andrey Korotkov, the leader of the Russian experts group, are the principal co-authors of the report. They led the cyber and traditional security experts through a point-by-point analysis of the Geneva and Hague Conventions. Ultimately, the group made five immediate recommendations for Russian and U.S.-led joint assessments, each exploring how to apply a key convention principle to cyberspace, each focused on a crucial question. The report is the first product of an ongoing EWI Track 2 bilateral program that seeks to open dialogue, build sustainable trust and have a positive impact on cybersecurity.
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February 2011 Sixth report (The Prevention of Terrorism Act 2005) Lord Carlile Access Here
This report includes the annual review of the operation in 2010 of the control orders system and concluded that the control orders system, or an alternative system providing equivalent and proportionate public protection, remains necessary, but only for a small number of cases where robust information is available to the effect that the individual in question presents a considerable risk to national security, and conventional prosecution is not realistic. He considers it is unrealistic in the extreme, and unhelpfully misleading, to suggest that post-charge questioning and/or the admission of intercept evidence would increase measurably the prospects of successful prosecution of individuals currently subject to control orders. In reviewing relevant caselaw, he mentions that the Government sought by intervention in the ECtHR to argue that (a) where a person seeks to resist removal from UK on the grounds of risk of ill-treatment in their home country, this may be balanced against the threat they pose to national security if they remain; and (b) where the person poses a risk to national security, this has an impact on the standard to which he must establish a risk of ill-treatment — he should at least be required to show that it is more likely than not that he would be subject to ill-treatment contrary to Article 3. The ECtHR rejected both arguments. This leaves the UK reliant on DWA arrangements. The effect is to make the UK a safe haven for some individuals whose determination is to damage the UK and its citizens, hardly a satisfactory situation save for the purist. A most valuable contribution to the debate about the extent of human rights arguments in matters of national security and counter-terrorism.
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January 2011
Accountability for Collective Wrongdoing [Hardcover] Tracy Isaacs (Editor), Richard Vernon (Editor)
Ideas of collective responsibility challenge the doctrine of individual responsibility that is the dominant paradigm in law and liberal political theory. But little attention is given to the consequences of holding groups accountable for wrongdoing. Groups are not amenable to punishment in the way that individuals are. Can they be punished — and if so, how — or are other remedies available? The topic crosses the borders of law, philosophy and political science, and in this volume specialists in all three areas contribute their perspectives. They examine the limits of individual criminal liability in addressing atrocity, the meanings of punishment and responsibility, the distribution of group punishment to a group's members, and the means by which collective accountability can be expressed. In doing so, they reflect on the legacy of the Nuremberg Trials, on the philosophical understanding of collective responsibility, and on the place of collective accountability in international political relations.
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