Aspals Reading List - 2012

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Date Title Author Reference
2012 Principles Relevant To The Scope Of A State's Right Of Self-Defense Against An Imminent Or Actual Armed Attack By Nonstate Actors Daniel Bethlehem  The American Journal Of International Law
Vol. 106:000, at p.1
There has been an ongoing debate over recent years about the scope of a state's right of self-defense against an imminent or actual armed attack by nonstate actors. The debate predates the Al Qaeda attacks against the World Trade Center and elsewhere in the United States on September 11, 2001, but those events sharpened its focus and gave it greater operational urgency. While an important strand of the debate has taken place in academic journals and public forums, there has been another strand, largely away from the public gaze, within governments and between them, about what the appropriate principles are, and ought to be, in respect of such conduct. Insofar as these discussions have informed the practice of states and their appreciations of legality, they carry particular weight, being material both to the crystallization and development of customary international law and to the interpretation of treaties. The author suggests 16 principles relevant to the scope of a state's right of self-defense against an imminent or actual armed attack by Nonstate Actors.
Summary by Aspals

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2012 The Law of Operational Targeting: Viewing the LOAC Through an Operational Lens Professor Geoffrey Corn and Lt Col Gary Corn  Texas International Law Journal
Volume 47, Issue 2, pp.337-380
Understanding how air and missile warfare is planned, executed, and regulated requires more than just an understanding of relevant LOAC provisions. In U.S. practice (and that of many other countries), air and missile warfare is one piece of a broader operational mosaic of law and military doctrine related to the joint targeting process. A genuine understanding of the law of air and missile warfare necessitates understanding how the LOAC influences and is integrated within this targeting process. How operational commanders select, attack, and assess potential targets and how the LOAC reflects the logic of military doctrine related to this process is therefore the objective of this Article. To achieve this objective, the authors focus on a recent decision by the International Criminal Tribunal for the Former Yugoslavia (ICTY),Prosecutor v. Gotovina. Although the military operation at the center of this case involved only limited use of air and missile warfare, the ICTY's extensive focus on the use of artillery and rocket attacks provides a useful and highly relevant illustration of why understanding the interrelationship between law and military doctrine is essential for the logical and credible development of the law. The authors therefore seek to "exploit" this case as an opportunity to expose the reader to this interrelationship, an interrelationship equally essential to the effective evolution of the law of air and missile warfare.
Summary by Aspals

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2012 "Unwilling or Unable": Toward a Normative Framework for Extra-territorial Self-Defense Ashley S. Deeks  Ashley Deeks Virginia Journal of International Law Association
2012, Vol. 52:483
Nonstate actors, including terrorist groups, regularly launch attacks against states, often from within the territory of another state. When a victim state seeks to respond with force to such attacks, it must decide whether to use force on the territory of a state with which it may not be in conflict. International law traditionally requires the victim state to assess whether the territorial state is "unwilling or unable" to suppress the threat itself. Only if the territorial state is unwilling or unable to do so may the victim state lawfully use force. Yet there has been virtually no discussion, either by states or scholars, of what that test requires. The test's lack of content undercuts its legitimacy and suggests that it is not currently imposing effective limits on the use of force by states at a time when transnational armed violence is pervasive. This Article provides the first sustained descriptive and normative analysis of the test. Descriptively, it explains how the "unwilling or unable" test arises in international law as part of a state's inquiry into whether it is necessary to use force in response to an armed attack. It identifies the test's deep roots in neutrality law while simultaneously illustrating the lack of guidance about what inquiries a victim state must undertake when assessing whether another state is "unwilling or unable" to address a particular threat. Normatively, the Article plumbs two centuries of state practice to propose a core set of substantive and procedural factors that should inform the "unwilling or unable" inquiry. It then applies those factors to a real-world example —Colombia's use of force in Ecuador in 2008 against the Revolutionary Armed Forces of Colombia — to explore how the use of these factors would affect the involved states' decision-making and the evaluation by other states of the action's legality. The Article argues that the use of these factors would improve the quality of state decision-making surrounding the use of force in important substantive and procedural ways.
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2012 Copenhagen Process on the Handling of Detainees in International Military Operations Under the Auspices of the Foreign Ministry of Denmark US Department of State
2012
The Copenhagen Process was launched by the Danish Government in 2007 to address a range of practical and legal challenges to States and organisations involved in international military operations, in particular related to detention. The Copenhagen Process was launched in response to a growing international recognition that there was a need to find a multilateral and durable solution to the legal questions related to the handling of detainees in international military operations. Denmark hosted two international conferences and one expert seminar on the topic. The results of these meetings was the Copenhagen Process; Principles and Guidelines containing a set non-legally binding principles and guidelines on the handling of detainees in internationalised internal armed conflict and in peace operations. The Copenhagen Process; Principles and Guidelines were designed to be used as a tool in situations where detention occurs, and all UN Member States as well as international and regional organisations are invited to make use of the Principles and Guidelines as appropriate. Denmark has now started a process to introduce the Principles and Guidelines to all UN Member States through a series of meetings in relevant fora across the world.
Summary by Authors

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March International Law in Cyberspace: The Koh Speech and Tallinn Manual Juxtaposed By Michael N. Schmitt 54 Harv. Int'l L.J. Online 13 (2012)
2012
On September 18, 2012, State Department Legal Adviser Harold Koh took an important step towards publically elucidating the U.S. positions on how international law applies to cyberspace. At a conference sponsored by United States Cyber Command (USCYBERCOM), Mr. Koh offered brief answers to what he labeled the "fundamental questions" on the issue. He also identified several "unresolved questions" with which the United States would likely be forced to grapple in the future. Since the speech had been fully cleared in the interagency process, it can be viewed as reflecting the U.S. Government's views on the issues, not just those of Mr. Koh or the State Department. This article serves two purposes. First, it functions as a concordance between the positions articulated in the Koh speech and those found in the Tallinn Manual. The comparison is particularly apropos in light of the parallels in their content. Second, drawing on the Tallinn Manual, the article provides analytical granularity as to the legal basis for the positions proffered in the Koh Speech. In doing so, it usefully catalogues the various competing interpretive perspectives. The article is crafted around Mr. Koh's "Questions and Answers," which are reordered topically and set forth at the beginning of each section.
Summary by Author

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December Gaddafi's guns trigger collapse By Paul Melly The World Today, Volume 68, Number 11
Each December experts are asked to predict events around the world for the coming year. Many of these are blindingly obvious or just plain wrong. According to Silver, one of the reasons for this is the Web, which allows bad ideas to circulate until they become conventional wisdom. Chatham House experts look at some of the notable surprises of 2012, and ask why no one predicted them, and what we can learn. In their planning to support the Libyan revolution, Western powers appear to have neglected the impact on its sub-Saharan neighbours. This gap in thinking may reflect the institutional gulf in foreign ministries between sections focused on the Middle East and North Africa, including Libya, and the entirely separate departments that deal with tropical Africa. Putting right this oversight will be expensive and fraught with risk. An African intervention force is set to join national troops to tackle the jihadist rebels who have begun to trash the Islamic heritage of Timbuktu and imposed a brutal version of Sharia. But even if the radical Islamists are pushed out of key towns, restoring security and creating a new social and political deal for the region will be a huge challenge.
Summary extracted by Aspals

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December Missile Creep, Was giving Patriots to Turkey a step toward war in Syria? By Aaron Stein, Shashank Joshi Foreign Policy, 10 December
In 1913, General Otto Liman von Sanders became the head of the German military mission to the Ottoman Empire, part of a long line of Prussian advisers to Ottoman forces. Almost exactly a century on, up to 400 of Sanders's successors will be making the same trip, this time accompanied by a Patriot missile defense system. It will be the third Patriot deployment to that country since the end of the Cold War. The deployment is being heralded as a major development in the conflict within Syria, even being compared on Al Jazeera, quite absurdly, to the Cuban Missile Crisis. Rumors -- some seemingly encouraged by Turkish officials, others by Russians -- have declared that this is the first step to the establishment of a no-fly zone. Others have suggested that the Patriots are the prelude to an Israeli strike on Iran. The truth, however, is much more prosaic. Patriot deployment serves two purposes. First, it serves as a defensive move, aimed at protecting Turkish territory against a narrow range of threats. Second, it acts as a tangible political signal, with NATO personnel operating in Turkey. Not quite a trip wire, but better than reassuring words. In short, both Turkey and NATO are eager to maintain flexibility. Turkey has been unwilling to make the political decision to engage Syrian targets on Syrian territory other than in sporadic time- and space-limited retaliatory salvos. The deployment of Patriot missiles is not a step to intervention, but a compromise that keeps NATO at arms-length.
Summary extracted by Aspals

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November Bahrain: reform shelved, repression unleashed Report by Amnesty International Access the Report
The human rights situation in Bahrain has markedly deteriorated over recent months, with repressive practices increasingly entrenched and more and more flagrant government disregard for the recommendations of the Bahrain Independent Commission of Inquiry (BICI), set up to investigate widespread human rights violations during the 2011 uprising. The blanket ban issued in late October 2012 on all protests, and the increasing harassment and arrest of human rights activists, has meant hope for an improved human rights situation in Bahrain is fading. The US and UK governments applauded the establishment of the Bahrain Independent Commission of Inquiry (BICI) and welcomed its final report. Yet, in the face of the worsening human rights situation in the country, Bahrain's two allies have been more vocal in their criticism of the country's human rights record. However, officials have not matched these expressions of concern with any meaningful actions or consequences. Indeed, both governments continue to call for reconciliation and reform in Bahrain, clinging to the illusion of reform and minimizing blows to the stated reform process. On the first anniversary of the BICI report, Amnesty International continues to call for true justice and accountability in Bahrain. The Bahraini government must immediately release all prisoners of conscience; conduct independent, effective and transparent investigations into allegations of torture; bring to justice anyone at any level of the chain of command who committed or gave the orders to commit abuses; and refrain from further use of unnecessary or excessive force against protesters. The international community should immediately condemn human rights violations and match their condemnation with action.
Summary extracted by Aspals

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November Losing Humanity, The Case against Killer Robots Report by Human Rights Watch Access the Report
Governments should pre-emptively ban fully autonomous weapons because of the danger they pose to civilians in armed conflict, Human Rights Watch said in a report released today. These future weapons, sometimes called "killer robots," would be able to choose and fire on targets without human intervention. The 50-page report, "Losing Humanity: The Case Against Killer Robots," outlines concerns about these fully autonomous weapons, which would inherently lack human qualities that provide legal and non-legal checks on the killing of civilians. In addition, the obstacles to holding anyone accountable for harm caused by the weapons would weaken the law's power to deter future violations. "Giving machines the power to decide who lives and dies on the battlefield would take technology too far," said Steve Goose, Arms Division director at Human Rights Watch. "Human control of robotic warfare is essential to minimizing civilian deaths and injuries." "Losing Humanity" is the first major publication about fully autonomous weapons by a nongovernmental organization and is based on extensive research into the law, technology, and ethics of these proposed weapons. It is jointly published by Human Rights Watch and the Harvard Law School International Human Rights Clinic. Human Rights Watch and the International Human Rights Clinic called for an international treaty that would absolutely prohibit the development, production, and use of fully autonomous weapons. They also called on individual nations to pass laws and adopt policies as important measures to prevent development, production, and use of such weapons at the domestic level.
Summary by Aspals

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November Iraq soldier families can bring negligence but not human rights claims by Robert Kellar UK Human Rights Blog
9 November 2012
Last month, the Court of Appeal decided that the negligence claims of the families of five British soldiers killed or injured on duty in Iraq could go ahead. It would be for the High Court to decide on the facts whether decisions made about troops' equipment and training fell within the long-standing doctrine of 'combat immunity'. The appellants were however unsuccessful in arguing that the Human Rights Act 1998 (HRA) applied. The Court also dismissed arguments based upon combat immunity on the basis that the decisions in question were not necessarily made in "battle conditions" or "in the course of hostilities". However, it might be argued that the rationale for combat immunity is not limited to protecting the state from liability for difficult decisions made in the "heat of battle". An interesting analysis.
Summary by Aspals

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November Prosecutions for the services by Bruce Houlder QC DL Counsel Magazine, on-line
November 2012
The DSP is to the Armed Forces what the DPP is to civilians. Bruce Houlder QC DL, the first Director of Service Prosecutions, give a personal reflection of his years in the role as head of the tri-service Prosecuting Authority and his transition from seasoned civilian criminal practitioner to service criminal practitioner. He describes the role of the SPA, the varied and challenging work and the importance of maintaining independence, which remains at the core of the role.
Summary by Aspals

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October NATO's Treaty Obligations to Turkey: Theory and Practice By Michael Codner, Senior Research Fellow / Director, Military Sciences RUSI Analysis, on-line
5 Oct 2012
With the violence in Syria spilling into Turkey; the author argues that Turkey as a NATO member has the right to call on the support of the alliance under Article 5. However implementing collective security is always more complex, thus a full scale NATO response in Syria is unlikely. NATO has a North Atlantic Treaty commitment to the security of Turkey under Article V. That does not mean of course that NATO would necessarily have to commit forces to the defence of Turkey unless Turkey did not have the capacity to defend itself. In this case Turkey certainly does have the capacity. Syrian shelling of Turkish territory and resultant deaths certainly invoke Article V but the first stage under the Treaty is one of members discussing response not necessarily committing forces. NATO's political and diplomatic support for Turkey is entirely in support of the Treaty Articles.
Summary extracted by Aspals

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October China, International Law, and Cyberspace by Adam Segal Council on Foreign Relations
2 October 2012
Do cyber attacks constitute a breach of IHL? The UK and US say they do. China and other countries say they do not. The author points out that a failure to agree on these norms is destabilizing. One country may see its action as permissible, the other as an act of war. It is unclear how wedded Beijing is to its opposition to cyber and LOAC, and we could begin to see some modification of the Chinese position. Wang Tianlong argued "we should study the feasibility of applying the principles of the Law of Armed Conflict to cyberspace and push for the formulation of a code of conduct for cyberconflict."
Summary by Aspals

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October
A Very British Killing: The Death of Baha Mousa A. T. Williams (Author) ISBN-10: 0224096885;
ISBN-13: 978-0224096881
On 15 September 2003 Baha Mousa, a hotel receptionist, was killed by British Army troops in Iraq. He had been arrested the previous day in Basra and was taken to a military base for questioning. For forty-eight hours he and nine other innocent civilians had their heads encased in sandbags and their wrists bound by plastic handcuffs and had been kicked and punched with sustained cruelty. A succession of guards and casual army visitors took pleasure in beating the Iraqis, humiliating them, forcing them into stress positions in temperatures up to 50 degrees Centigrade, and watching them suffer in the dirty concrete building where they were held. Other soldiers, officers, medics, the padre, did not take part in the violence but they saw what was happening and did nothing to stop it. Some knew it was wrong. Some weren't sure. Some were too scared to intervene. But none said anything or enough until it was far too late and Baha Mousa had been beaten to death. This book allegedly tells the inside story of these crimes and their aftermath. It examines the institutional brutality, the bureaucratic apathy, the flawed military police inquiry and the farcical court martial that attempted to hold people criminally responsible. Even though a full public inquiry reported its findings into the crimes in September 2011, its mandate restricted what it could say. The full story, told with the power of a true-crime expose or court-room drama, shows how this was not simply about a few bad men or 'rotten apples'. It shines a light on all those involved in the crime and its investigation, from the lowest squaddie to the elite of the army and politicians in Cabinet. What it reveals is devastating.
Summary by Amazon

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September Living Under Drones: Death, Injury and Trauma to Civilians from US Drone Practices in Pakistan Stanford Law School (Stanford Clinic) and the Global Justice Clinic at New York University School of Law (NYU Clinic) On-Line
Executive Summary and Report
In the United States, the dominant narrative about the use of drones in Pakistan is of a surgically precise and effective tool that makes the US safer by enabling "targeted killing" of terrorists, with minimal downsides or collateral impacts. This narrative is false. Following nine months of intensive research"including two investigations in Pakistan, more than 130 interviews with victims, witnesses, and experts, and review of thousands of pages of documentation and media reporting"this report presents evidence of the damaging and counterproductive effects of current US drone strike policies. Based on extensive interviews with Pakistanis living in the regions directly affected, as well as humanitarian and medical workers, this report provides new and firsthand testimony about the negative impacts US policies are having on the civilians living under drones. Real threats to US security and to Pakistani civilians exist in the Pakistani border areas now targeted by drones. It is crucial that the US be able to protect itself from terrorist threats, and that the great harm caused by terrorists to Pakistani civilians be addressed. However, in light of significant evidence of harmful impacts to Pakistani civilians and to US interests, current policies to address terrorism through targeted killings and drone strikes must be carefully re-evaluated. It is essential that public debate about US policies take the negative effects of current policies into account.
Summary byAuthors

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September Baha Mousa Public Inquiry Report British Irish Rights Watch On-Line
Executive Summary, Report and Submission
"In this report BIRW has highlighted the link between Belfast 1971 and Basra 2003, based on more than 20 years documenting the tactics used by the British Army in Northern Ireland. The similarities sadly speak for themselves. Some comfort can be taken from the fact that the Baha Mousa Inquiry was able to establish the truth, prompting a statement of condemnation from David Cameron and a formal apology from the Ministry of Defence. As the report notes, we now have an inquiry model that can be replicated in order to help ensure that future inquiries are fair and effective." [Note that, in §6.4 of the report, it is said: "BIRW have no difficulty at all, in the light of all the evidence, in concluding that not only was Baha Mousa tortured, he was murdered." Murder requires the prosecution to prove an intention either (a) to kill or (b) to do grievous ie really serious, bodily harm. The report does not point to the evidence which it says supports its view].
Summary by Baroness Helena Kennedy, QC

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30 August 2012
A Close Run Thing: The Navy and the Falklands War [Kindle Edition] Richard Freeman
Thirty years ago, in 1982, Argentina invaded the Falkland Islands, triggering the last great naval battle of the 20th-century. The British Task Force sent to re-claim the islands, was the largest amphibious landing since D-day in the Second World War. In this ground-breaking essay, the acclaimed naval historian Richard Freeman tells the story of Royal Navy in that momentous campaign. The ships had to transport the men, their machines and equipment, but also to supply them at a distance of nearly 8000 miles from their home ports. This the Navy did while under constant attack from missile-laden Argentine aircraft. The cost was high, with around 1,000 killed and wounded sailors and the loss of seven ships, twenty-four helicopters and ten fighter planes. This dramatic, enthralling book tells the story of the naval war, and the men and ships who fought it. And it explores the defence issues which it raised then and raises today. At the time the whole operation was hazardous in view of the depleted state of the Fleet. Today it would be impossible. Published to coincide with the 30th anniversary of the war Freeman examines how the battles for the Falklands fits into Britain naval history, and what lessons it still has for today.
Summary by Amazon

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30 August 2012 The Tallinn Manual on the International Law Applicable to Cyber Warfare (Draft) General Editor, Mike Schmitt Cambridge University Press
A draft Manual produced by a panel of international experts, to address the growing phenomenum known as cyberwarfare. The Tallinn Manual pays particular attention to the jus ad bellum, the international law governing the resort to force by States as an instrument of their national policy, and the jus in bello, the international law regulating the conduct of armed conflict (also labelled the law of war, the law of armed conflict, or international humanitarian law). Related bodies of international law, such as the law of State responsibility and the law of the sea, are dealt within the context of these topics. The Tallinn Manual is not an official document, but instead an expression of opinions of a group of independent experts acting solely in their personal capacity. It does not represent the views of the Centre, our Sponsoring Nations, or NATO. It is also not meant to reflect NATO doctrine. Nor does it reflect the position of any organization or State represented by observers.
Summary extracted by Aspals

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30 August 2012 Syria: no end in sight? Ben Smith Research Paper 12/48 30 August 2012
In summer 2012, the tempo of the Syrian conflict suddenly appeared to quicken. After long months during which many predicted a stalemate between the two sides, a bomb killed some of the Syrian government's top security personnel, the authorities appeared to be losing control of much larger areas of the country, and more senior figures defected, including the Prime Minister. Syria's background in ethnic and sectarian divisions and its history of extreme instability have created the conditions for the present bloodshed. Syria's opposition, too, is divided and unstable; this has been one of the obstacles to the outside world providing assistance to the opposition. This paper describes Syria's sectarian and political history, and discusses the forces involved in the conflict. It considers the role played by other countries in trying to influence the course of events and points up the many obstacles to effective intervention. Lastly, it looks at some possible outcomes. The paper does not give a running commentary on the conflict itself. Information about opposition forces, both military and political, inside Syria and about the remaining strength of the loyalist forces is difficult to come by and such as is available will not remain accurate for very long.
Summary by Author

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August 2012 No Easy Day Mark Owen (Author), Kevin Maurer (Author)
For the first time anywhere, a first-person account of the planning and execution of the Bin Laden raid from inside the US Navy SEAL team who carried out the extraordinary mission to kill the terrorist mastermind. From the streets of Iraq to the successful rescue of Captain Richard Phillips from pirates in the Indian Ocean; from the mountaintops of Afghanistan to the third floor of Osama bin Laden's compound in Pakistan, operator Mark Owen of the US Naval Special Warfare Development Group - commonly known as SEAL Team Six - has been a part of some of the most memorable special operations in history, as well as countless missions that never made headlines. No Easy Day puts readers inside the elite, handpicked twenty-four-man team as they train for the most important mission of their lives, Operation Neptune Spear. The SEALs were going after bin Laden.
Summary by Amazon
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No Easy Day (Harback)  No Easy Day (Paperback)
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23 August 2012 The Shifting Discourse of the "Responsibility to Protect" Tahira Mohamad Abbas [e-International Relations],
23 August 2012
This essay first demonstrates how the R2P "novel" character of the conception of "sovereignty as responsibility" is flawed and overly exaggerated. It then discusses how the legal content of the R2P's international responsibility to protect is "old wine in new bottles," which reflects the existing international law structure pre"R2P. Finally, it argues how the R2P shift on the moral level " even if it constitutes an innovation " has resulted in disconnecting R2P from the traditional focus on militarized humanitarian intervention debate. The conclusion affirms that R2P has not only offered nothing genuine to solve the initial humanitarian intervention dilemma, but also "de-links" us from it.
See also:  Intervention in the internal affairs of states
Summary extracted by Aspals
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19 August 2012 Drone attacks must not be hidden from the law Independent Editorial [The Independent],
Sunday 19 August 2012
Of the long list of controversial military developments, the rise of the unmanned aerial vehicle " the "drone" " is one of the most contentious yet. All the more reason, then, for the US, as the technology's main proponent, to take all possible measures to ensure that the use of drones is within international laws of combat. If only.
Summary extracted by Aspals
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16 August 2012 The Strategic Context of Lethal Drones By, Joshua Foust and Ashley Boyle [American Security Project]
This American Security Project report creates a framework for discussing America's use of lethal drone strikes in a strategic context. The U.S. government has used lethal drone strikes since the passage of the 2001 Authorization for the Use of Military Force, but recently their use has expanded at an unprecedented rate " underscoring the importance of understanding drones as tools in a larger framework. Yet, most of the discourse to date about the merits of drones has focused on moral, legal, and tactical considerations, rather than on strategy. Strategy is at the very heart of how effectively lethal drone strikes interact with America's national security. This paper presents a factual, apolitical discussion about drone programs and their role in US counterterrorism strategy. [Comment: any strategic considerations must only operate within legal boundaries].
Summary by American Security Project
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16 August 2012 Are drones any more immoral than other weapons of war? Peter Beaumont [The Observer],
Sunday 19 August 2012
According to the author, the central issue comes down to how combatants are identified and what efforts are made to protect civilians. He considers the notion of drone warfare no more horrible than a Tomahawk cruise missile fired from a distant ship or a bomb dropped indiscriminately on a village by a high-flying F-22 or MiG.
Summary by Aspals
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August 2012 Continuity, change and contest - Meanings of 'humanitarian'from the 'Religion of Humanity' to the Kosovo war By, Katherine Davies [HPG Working Paper]
ISBN: 978-1-907288-80-7 & Overseas Development Institute, 2012
This study examines the evolving meaning of the term 'humanitarian', from its emergence in the mid-nineteenth century through to the end of the twentieth century. As part of the Humanitarian Policy Group (HPG)'s project on the 'Global History of Modern Humanitarian Action', its primary objective is to trace the development of the concepts and ideas that the word denotes and connotes, the ways in which the word has been used (and 'misused') and its discursive operations. More specifically, the study explores how the goals of humanitarian action have developed, the principles that guide it, the range of actors that pursue it and its relationship with politics. The study is not a history of humanitarianism; rather, it seeks to show how the term is reflective and constitutive of humanitarian action.
Summary extracted by Aspals
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9 August 2012 Would Intervention in Syria Violate International Law? By, Joseph William Davids [The {New} International Law]
In July the Public International Law & Policy Group (PILPG) issued a memorandum setting forth the legal basis for international military intervention in Syria analysing the conflict using the doctrine known as the Responsibility to Protect (R2P). It concluded that R2P is a norm of customary international law that allows military intervention by individual States when the United Nations (UN) Security Council does not act to end ongoing atrocity crimes. The memorandum attempts to justify unauthorized military intervention in Syria by relying on an outdated version of R2P. The doctrine could have potentially allowed such an intervention as it was originally developed in the ICISS Report, but that prong of the doctrine was not adopted by the international community in the Outcome Document of 2005, nor was it adopted by the Security Council when it authorized intervention in Libya in 2011. The harsh truth is that R2P as it currently stands does not permit individual States (or groups thereof) to intervene militarily in other States to put an end to ongoing mass atrocity crimes. The memorandum reaches the opposite conclusion based on a false premise of the validity of R2P in its original form. If intervention outside of Security Council authorization is to be legal, it will have to find its justification somewhere else.
Summary extracted by Aspals
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25 July 2012 Syria Crisis Briefing: A Collision Course for Intervention By Professor Michael Clarke and others [RUSI]
The Syrian crisis has taken a decisive new turn in the last week. President Bashar al-Assad's own future is now significantly less relevant to whatever will happen next in the country and external intervention, in some form, is now significantly more likely. In this Briefing, experts detail the risks and challenges of intervention in Syria. Contributors delve further into the internal and external aspects of this conflict, offering a sobering assessment of the prospects for Syria and the region.
Summary extracted by Aspals
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19 July 2012 Viewpoint: Drones, modern war, and the US by Gary Solis, Professor of Law, Georgetown University [BBC News, 19 July 2012]
Drones are the spotters that relay information about targets to command centres where targeting cells confirm the lawfulness of the target and, like firing an artillery piece, trigger the drone's missiles. In an important respect, armed drones are superior weapons to traditional artillery. Rather than firing multiple artillery rounds, often a score or more, drones fire one or two missiles. Artillery, with its dispersion pattern at point of impact, requires multiple rounds to assure a target hit. A missile is guided to its target with exacting precision. The potential for collateral damage - the unintentional killing of civilians - is greatly minimised by drone strikes. Because of the nature of the war on terrorism, in which the enemy does not identify himself in traditional ways, identifying lawful drone targets is difficult. It nevertheless is done with skill and professionalism by American and allied warfighters.
Summary extracted by Aspals
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15 July 2012
Hilarity Ensues as Russia Criticizes Saudi Arabia's Human Rights Record by Mark Adomanis [Forbes, 15 July 2012]
If you want to find proof of the rank hypocrisy and double standards that underlie international relations in general and the argument over Syria in particular, you could do an awful lot worse than to examine the recent spat between Saudi Arabia and Russia. Saudi Arabia, despite it's recent embrace of the cause of democracy and freedom in Syria, is and has been for the past 80 odd years one of the most violently repressive and backwards societies in the world: an absolute dictatorship replete with "morality police" and various other kinds of religious totalitarians. In addition to intervening in its neighbor Bahrain's "internal affairs" Saudi Arabia has been a leading voice for intervention in Syria and has repeatedly argued that the Syrian rebels must be armed and equipped. The Saudi government is even considering the drastic step of paying the salaries of rebel soldiers in an attempt to force additional defections from the Syrian army. Russia's Syria policy is a pointless, mistaken, and self-defeating one. But the Russians are absolutely right to point out the glaring hypocrisy of the anti-Assad coalition which with one hand aids a "pro-freedom" uprising and with the other smashes even the barest hints of political dissent. It would be nice if there was a coherent and consistent effort to advance human rights in the Middle East, but what is actually happening is a brutal and ruthless game of realpolitik that has been crudely adorned with the ill-fitting trappings of democracy and human rights.
Summary extracted by Aspals
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July 2012 Libya: Militia stranglehold corrosive for rule of law (Amnesty Report) [Amnesty] [Report Summary]
Libya risks repeating the very violations that led to the "17 February revolution" unless the winners of elections scheduled for this week make the establishment of the rule of law and respect for human rights their top priority, Amnesty International said today in a new report. Nearly a year after Tripoli fell to the revolutionary fighters, ongoing violations " including arbitrary arrests and detention, torture including to death, impunity for unlawful killings and forcible displacement – are casting a shadow over the country's first national elections since the fall of al-Gaddafi's regime.
Summary extracted by Aspals
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June 2012 The occupation of Iraq: a military perspective on lessons learned By Matthew R. Hover ICRC Review,
Volume 94 Number 886, p339: Summer 2012
Operation Iraqi Freedom forever changed the US military, and the occupation in 2003–2004 played a large role in its transformation. It is hard to argue that failed planning, training, and inter-agency execution of the occupation did not have a significant role in the development of the insurgency that erupted in late 2004 and caused US involvement in Iraq to continue for seven more years. Poor strategic and operational planning for the occupation led to the failure of tactical units to train for the tasks that would help them to maintain security and fulfil their other responsibilities as occupying forces. The military therefore squandered the initiative that they had gained after quickly toppling Saddam Hussein's regime. The military's subsequent acts or omissions alienated the Iraqi population and further contributed to the conditions for an insurgency. Once the occupation began, poor inter-agency execution – primarily between the CPA and the military – further exacerbated the declining situation. The enormous human and material cost of the war in Iraq was a severe price to pay to learn a lesson, but it does appear that that lesson has been institutionalized in policy and doctrine to avoid past mistakes in the future. It is now up to current and future leaders to ensure that history does not repeat itself (Copyright: Cambridge University Press.)
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June 2012 Get off my cloud: cyber warfare, international humanitarian law, and the protection of civilians By Cordula Droege ICRC Review,
Volume 94 Number 886, p.533: Summer 2012
Cyber warfare figures prominently on the agenda of policymakers and military leaders around the world. New units to ensure cyber security are created at various levels of government, including in the armed forces. But cyber operations in armed conflict situations could have potentially very serious consequences, in particular when their effect is not limited to the data of the targeted computer system or computer. Indeed, cyber operations are usually intended to have an effect in the real world. For instance, by tampering with the supporting computer systems, one can manipulate an enemys air traffic control systems, oil pipeline flow systems, or nuclear plants. The potential humanitarian impact of some cyber operations on the civilian population is enormous. It is therefore important to discuss the rules of international humanitarian law IHL that govern such operations because one of the main objectives of this body of law is to protect the civilian population from the effects of warfare. This article seeks to address some of the questions that arise when applying IHL – a body of law that was drafted with traditional kinetic warfare in mind – to cyber technology. (Copyright: Cambridge University Press. Reproduced here with their kind permission)
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May 2012 If there were global justice, Nato would be in the dock over Libya [Seumas Milne] The Guardian, Tuesday 15 May 2012
Liberia's Charles Taylor has been convicted of war crimes, so why not the western leaders who escalated Libya's killing? Seven months on from Muammar Gaddafi's butchering in the ruins of Sirte, the fruits of liberal intervention in Libya are now cruelly clear, and documented by the UN and human rights groups: 8,000 prisoners held without trial, rampant torture and routine deaths in detention, the ethnic cleansing of Tawerga, a town of 30,000 mainly black Libyans (already in the frame as a crime against humanity) and continuing violent persecution of sub-Saharan Africans across the country. Just as the urgent lesson of Libya – for the rest of the Arab world and beyond – is that however it is dressed up, foreign military intervention isn't a short cut to freedom. And far from saving lives, again and again it has escalated slaughter.
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May 2012 Case Note: A Critical Review of the ICC's Recent Practice Concerning Admissibility Challenges and Complementarity [Thomas Obel Hansen] Melbourne Journal of International Law, vol. 13, no. 1, 2012
The principle of complementarity has often been pointed to as the cornerstone of the Rome Statute (the Statute); as a key concept which permeates the entire structure and functioning of the International Criminal Court (ICC or the Court). Although the legal literature has been preoccupied with discussing the nature and scope of complementarity the Statute, until recently however the jurisprudence of the ICC has only to a limited extent dealt with a number of key issues pertaining to complementarity. However, the Court's recent practice " a series of decisions, including the Appeals Chamber's decisions of 30 August 2011, relating to an admissibility challenge filed by the Government of Kenya " offers a significant contribution to the understanding of complementarity. These decisions have not yet been comprehensively assessed in the literature on the ICC and complementarity. Examining the Court's most recent practice against the backdrop of existing case law and the literature on the topic, this Case Note identifies four key contributions of the ICC decisions.
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5 April 2012 Intervention in Libya and Syria Isn't Humanitarian or Liberal Benjamin H. Friedman Cato Institute
Proponents of foreign military intervention in Libya argued that giving air support to rebels there would spread liberalism and save Libyan lives. But the success of that revolution has thus far delivered political chaos destructive to both ends. That result is worth noting as backers of the Libya intervention offer it as a model for aiding Syrian rebels in the name of similar goals. The most widely cited rationale for helping Libya's rebels was to save civilians from the regime. Along with many commentators, President Obama and his aides insisted that Qaddafi promised to slaughter civilians in towns that his forces were poised to retake last March. Thus, intervention saved hundreds of thousands of lives. A minor problem with this claim is that Qaddafi's speeches actually threatened rebel fighters, not civilians, and he explicitly exempted those rebels that put down arms. This is a short, well-argued article that challenges the NATO justification for the intervention and is food for thought when considering a military option for other countries experiencing the "arab spring".
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April 2012 Practice Direction: Citation Of Authorities (2012) Lord Chief Justice Judiciary Weblink
This Practice Direction is issued in order to clarify the practice and procedure governing the citation of authorities and applies throughout the Senior Courts of England and Wales, including the Crown Court, in county courts and in magistrates' courts. It will be persuasive in the Court Martial.
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March 2012 Short War, Long Shadow - The Political and Military Legacies of the 2011 Libya Campaign Edited by Adrian Johnson and Saqeb Mueen On-Line
Free RUSI publication
The impetus for the UK to intervene came very much from the top, with a hawkish prime minister pushing the operation despite private military warnings of the risks. At home and abroad, a debate quickly flared up over the generous interpretation of 'all necessary means' to 'protect Libyan civilians' in UN Security Council Resolution 1973. Whatever the initial intention of the Permanent Five, there is little doubt that the operation mutated into a proxy war with regime change as the object. Jonathan Eyal concludes that this may lead to some troubling implications for the fledgling concept of the Responsibility to Protect (R2P) " not least, China and Russia feeling that they were hoodwinked into permitting an operation they did not intend. They may not be so trusting in the future.
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January 2012 Hybrid threats, cyber warfare and NATO's comprehensive approach for countering 21st century threats " mapping the new frontier of global risk and security management Dr Sascha-Dominik Bachmann On-LineAmicus 88 Winter,
at page 14
The end of the so-called "Cold War" has seen a change in the nature of present threats and with it to the overall role and mission of NATO, the North Atlantic Treaty Organization. The collapse of the Soviet Union and the Warsaw Pact in 1991 also removed the original raison d'etre of the Alliance: the prospect of having to repel a Soviet led attack by the Warsaw Pact on the West. NATO's new strategic concept of 2010 will focus on prevention as well as deterrence and aims at developing a holistic or comprehensive approach to a variety of new conflict scenarios of multimodal or hybrid threats: from kinetic combat operations to multi stakeholder based nonkinetic responses. The comprehensive approach is promise and challenge at the same time; time will tell what legal and political challenges will arise and how successful the new approach will be.
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January 2012 Somali Piracy, Why Should We Care? Martin N Murphy On-Line
Free RUSI publication
Somali piracy is the single biggest maritime threat since the Second World War, with consequences resonating far beyond Somali shores that have political, geostrategic, naval, economic and human security aspects. Martin Murphy analyses each of these in turn, and argues that only a multi-layered approach, intertwining long-term political and economic incentives with a short-term clamp-down on pirate activities, can provide an effective and lasting solution.
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January The Case for Pre-emption (Not Prevention) in Public International Law By Jeff Collins GW Post
23 January 2012
In part due to the American invasion of Iraq in 2003 and in part due to the diversity of external threats that states now face in a post-Cold War era, much discussion has arisen in the past decade on when states may, unilaterally, use force to defend themselves outside of the restrictive parameters of the United Nations Charter. The two arguments advanced by a number of states and commentators that would permit a state to unilaterally use force in self-defence are pre-emption and prevention. Unfortunately, over the preceding decade both terms have been used interchangeably (as exemplified in the 2002 US National Security Strategy) to such an extent that confusion now exists over whether there is any real distinction between the two.
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