Aspals Reading List 2013

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Date Title Author Reference
2013 Human rights, colonialism and post-colonial conflict resolution: historical justice litigation Tom Frost and Sascha-Dominik Bachmann Amicus Curiae Issue 92 Winter 2013
pp.14–16
Human rights campaigners, activists and litigators have been seeking ways and means to hold accountable those responsible for gross human rights abuses and violations. These measures have included seeking the criminal prosecution of the individual human rights perpetrator, as well as seeking civil damages against individual actors. Rationale and means of human rights protection can be found in the international legal system. International law plays two critical roles in relation to the protection of human rights. First, it establishes acceptable norms of conduct, such as the prohibition of torture. Second, it provides, where possible, enforcement mechanisms that aid and support the domestic enforcement of these norms. However, at present there seems to be a lack of an effective international enforcement mechanism for human rights abuses. The existing UN Charter and treaty-based human rights systems suffer in general from an absence of strong and effective inter- and intra-state accountability mechanisms.
Summary extracted by Aspals

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2013 The Status of Foreign Armed Forces Deployed in Post-Conflict Environments: A Search for Basic Principles Dr Aurel Sari Carsten Stahn, Jennifer S. Easterday and Jens Iverson (eds), Jus Post Bellum,
(Oxford, Oxford University Press, 2014) at 467–501. Available through SSRN
Foreign armed forces frequently play an important part in the transition from a state of conflict to a state of peace, yet their presence more often than not is a source of controversy. Under these circumstances, we may legitimately expect the rules of international law governing the legal status of such forces to serve a dual function: the relevant rules should lay down certain general standards of behaviour and provide a framework for interaction between sending States and host States, thus injecting a measure of predictability and procedural legitimacy into an otherwise highly volatile legal and political setting. The chapter argues that two distinct concerns relating to the legal position of foreign forces arise in post-conflict situations: the effect that changes in the legal basis of their presence have on their legal status and the need to balance the principle of territorial sovereignty and the jurisdictional exemptions of foreign forces in a manner that reflects the specific features and demands of post-conflict environments. As this chapter shows, both of these two concerns point towards the need for a more contextual and dynamic understanding of the legal status of foreign forces deployed in post-conflict situations. Such an approach provides greater conceptual clarity and offers a vantage point from which the position of sending States and host States can be critically assessed.
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2013 The Impact Of Military Justice Reforms On The Law Of Armed Conflict: How To Avoid Unintended Consequences Victor Hansen Michigan State International Law Review [Vol. 21:2],
at pp.229 – 272
This article considers efforts to civilianize the military justice systems in Canada, the United Kingdom and other countries and how these reforms potentially impact the role of the military commander with respect to the commander's law of war obligations. One consequence of the "civilianization" of the military justice systems in Canada the United Kingdom and elsewhere potentially impacts the commander's own personal criminal liability. The doctrine of command responsibility holds that a commander may be criminally liable for the law-of-war violations committed by the forces under his command if a commander fails to prevent, suppress, or punish law-of-war violations that he either knew about or was reckless or negligent in failing to notice, he can be punished as if he committed the underlying offenses. This doctrine is based on the commander's unique position in a military organization. The commander is the focal point of military discipline and order, and it is the commander's responsibility to maintain command and control of his subordinate forces. It is the commander who, by use of all the resources and authority available to him, ensures that his forces do not violate the laws of war. If those forces do, it is in large part attributable to the commander's failings. If, as a result of the civilianization of military justice, commanders lose a significant portion of the disciplinary authority they have traditionally held, do they no longer occupy that critical position of responsibility over the forces under their command? If they have lost that authority, to whom does the law now turn to for accountability? Does the commander, who has lost some of his authority, lose the ability to maintain discipline through the military justice system, and does he find himself in a situation where he is given responsibility to maintain discipline and control without having sufficient authority to meet that obligation? This article raises and addresses these important questions and it provides a framework for considering military justice reforms that preserve the commander's critical role in law of war compliance.
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2013 The Boards For Correction Of Military And Naval Records: An Administrative Law Perspective Eugene R Fidell Administrative Law Review [2013]
pp.499 - 507
Military pay cases are one of the hardy perennials of the jurisdiction of the United States Court of Federal Claims, yet few practitioners are familiar with this obscure corner of the court's work. The Boards for Correction of Military and Naval Records often figure in these cases but rarely surface in the professional literature. Yet they decide thousands of cases a year. The author analyses the administrative processes of these Boards which, in administrative law terms, conduct informal adjudication and decide matters that are in the past. They do so without using "on the record" proceedings associated with formal adjudication within the meaning of the Administrative Procedure Act (APA). What that means, on one level, is that the correction boards are not required to use administrative law judges (ALJs), and in fact they do not. The APA does not require substantial-evidence review or the use of ALJs. For informal adjudication, all that is required of an agency is "a brief statement of the grounds for denial." Professor Fidell looks at the issue of representation and presentation, and the time taken to adjudicate (something we are familiar with in the UK Services Admin Procedures). One of the results of the caseload is that the boards rarely exercise their power to conduct evidentiary hearings and one Board has even taken to using proforma letters for its rulings. The author highlights a case he dealt with which lasted years. He called it a "case from hell". It is easy to see why. This is a fascinating and insightful article by a well respected and senior military lawyer and academic.
Summary by Aspals

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December 2013 Whose sarin? Seymour M. Hersh London Review of Books
Vol. 35 No. 24, 19 December 2013,
pages 9–12
Barack Obama did not tell the whole story when he tried to make the case that Bashar al-Assad was responsible for the chemical weapons attack near Damascus on 21 August 2013. In some instances, he omitted important intelligence, and in others he presented assumptions as facts. Most significant, he failed to acknowledge something known to the US intelligence community: that the Syrian army is not the only party in the country's civil war with access to sarin, the nerve agent that a UN study concluded – without assessing responsibility – had been used in the rocket attack. In the months before the attack, the American intelligence agencies produced a series of highly classified reports, culminating in a formal Operations Order – a planning document that precedes a ground invasion – citing evidence that the al-Nusra Front, a jihadi group affiliated with al-Qaida, had mastered the mechanics of creating sarin and was capable of manufacturing it in quantity. When the attack occurred al-Nusra should have been a suspect, but the administration cherry-picked intelligence to justify a strike against Assad. This is a fascinating piece of journalism, well sourced, which shows how dirty politics can be in duping the public into justifying going to war.
Summary by Aspals

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2013 'Anglo-American' Military Justice Systems And The Wave Of Civilianization: Will Discipline Survive? Lt Col Stephen S. Strickey (Canadian Army) Cambridge Journal of International and Comparative Law (2) 4:
pp. 763–799 (2013)
A valuable discussion paper, where the author concludes we should be wary of creeping civilianisation. It is unquestionable that the US and their 'Anglo-American' allies have travelled different paths in attempting to reconcile the need for discipline in an armed force with that of ensuring that an accused is provided with fair and due process. While academics have cited the lack of change in the American military justice system when compared to its allies, further examination reveals that it was the US, not its allies, that underwent a significant period of civilianization some 20 years before the term arguably became in vogue across military justice circles. The pace of reform over the past 20 years calls into question whether or not this wave of civilianization threatens the very existence of the 'Anglo-American' military justice systems. While numerous reports in these countries subscribe to the notion of the commander as the 'heart of discipline,' it appears that such notion could be at risk should this trend of civilianization continue. Whether or not the US will retain its current system has yet to be determined; but those entrusted with the superintendence of the military justice systems in these countries would be wise to pay heed to the effect of civilianization among their closest allies and to question whether such reform is in the best interests of discipline and fairness to the accused. He suggests that Australia, Canada, UK and US should establish an Allied Military Justice Committee to remain apprised of developments in their respective countries, membership of which the author would limit to uniformed military justice practitioners charged with advising their respective Judge Advocates' General (or his/her equivalent) on strategic military justice policy. This might pose difficultes in the UK, as the JAG is a civilian and head of an independent judicial office. He does recommend, in the case of UK, an internal or independent review to examine the impact of the changes on the British military justice system in light of the 1996 and 2006 amendments. Given the tenor of civilian-like changes in the military justice system over the past decade, an independent review could focus its recommendations on how to integrate civilian authorities within the military milieu while examining if the modified system should allow for some involvement by the chain of command in the court martial process. This may be seen in the UK as a retrograde step, and difficult to implement in any event, in the light of ECHR authorities which focused in no uncertain terms on the need for the court martial to be independent from the chain of command.
Summary by Aspals

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December Goodbye to George III - The fight over prosecuting sexual assault in the military is really over an antiquated model of commander control. Eugene R. Fidell The Slate
6 December 2013
For much of the year, the country has been witnessing a debate about how the military has been—and should be—handling the problem of sexual assault. Two competing approaches will be on the table when the Senate reconvenes: one developed by Sen. Kirsten Gillibrand, D-N.Y., and another by Sen. Claire McCaskill, D-Mo. At first glance, the proposals may look like alternate routes to the same goal, but there is a profound difference between them. Gillibrand's bill would transfer the commander's power to decide who will be court-martialed for serious offenses to lawyers outside the chain of command (except for core military offenses, like desertion and disobedience). McCaskill's bill would largely keep commanders in the driver's seat, but with an added layer of review for sex offenses. On the basic structural question of who decides which cases go to court-martial, Congress must take its own counsel and that of the public, most of which wisely favors broad systemic change of the kind Gillibrand's measure would bring. The path to a 21st-century military justice system and improved public confidence in the administration of military justice runs through the Capitol, not the Pentagon.
Summary by Aspals

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December The Panopticon Of International Law: Human Rights Compliance In A Transnational Society Pini Pavel Miretski and Sascha-Dominik Bachmann SSRN
October 2013
This paper analyzes the influence of transnational actors on compliance with international legal rules, as part of Foucault's power/knowledge structure. Particularly it examines the effect of the "Shooting Back" project, by the Israeli NGO B'Tselem, on the level of investigations of alleged violations of the law of occupation. According to Bentham's principles of Panoptism, power should be visible and unverifiable. Transnational actors, through their geographical spread and their civilian activists, conjointly with their use of cheap and available means of communication provide both. The implementation of these principles is well presented by the "Shooting Back" project. In 2007 B'Tselem supplied Palestinians living in high-conflict areas with video-cameras in order to capture, expose, and "seek redress for" human rights violations in the Occupied Territories. This project caused soldiers and their commanders to be aware of the possibility that they are observed and documented, without knowing the exact source of the observer.
Summary by Authors

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December The Presumption of Innocence - Difficulties in Bringing Suspected Terrorists to Trial Robin Simcox Henry Jackson Society
December 2013
Shortly after taking office, President Obama asked his advisers why, if those detained at the Guantánamo Bay detention facility in Cuba were so dangerous, 'can't we prosecute them?' This is a question that has been asked on numerous occasions, not just by President Obama and not just about Guantánamo Bay detainees, but by Western liberal democracies about a whole range of suspected terrorists considered non-prosecutable (such as, Abu Qatada in the U.K.) Western security structures were fundamentally better prepared for an era when nation states, as opposed to non-state actors, were the primary security threats. There was little precedent for the type of attack on 9/11, and little precedent for the way in which a state should respond. Subsequently, detention without charge; rendition; deportation; missile strikes; and military operations have reduced the civilian court system to just one of a variety of responses to the al-Qaeda and al-Qaeda-inspired threat. One particularly controversial manifestation of this is the detention centre at Guantánamo Bay, Cuba. Therefore, criminal prosecutions are now just one aspect of a much broader strategy of preventing terrorists from carrying out mass-casualty attacks. Yet, politicians – especially those in Europe – have failed to adequately explain to the public as to why this is.
Summary extracted by Aspals

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November Countering Hybrid Eco-threats to Global Security Under International Law: The Need for an Comprehensive Legal Approach Joachim Sanden, Sascha-Dominik Bachmann Liverpool Law Review
7 November 2013
Threats to environmental security ('eco-threats') face not only shortcomings of environmental protection during hostilities under the Law of Armed Conflict. Considering the new 'Hybrid Threat' concept, which had recently been discussed by NATO, the authors recognise from the perspective of International Law the need for adopting a comprehensive legal approach towards such threats. The International Environmental Law, the International Humanitarian Law and the Customary International Law show some shortcomings to tackle the new challenge. In the focus is the rule of law, in particular the principle of proportionality, which can play a role when countering such threats and legal rules can have a positive effect on the international community's ability to act. [Ed: Governments and defence planners need to really think hard about these potential threats. This is an excellent, thought-provoking article].
Summary by Authors

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November Twice Betrayed - Bringing Justice to the U.S. Military's Sexual Assault Problem Lindsay Rosenthal and Lawrence Korb Center for American Progress
A report which examines the need for reform of the US military justice system in the context of sexual assault allegations, to remove from the chain of command the power to deal with such offences. It looks at the difficulties in victims reporting to the chain of command rape/sexual assault and the perception, at least, of harm which may be done to the complainant's career. The authors identify the two systems run by US allies: where prosecutions are handled by the civilian system and, as in the case of Canada and the UK, where they are handled by an independent military prosecutor. They point out that in both cases, there is no proven damage to readiness or that unit cohesion of these militaries has declined because commanders are not handling criminal cases. Under the US status of forces agreement with Japan and South Korea, these countries can and do prosecute US service personnel who commit crimes off base.
Summary by Aspals

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October Military Justice Handbook - for Court Martial Practitioners A.S. Paphiti 1. Buy from Authorhouse
2. Aspals
The military justice system (MJS) comprises the body of law that governs the disciplinary processes within the three Services. It is important to have a separate justice system to ensure that wherever in the world a serviceman is, if he commits a crime or a disciplinary infraction, he knows he will be dealt with according to military law. The prosecution of civilians subject to Service discipline and young offenders is also included. Until 2006, each Service had its own disciplinary system and disciplinary act. The Armed Forces Act 2006 introduced a uniform system for the three Services, harmonizing the offences and methods of disposal. This was an enormous undertaking, which has been largely successful. The legislation still remains a complex area, which is daunting to those who are unfamiliar with the system. This handbook attempts to cover the key provisions. To make the task of advising clients a little easier, by "speaking the same language," a useful list is included of some common acronyms used in the Services. Bearing in mind the volume of law and regulation, this book is principally designed to give some useful background information about the Service disciplinary system and provide an insight into the main offences charged at summary hearing and court martial. It is a sort of "road map" of the military justice system, which complements the excellent Manual of Service Law and Judge Advocate General's guidance.
Summary by Aspals

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October The Truth About Criminal Jurisdiction Over U.S. Troops in Afghanistan: Questions for Secretary of State Kerry, the Loya Jirga… and National Public Radio Chris Jenks Opinio Juris
22 October 2013
Beware the U.S. expressing "great respect" for a State's sovereignty. You're likely to find what follows more akin to the opposite — of both respect and sovereignty. Such is the case with U.S. Secretary of State John Kerry and his recent misstatements on foreign criminal jurisdiction over U.S. service members and the US Afghan Bilateral Security Agreement (BSA). Under the terms of the BSA, the U.S. would retain exclusive jurisdiction over any and all criminal offenses U.S. service members commit in Afghanistan. Secretary Kerry claimed on more than occasion that this is the same jurisdictional framework utilized wherever U.S. forces operate. It is not. More broadly, Kerry's claims perpetuate the myth that the U.S. doesn't "allow" foreign courts to prosecute U.S. service members for their criminal actions — the reality is that foreign countries permissibly (and appropriately) prosecute and jail U.S. service members each and every year. A State not having jurisdiction over individuals who, while in the territory of that State, rape and murder that State's nationals, is the opposite of sovereignty. There are legitimate reasons, from the US perspective, for such a jurisdictional framework, notably that the current Afghan criminal justice system lacks the procedural safeguards guaranteed by the Constitution of the United States to ensure a fair trial. This is not American exceptionalism, our NATO allies undoubtedly feel similarly about the prospect of their service members in an Afghan court. But to stand next to the President of a country and profess great respect for their sovereignty in one sentence and in the next advance an agreement under which the country would never have jurisdiction over crimes occurring in that country is disingenuous. To then make false equivalency claims risks snatching defeat from the jaws of security agreement victory.
Summary extracted by Aspals

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October The Fog of Law Thomas Tugendhat and Laura Croft (Foreword by the Rt Hon Lord Justice Moses) Policy Exchange
October 2013
The customs and practices of Britain's armed forces are now under threat from an unexpected quarter: the law. Recent legal developments have undermined the armed forces' ability to operate effectively on the battlefield. The application of laws originally designed for domestic civilian cases to military operations overseas has changed the way the armed forces can act. Concerns over the spread of judicial intervention have been variously referred to as "legal siege", "legal encirclement", "judicial creep" and even "lawfare". Unique bodies of law, such as the LOAC, have grown up to govern the conduct of operations. Today, these long-standing principles are being undermined, and not just in the United Kingdom. The United States Law of War Manual, which still remains to be officially published, demonstrates similar trends in the US. Its publication has been delayed following a debate around the primacy accorded to the LOAC in this document. This uncertainty constrains the ability of commanders to react, undermining their cooperation with allies and affecting the combat capability of the Services. Together, these weaken the defence of the realm. In the longer run, they are also a mortal threat to the culture and ethos of the military – which, unlike troop numbers, cannot easily be reversed. Can combat immunity survive or will the MoD be bogged down in an increasing morass of litigation that will erode its fighting efficiency?
Summary extracted by Aspals

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October The Fog of Law Thomas Tugendhat and Laura Croft (Foreword by the Rt Hon Lord Justice Moses) Policy Exchange
October 2013
The customs and practices of Britain's armed forces are now under threat from an unexpected quarter: the law. Recent legal developments have undermined the armed forces' ability to operate effectively on the battlefield. The application of laws originally designed for domestic civilian cases to military operations overseas has changed the way the armed forces can act. Concerns over the spread of judicial intervention have been variously referred to as "legal siege", "legal encirclement", "judicial creep" and even "lawfare". Unique bodies of law, such as the LOAC, have grown up to govern the conduct of operations. Today, these long-standing principles are being undermined, and not just in the United Kingdom. The United States Law of War Manual, which still remains to be officially published, demonstrates similar trends in the US. Its publication has been delayed following a debate around the primacy accorded to the LOAC in this document.13 This uncertainty constrains the ability of commanders to react, undermining their cooperation with allies and affecting the combat capability of the Services. Together, these weaken the defence of the realm. In the longer run, they are also a mortal threat to the culture and ethos of the military – which, unlike troop numbers, cannot easily be reversed. Can combat immunity survive or will the MoD be bogged down in an increasing morass of litigation that will erode its fighting efficiency?
Summary extracted by Aspals

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October On 'Humanitarian Intervention', 'Lawmaking' Moments and What the 'Law Ought to Be'–Counseling Caution Against a New 'Affirmative Defense to Art. 2 (4)' After Syria Professor Carsten Stahn Opinio Juris
9 October 2013
In a response to Harold Koh's thought-provoking post on Just Security on 'Syria and the Law of Humanitarian Intervention – Part II', Professor Stahn responds that the fundamental question is whether the solution suggested, i.e. greater flexibility towards military strikes under an 'affirmative defense to Art. 2 (4)' is the right remedy to deal with the dilemma of a 'blocked' UN Security Council. He considers this to be a very rudimentary logic and argues that it appears to suggest unilateral military action is the proper remedy to overcome impasses and inaction by the Council. In fact, the author states (correctly, in our view) that such a course carries the risk of remedying wrongs through means that are ill-equipped to meet the very goals of intervention. In light of these risks, many nations (e.g., G77) have remained reluctant to accept the doctrine of 'humanitarian intervention'. The author says that Harold Koh's argument contains a number of problems that require reconsideration: (i) the framing of the choice, (ii) the use of the label of 'humanitarian intervention', (iii) the nature of the proposed 'defense' for the use of armed force, and (iv) the approach towards 'lawmaking'. In the author's view, further thematic work of the UNSC on the ban of chemical weapons could be used to strengthen (i) instruments of prevention, fact-finding and verification, (ii) cooperation with OPCW, (iii) duties of compliance or (iv) response schemes under the R2P doctrine. An immediate focus on the use of force may stifle this momentum and detract from some of the positive spin-offs that the Syria crisis has produced. Bringing non-military options back to the forefront might turn Syria from a potentially 'law-breaking moment' into a 'lawmaking' moment.
Summary extracted by Aspals

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September Promotion and protection of human rights and fundamental freedoms while countering terrorism Ben Emmerson, Special Rapporteur UN Report
18 September 2013
The present report is the third annual report submitted to the General Assembly by the current Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. The key activities undertaken by the Special Rapporteur between 10 January and 8 August 2013 are listed in section II. Section III is an interim report to the General Assembly on the use of remotely piloted aircraft in counter-terrorism operations. The Special Rapporteur intends to submit a final report on this subject to the Human Rights Council in 2014.
Summary extracted by Aspals

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August Military Action in Syria: Plucking Legal Justifications out of Thin Air Dr Jonathan Eyal RUSI Analysis
29 Aug 2013
Dr Eyal analyses and persuasively dismisses the various justifications being put forward for an attack on Syria in response to the alleged gas attack by the regime on the people of Ghouta, east of Damascus. He reminds us that to start with, as was the case with almost every single international military intervention since the end of the Cold War more than two decades ago, Western governments first decide that they wish to use force and only then scramble for legal justifications, rather than the other way around. Politicians may have decided to act in Syria out of strategic or tactical considerations or even out of sheer frustration, but compliance with international law is not the driver to such actions. And, invariably, the legal case is fuzzy. He concludes the truth is that, although clever lawyers will always find a wheeze, the Syria operation has little justification in international law.
Summary extracted by Aspals

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August Independence of judges and lawyers - Report of the Special Rapporteur Gabriela Knaul Report
7 August 2013
The present report focuses on the administration of justice through military tribunals. In many countries, the use of military tribunals raises serious concerns in terms of access to justice, impunity for past human rights abuses perpetrated by military regimes, the independence and impartiality of the judiciary and respect for fair trial guarantees for the defendant. The report focuses on four issues of concern, namely: (a) the independence and impartiality of military tribunals; (b) the personal jurisdiction of military tribunals, including the question of investigation and prosecution of civilians; (c) the subject-matter jurisdiction of military tribunals, including the question of investigation and prosecution of serious human rights violations allegedly perpetrated by military personnel; and (d) fair trial guarantees in proceedings before military tribunals. The Special Rapporteur on the independence of judges and lawyers addresses these concerns and proposes a number of solutions that are premised on the view that the jurisdiction of military tribunals should be restricted to offences of a military nature committed by military personnel. States that establish military justice systems should aim to guarantee the independence and impartiality of military tribunals, as well as the exercise and enjoyment of a number of human rights, including the right to a fair trial and the right to an effective remedy. The present report is based on an analysis of international and regional human rights instruments, the jurisprudence of international and regional human rights mechanisms and responses received to a questionnaire on military justice.
"The report before you focuses on the compliance of military tribunals with human rights law and internationally recognised standards."   [Statement by G Knaul to 68th Session of the General Assembly Third Committee, Item 70(b), 28 October 2013]
Summary by Author

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July Legal Aid Cuts – Doing Ex-servicemen a Disservice? Peter Glenser and Issy Hogg Criminal Law & Justice Weekly
Vol 177, July 27 2013
Former members of the armed forces form a large part of the prison population. Some research suggests they may comprise as many as one in ten of all serving prisoners in England and Wales, although this figure may well be an overstatement. (For an interesting discussion about the numbers and subject generally, see Sir John Nutting's "Report of the Inquiry into Former Armed Service Personnel in Prison" for the Howard League, published in 2011). What is more certain is that they represent the largest percentage of the prison population by former occupation. Veterans (or for that matter serving soldiers) detained by the civilian police are more likely to trust the advice of solicitors in the police station if that solicitor is known to them by reputation within their unit and if they speak the same "language". Military service is an all-embracing culture which throws up more slang and acronyms than almost any other walk of life. It engenders confidence if the solicitor does not have to stop his client's account every few minutes to ask what a particular phrase or set of initials means. Trust means that a defendant will be more likely to accept advice as to whether or not to exercise the right to silence or, crucially, make admissions at an early stage. the future of the sort of small firms that specialize in this work is far from certain. It is therefore important the value of the specialist services that they provide to vulnerable military personnel and veterans is fully recognized as the Government's consultation process moves forward to the next stage.
Summary extracted by Aspals

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July The provision of arms and 'non-lethal' assistance To governmental and opposition forces Dr Christian Henderson UNSW Law Journal
Volume 36(2), pp642-681, 13 July 2013
The Cold War was replete with incidents of support by both the United States ('US') and Union of Soviet Socialist Republics ('USSR') for both governmental and opposition forces in other states. Interventions made to prop up a particular governmental regime on ideological or political grounds were very often legally justified on the basis of an invitation to intervene by the government concerned, a justification which in and of itself causes little controversy from the perspective of international law. Instead, the controversy caused by these interventions was a result not of the use of this as a legal justification per se, but instead the circumstances in which it was invoked. However, it became clear that during this period of ideological conflict support was also being provided to opposition forces in their effort to topple a particular regime. Yet these interventions were very often conducted by the US and the USSR using indirect proxy means. Indeed, states in general very rarely directly intervened in support of such opposition forces using their own armed forces. This excellent article examines: 1. the principle of non-intervention and the prohibition of the use of force; 2. the Libyan and Syrian crises in the context of the provision of such support; 3. whether there are any possible legal grounds upon which it might be provided, including supporting the right to self-determination, counter-intervention, and unilateral humanitarian intervention with a particular focus on the Arab Spring conflicts; and 4. some conclusions of a broader nature on the contemporary position under international law, particularly in light of the emergence of the 'Responsibility to Protect' ('R2P') concept, of the provision of arms and non-lethal assistance to both governmental and opposition forces.
Summary extracted by Aspals

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July Responsibility to protect: State responsibility and prevention Report of the Secretary-General UN
A/67/929–S/2013/399, 9 July 2013
The report argues that Since the 2005 World Summit adoption of the concept of the responsibility to protect, the international community has made progress in the development of the concept and its implementation. In 2009, in its resolution 63/308, the General Assembly agreed to give ongoing consideration to the concept. Since then, the UN SG issued annual reports to assist the Assembly by examining different aspects of the concept and its application. As the present report has set out, the prevention of atrocity crimes requires continuous efforts by States. It also requires the engagement of the international community through assistance or through action, when States manifestly fail to protect their populations. The report criticises the the international community for failing to protect Syrians and the collective failure to prevent atrocity crimes.
Summary extracted by Aspals

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July Emerging Voices: Is Dissemination Sufficient to Promote Compliance with International Humanitarian Law? By Elizabeth Stubbins Bates Opinio Juris
13 August 2013
The author tackles the assumption that simply disseminating or teaching IHL is sufficient to promote compliance with the law; and explores the distinction between the obligation merely to disseminate IHL (including to the civilian population) and the obligation to train troops in that law. This distinction has stark relevance for the US' reliance on civilian CIA drone operators, whose knowledge of IHL has not been openly assessed, and whose training programmes in IHL (if any) have not been disclosed. When official statements on the IHL applicable to drone strikes contain elisions, it is US policy rather than IHL which is disseminated to the civilian population. While it is appropriate to be sceptical that dissemination is sufficient to promote compliance with IHL, confused dissemination of IHL may promote non-compliance.
Summary extracted by Aspals

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July Emerging Voices: Limits to R2P–Lessons from the Arab Spring Conflicts By Aqsa Mahmud Opinio Juris
7 August 2013
The international community's application (or nonapplication) of Responsibility to Protect (R2P) to the recent Arab conflicts highlights notable limits to R2P. R2P is a relatively new doctrine that holds States responsible for protecting their populations and, where the sovereign fails, allows for foreign intervention. Although independent reports have proposed a test for application, the international community has not adopted a set criterion. Every situation of R2P's potential use—whether applied or not—should be examined. In both Libya and Syria, the governments used military force against civilians and failed to protect their populations; however, R2P was only applied to Libya. The disparate application of R2P in Syria, in comparison to Libya, illustrates several limiting factors that will guide R2P in future scenarios.
Summary extracted by Aspals

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July The Remaking of Syria, Iraq and the Wider Middle East - The End of the Sykes-Picot State System? By Gareth Stansfield RUSI, Briefing Paper
July 2013
For Western powers, a significant moral dilemma relating to the future of the Middle East state system looms large. The question is simple: if the only way stability can be achieved in the Middle East (and North Africa) is through support — whether passive or active — for regimes of varying shades of authoritarianism, is it morally and practically acceptable to provide such support? Is Syria on the verge of collapse? And could Iraq, in particular — as well as Lebanon, Jordan and Israel — survive this eventuality? The answer is a tentative Yes to the first question and a probable No to the second.
Summary extracted by Aspals

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June Central Intelligence Agency Response to Senate Select Committee on Intelligence's Study of the Agency's long-terminated Rendition, Detention, and Interrogation Program By John O. Brennan, Central Intelligence Agency CIA Response
20 June 2013
The Senate Select Committee on Intelligence Report into rendition and the use of enhanced interrogation techniques was made public in December 2014, although it was produced in 2013. In this document, released on 8 December 2014, the details of the response of the then director of the CIA to the SSCIS are made publicly available. They make for interesting reading. While the CIA admits that mistakes were made, and that that enhanced interrogation techniques are not an appropriate method to obtain intelligence and that their use impairs the US's ability to continue to play a leadership role in the world, it refutes the Study's "unqualified assertions that the overall detention and interrogation program did not produce unique intelligence that led terrorist plots to be disrupted, terrorists to be captured, or lives to be saved. The Study's claims on this score are inconsistent with the factual record, and we provide detailed comments in TAB C on where and why the Study·s assertions and representations are wrong. The Agency takes no position on whether intelligence obtained from detainees who were subjected to enhanced interrogation techniques could have been obtained through other means or from other individuals. The answer to this question is and will forever remain unknowable." This document, together with the report on which it comments, is likely to be the focus of much study and debate about the methods employed in the wake of 9/11 in particular, to deal with the very real asymmetric threat of Islamic extremism, not just to the United States, but to the whole world.
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June So You Want to Intervene in Syria Without Breaking the Law? By Professor Rosa Brooks Foreign Policy Magazine
20 June 2013
A well synthesized examination of the various possible legal options that might be used to justify a US intervention in Syria, concluding that the best prospect for it lies under the concept of Responsibility to Protect. It is recognised that if the United States decides to intervene militarily in Syria, it will be taking a legal risk.
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June Updated Statistical Analysis of Documentation of Killings in the Syrian Arab Republic By Megan Price, Je. Klingner, Anas Qtiesh, and Patrick Ball (Commissioned by the Office of the UN High Commissioner for Human Rights) Report
13 June 2013
This report presents findings integrated from seven databases built by Syrian human rights monitors and one database collected by the Syrian government. The databases collect information about conflict-related violent deaths -killings- that have been reported in the Syrian Arab Republic between March 2011 and April 2013. Although conflict conditions make it difficult to identify an accurate record of events, governmental and non-governmental monitors are persevering in gathering information about killings through a variety of sources and data collection methods. The purpose of the report is to explore the state of documentation, the quantitative relationship of the sources to each other, and to highlight how understanding of the conflict may be affected due to variations in documentation practices. Significantly, the status of the victims as combatants or non-combatants is un-known for all but a few records. Nor is it clear how many regime troops and how many rebel fighters were within this number. There seems to be general agreement across the datasets that the majority of victims are male (82.6%) Several questions remain, a particularly relevant one being: does the increase in documented killings reflect an increase in true violence, or does it show an improvement in the documentation groups' capacity to report? The report highlights how difficult it is to obtain reliable figures in such circumstances.
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6 June The Security Council and the Intervention Brigade: Some Legal Issues Bruce 'Ossie' Oswald American Society of International Law
Volume: 17, Issue: 15
6 June 2013
On March 28, 2013, the United Nations Security Council (UNSC) authorized an Intervention Brigade (the Brigade) – its "first–ever 'offensive' combat force" - to undertake military operations against armed groups in the Democratic Republic of the Congo (DRC). This Insight describes some of the legal issues that arise from the Brigade's mandate.
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May Is it the end of Sykes-Picot? By Patrick Cockburn Vol. 35 No. 11
6 June 2013, pages 3-5
For the first two years of the Syrian civil war foreign leaders regularly predicted that Bashar al-Assad's government would fall any day. That Assad's government is on its last legs has always been something of a myth. YouTube videos of victorious rebel fighters capturing military outposts and seizing government munitions distract attention from the fact that the war is entering its third year and the insurgents have succeeded in capturing just one of the 14 provincial capitals. (In Libya the insurgents held Benghazi and the whole of the east as well as Misrata and smaller towns in the west from the beginning of the revolt.) The protracted conflict that is now underway in Syria has more in common with the civil wars in Lebanon and Iraq than with the overthrow of Muammar Gaddafi in Libya or the even swifter regime changes in Egypt and Tunisia at the start of the Arab Spring. In the heady days after the fall of Saddam, the Americans announced that Iran and Syria were the next targets for regime change. This was largely ill-informed hubris, but the threat was real enough for the Syrians and Iranians to decide that in order to stop the Americans acting against them they had to stop the US stabilising its occupation of Iraq and lent their support to all of America's opponents regardless of whether they were Shia or Sunni. The quagmire is turning out to be even deeper and more dangerous than it was in Iraq. Will diplomacy work?
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May Flawed Logic in Decision to Lift Syria Arms Embargo By Dr Christopher Phillips Chatham House
28 May 2013
The British government's stance that led to the end of the EU's arms embargo on Syria is based on flawed logic and will likely exacerbate and prolong the civil war. In an acrimonious meeting of European ministers in Brussels on Monday, Britain, supported by France but opposed by all 25 other EU member states, vetoed a move to extend the embargo, paving the way to send arms to the 'moderate' elements of the opposition.
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May Double-Tap Drone Strikes and the Denial of Quarter in IHL By Ofilio Mayorga Harvard Program on Humanitarian Policy and Conflict Research
8 May 2013
Unlike isolated IHL violations committed by undisciplined soldiers on the battlefield, failure to give quarter during wartime has far-reaching implications for everyone involved in the planning and execution of military operations. This may be the reason why the Pentagon's former chief lawyer advised President Obama to avoid a "take-no-prisoners" policy. It is unlikely that the drone program will be abolished anytime soon, but ending double-tap strikes would be an important step towards reducing the gap between IHL and the practice of targeted killings.
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May Syria: Intervention Will Only Make it Worse By Zbigniew Brzezinski Time
8 May 2013
Brzezinski rebuts Sen. John McCain, who argues in his article that Syrian intervention is in the U.S. interest. The author says the Syrian conflict is a sectarian war in a volatile region whose potential to spread and directly threaten American interests would only be increased by U.S. intervention. (Mr Brzezinski was National Security Adviser from 1977 to 1981).
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May "How to End the Forever War?" By Harold Hongju Koh, former State Department Legal Adviser Oxford Union
7 May 2013
The author addresses what he terms three common misperceptions from friends on both the left and the right: first, that what some call the Global War on Terror has become a perpetual state of affairs; second, that "the Obama approach to that conflict has become just like the Bush approach;" and third, that we have no available strategy to bring this conflict to an end in the near future. In this speech he rejected all three propositions. An important and interesting paper.
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May Important New Oversight Legislation for Military Kill/Capture Outside Afghanistan By Robert Chesney Lawfare
9 May 2013
Representative Mac Thornberry (a graduate of the University of Texas School of Law) is going to introduce a bill enhancing oversight of kill/capture operations that may be conducted by US armed forces outside of Afghanistan. The CIA is not included in this legislative proposal. This article analyses the proposal and the author suggests this is an important adjustment to the legal architecture that governs kinetic national security activities and a long-needed response to the increasing significance of such activities outside of conventional battlefields in the post-9/11 era. There is also a link to the bill, which may be accessed [here]. A definition is provided to "Sensitive Military Operations" which has 4 elements:
  1. Operation involves lethal force or attempt to capture
  2. Carried out by US armed forces
  3. Carried out abroad (but see section 130f(d) which excludes Afghanistan for now)
  4. Carried out under color of the 2001 AUMF or Article II authority
A helpful analysis of this bill is also available by Kenneth Anderson, on the Opinio Juris website.
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May The Syrian Predicament By Nadav Morag e-International Relations
9 May 2013
The civil war playing out in Syria is an extreme manifestation of a common problem: the creation of independent states based on boundaries that did not reflect social and demographic realities. Of course, there are many successful nation-states that are multi-ethnic, multi-religious, etc., and have also managed to create stable societies with a strong degree of national cohesion. This is usually because they have created a strong civil society and an alternative national identity and narrative that pull people away from more narrow sectarian identities, particularly as the generations that were present at the genesis of the state, or who arrived later as immigrants, gave way to new generations that were born and bred in the new society. If things are to improve, the inhabitants of Syria must somehow achieve one of three options: a federal state, a confederation, or the partition of the country into a number of independent states.
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May Syria: The True Chaos Will Begin After the Fall of the Regime By Jonathan Panikoff Small Wars Journal
6 May 2013
Syria is already in crisis but the death or departure of President Bashar al-Asad is likely to intensify violence and destruction in the country, not quell it. With the conflict already growing more sectarian in nature, Western governments should be prepared for Asad's exit to serve as a catalyst for increased chaos and a proliferation of violence between religious and ethnic blocs. In turn, Syria has the potential to become embroiled in ethno-sectarian strife similar but potentially worse than that which has pervaded Iraq since the middle of the last decade. Alawites, Salafists, Sunnis, Kurds, Christians, and Druze all have equities in Syria and current conflicts between those groups will only be exacerbated. Those groups fighting together today against the Asad regime will likely find themselves enemies after the regime falls. Increased ethno-sectarian violence in Syria makes no promise of staying within the country's borders and any spillover to Lebanon, Turkey, or Jordan could turn the Syrian sectarian conflict into a regional war.
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May Israeli bombing of Syria and moral relativism By Glenn Greenwald Guardian
6 May 2013
No universally applied principle justifies the Israeli attack on Damascus. Only self-flattering tribalism does that. The author explores the Israeli air strikes in Syria against government military targets and turns the situation around to look at how nations would react if the protagonists were switched. He highlights the hypocrisy of US foreign policy and the "might is right" approach to international relations. He says that, because people who cheer for military action by their side like to pretend that they're something more than primitive "might-makes-right" tribalists, the claim is being hauled out that Israel's actions are justified by the "principle" that it has the right to defend itself from foreign weapons in the hands of hostile forces. But is that really a "principle" that anyone would apply consistently, as opposed to a typically concocted ad hoc claim to justify whatever the US and Israel do? Most thought provoking and cogent.
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May Hawking Something - The Syria interventionists want us to go to war. They're wrong. By Micah Zenko Foreign Policy
30 April 2013
A thought provoking and persuasive analysis of the arguments in favour of taking some form of military action against the Syrian government of Bashar Al-Assad, and why those arguments are flawed. The so-called "red line" of chemical weapon use, which the hawks say has been crossed, and which they accuse President Obama of ignoring at his peril, is demonstrated to be fatuous rhetoric. Using or threatening to use force to "signal" is a fool's errand. The moral imperative, described as "The humanitarian impulse to apply military tactics selectively in Syria, or provide advanced weapons to specific rebel groups is understandable given the horrors unfolding on the ground, overwhelmingly committed by the Assad regime. But such action cannot be achieved by U.S. military power. Quoting a U.S. official's statement to Reuters: "There's a lot of analysis to be done before reaching any major decisions that would push U.S. policy more in the direction of military options." Advocates of military intervention need to define their strategic objectives in Syria and outline how the use of force can accomplish it. So far, no one has done so.
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1 May Arming Syrian Rebels: Lethal Assistance and International Law By Ashley Deeks Lawfare
1 May 2013
Various members of Congress exhorted the United States to increase its assistance to the Syrian rebels, whether by providing them with additional (lethal) equipment, or by establishing a no-fly zone, or by entering Syria to secure its chemical weapons caches. But even the provision of lethal equipment to the Syrian rebels has implications in international law. In Nicaragua v. United States, the International Court of Justice evaluated alleged U.S. assistance to the contra rebels, who were operating in and against Nicaragua. The Court concluded that the US provision of arms and training to rebels "can certainly be said to involve the threat or use of force against Nicaragua", although it did not constitute an "armed attack". This arming and training also violated the international legal principle of non-intervention. The lack of public discussion about the relevance of article 2(4) UN Charter to the provision of arms suggests that one (or more) of four things is going on.... Read more
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April Briefing Paper: Iran - Red Lines and Grey Areas by Shashank Joshi and Hugh Chalmers RUSI
22 April 2013
This Briefing Paper takes stock of the various war-triggering red lines that Iran's adversaries have set, and those that they might later set, with a particular focus on those associated with a realistic risk of war. This paper does not endorse the wisdom of imposing these red lines, but rather seeks only to discuss what they mean, how they are expressed, and how they might be interpreted and misinterpreted. As Iran's nuclear programme has grown over time, policy-makers have been faced with the question of whether and where they should draw red lines for Tehran. The United States and Israel have already drawn red lines, effectively warning Iran that building nuclear weapons or accumulating too much uranium would trigger war. But even these supposedly clear threats are marked by areas of ambiguity. This leaves unanswered questions as to what would and what would not be seen as grounds for military action – and therefore what Iran might be deterred from doing.
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April NATO's Lack Of Any Serious Purpose Means It Should Retire by Doug Bandow Forbes
22 April 2013
European countries want to be military powers, but increasingly are failing to maintain capable forces. America always has been the dominant power in NATO. The U.S. may soon be the only effective power in the alliance. NATO should retire. After the collapse of the U.S.S.R. the transatlantic alliance became irrelevant. Its purpose, famously explained Lord Hastings Ismay, was "to keep the Russians out, the Americans in, and the Germans down." All of these objectives had been met. So what should NATO do as the troops come home from Afghanistan? One of the event's participants urged Syria as the next mission for the alliance. If not, then what is the use of NATO, he asked? However, the conflict poses no direct threat to any alliance member—a few artillery shells landing on Turkish territory don't count. Getting involved in a brutal civil war in which one side possesses a sizable army armed with chemical weapons and the other side includes many anti-Western radicals would be madness. America's Cold War security policy shielded war-torn allies until they could recover and gain the economic means and political stability to defend themselves. That policy was a great success. Now Washington should celebrate by turning NATO over the Europeans.
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April Global Jihad in Syria: Disputes Amidst a Common Goal by Yoram Schweitzer and Gal Toren INSS Insight No.419
18 April 2013
Various assessments about how and when the Assad dynasty will come to an end and what reality will reign in Syria thereafter continue to be published, joining the numerous predictions of the past year and anticipating the assessments that will no doubt continue to emerge until the struggle in the divided country is concluded. At the same time, the indecision of the Western countries, headed by the US, about which policy should be pursued, what type of aid would be most effective for the Syrian opposition elements, and how it should be given, also continues. These opposition elements include Islamic factions whose religious affiliation ranges between identification with the Muslim Brotherhood and global jihad factions identified with the Salafi-jihadist movement. Recent statements by global jihad factions inside and outside Syria reflect not only a joint vision of making post-Assad Syria part of an Islamic caliphate, but also differences over the struggle to free Syria and what constitutes appropriate behavior toward the local population. Practically all regard the campaign in Syria as an opportunity to institute an Islamic regime enforcing Islamic law, or at the very least, to take over parts of Syria and turn them into a base for a regional jihad campaign. The analysis poses serious questions for governments, including UK and US, who want to provide military aid to the Syrian rebels and highlights huge problems that lie in store if the rebels succeed in defeating Assad's forces which, in itself, is not a foregone conclusion.
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April Trial by Error: Justice in Post-Qadhafi Libya by International Crisis Group Full Report,
Executive Summary
17 April 2013
There are many necessary cures to Libya's pervasive insecurity, but few more urgent than repairing its judicial system. Qadhafi-era victims, distrusting an apparatus they view as a relic, take matters in their hands; some armed groups, sceptical of the state's ability to carry out justice, arbitrarily detain, torture or assassinate presumed Qadhafi loyalists; others, taking advantage of disorder, do violence for political or criminal aims. All this triggers more grievances, further undermining confidence in the state. The situation has been complicated by the proliferation of armed groups. Distrustful of the Qadhafi-era judiciary and police, frustrated by the slow pace of trials against former officials, facing state security forces in disarray and emboldened by their new power, so-called revolutionary brigades – and, at times, criminal gangs posing as such – have been operating above the law, hindering the work of investigators and judges. The government will have to provide visible signs that it is addressing shortcomings inherited from the past in order to restore confidence in the justice system and security forces. Criminal prosecutions against high-ranking Qadhafi-era officials are an important step, but they will not suffice; what is needed is a more comprehensive transitional justice process that, in addition to criminal trials, includes appropriate vetting mechanisms for former regime loyalists and truth commissions. At the same time, armed groups – even those hailed as heroes of the uprising – will need to be held accountable for their actions as well; justice for victims of yesterday's crimes must go hand-in-hand with justice for victims of today's.
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April The Report of The Constitution Project's Task Force on Detainee Treatment by The Constitution Project The Constitution Project,
16 April 2013
The Constitution Project's Task Force on Detainee Treatment is an independent, bipartisan, blue-ribbon panel charged with examining the federal government's policies and actions related to the capture, detention and treatment of suspected terrorists during the Clinton, Bush and Obama administrations. The project was undertaken with the belief that it was important to provide an account as authoritative and accurate as possible of how the United States treated, and continues to treat, people held in our custody as the nation mobilized to deal with a global terrorist threat. Its findings conclude that
1. U.S. forces, in many instances, used interrogation techniques on detainees that constitute torture. American personnel conducted an even larger number of interrogations that involved "cruel, inhuman, or degrading" treatment. Both categories of actions violate U.S. laws and international treaties. Such conduct was directly counter to values of the Constitution and the US nation.
2. The USA's most senior officials bear ultimate responsibility for allowing and contributing to the spread of illegal and improper interrogation techniques used by some U.S. personnel on detainees in several theaters. Responsibility also falls on other government officials and certain military leaders.
This is a 600 page report which is uncompromising in its scrutiny, analysis and conclusions. Among its recommendations is that U.S. intelligence professionals and service members in harm's way need clear orders on the treatment of detainees, requiring, at a minimum, compliance with Common Article 3 of the Geneva Conventions. Civilian leaders and military commanders have an affirmative responsibility to ensure that their subordinates comply with the laws of war. It also concluded there was no evidence to show that the use of these techniques produced significant information of value.
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April The Syrian Heartbreak by Peter Harling, Sarah Birke Middle East Research and Information Project,
16 April 2013
An exceptional analysis of the conflict in Syria, which looks impartially at both sides and the beliefs, aspirations and fears that drive them. The tragedy of the conflict is its huge cost in human and cultural terms. Despite belated realization of the conflict's horrendous costs -- by the end of the year, aid agencies predict, there will be 3.6 million refugees and 6 million in need inside the country, out of a population of 23 million -- outside players show no sign of willingness to agree among themselves to help Syrians find a solution. Much mooted Russian-American negotiations have led nowhere, as Moscow stubbornly continues to back Asad and Washington is unwilling to offer incentives to alter that calculus. Meanwhile, countries united only by their rejection of Asad give priority to their own differing interests and rivalries as they vie to lift their clients above others within the opposition, exacerbating its fissiparous nature. The authors point to outside interference as being the reason the conflict reached such cataclysmic proportions. Bashar al-Asad could not have unleashed the full force of his failing army without the political cover, morale boost and logistical aid that unexpectedly came from Russia in early 2012. The opposition's allies are not free of blame, either. They would have thought twice about taking up arms had it not been convinced by shallow shows of Western outrage that it would not be left to face the consequences alone. On the front lines, the opposition's huge consumption of cash, weapons and ammunition has in large part been underwritten by sympathetic foreign states, notably Qatar and Saudi Arabia. Islamist networks, Syrian businessmen and the spoils of conflict have been an integral part of the economy of violence, but war on this scale is primarily a matter of public, not private funds. The conflict's next step likely will be to engulf -- and ultimately destroy -- the capital, the seat of power, Syrian identity and what is left of the state. The consequences go beyond the predictable. In many other encounters, the regime has escalated its violence in response to opposition gains while the opposition has become more ruthless. But despite all, there remain numerous signs of hope in Syrian society.
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April Progressive Development of International Human Rights Law: The Reports of the Independent International Commission of Inquiry on the Syrian Arab Republic by Tilman Rodenhäuser European Journal of International Law
13 April 2013
The crisis in Syria has entered its third year and violence has risen to unprecedented levels. This is not only the case for acts committed by regime forces but also for violence by members of different armed groups fighting the Assad regime. In the absence of an investigation by the International Criminal Court, the reports of the Commission of Inquiry on Syria provide extensive insight in the ongoing armed conflict and shed light on the continuing violations of international law. Faced with a situation in which it was unclear whether the laws of armed conflict apply, the Commission of Inquiry decided to take a progressive approach and apply peremptory human rights law to armed groups.
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April Declaration on Preventing Sexual Violence in Conflict G8, United Kingdom Foreign Policy
11 April 2013
Ministers recognised the need to strengthen UN efforts to address sexual violence in armed conflict and committed to provide further support to the Special Representative as chair of UN Action Against Sexual Violence in Conflict as well as to the Secretary-General's Special Representative on Children and Armed Conflict to assist in the implementation of her mandate to address sexual violence against children in armed conflict.
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April Army law: uniform instructions by Ben Rigby Law Society Gazette
8 April 2013
Some press reports estimate that up to one in four of the army's lawyers face being cut. And the overall picture for the army is one of drastically reduced headcount – the Ministry of Defence's Future Force 2020 plans will see the army cut 20,000 regular soldiers by 2020, with the number of regular soldiers set to fall to 82,000. Last year, during the second completed phase of cuts, four Army Legal Services lieutenant colonels applied for voluntary redundancy. But even at a time of falling overall headcount, new recruits are still needed – and in the case of the ALS, the attractions of the role remain as strong as ever. The fallout from some army controversies have even served to expand the ALS's responsibilities.
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March Privatizing War: Private Military and Security Companies under Public International Law Lindsey Cameron and Vincent Chetail Cambridge University Press
March 2013

ISBN: 9781107032408
A growing number of states use private military and security companies (PMSCs) for a variety of tasks, which were traditionally fulfilled by soldiers. This book provides a comprehensive analysis of the law that applies to PMSCs active in situations of armed conflict, focusing on international humanitarian law. It examines the limits in international law on how states may use private actors, taking the debate beyond the question of whether PMSCs are mercenaries. The authors delve into issues such as how PMSCs are bound by humanitarian law, whether their staff are civilians or combatants, and how the use of force in self-defence relates to direct participation in hostilities, a key issue for an industry that operates by exploiting the right to use force in self-defence. Throughout, the authors identify how existing legal obligations, including under state and individual criminal responsibility should play a role in the regulation of the industry.
Raises important and timely questions to ongoing debates on regulating the industry
Explores the existing law and offers new insights
Provides a detailed analysis on the key areas of international law from a unified perspective
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April International Code Of Conduct For Private Security Service Providers' Association Articles Of Association Website
16 March 2013
The International Code of Conduct for Private Security Service Providers (ICoC) is a Swiss government convened, multi-stakeholder initiative that aims to both clarify international standards for the private security industry operating in complex environments, as well as to improve oversight and accountability of these companies. Based on international humanitarian and human rights law, the Code was developed through a transparent and inclusive multi-stakeholder process. Full details on the process are available in the ICoC Timeline. The Code sets-out human rights based principles for the responsible provision of private security services. These include rules for the use of force, prohibitions on torture, human trafficking and other human rights abuses, and specific commitments regarding the management and governance of companies, including how they vet personnel and subcontractors, manage weapons and handle grievances internally. The text of the Code, in its various languages. Prior to commencing UN service, the Guidelines require the APSC to provide training to its personnel on, among other things:
  • cultural sensitivity training
  • Human Rights Law and application
  • Use of Force training
  • integrity and ethical awareness
  • preventing sexual harassment
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March Terrorism: International Case Law Reporter 2011 By Charles Garraway (Contributor), Elies van Sliedregt (Contributor), Simon Butt (Contributor), Anton du Plessis (Contributor), Michael Newton (Editor) OUP
20 March 2013
Published annually, Terrorism: International Case Law Reporter is a collection of the most important cases in security law from around the world. Handpicked and introduced by internationally renowned terrorism scholar Michael Newton and by a distinguished board of global experts, the cases included cover topics as diverse as human rights, immigration, freedom of speech, and terrorist financing. All cases are also accompanied by headnotes that summarize the key issues for the benefit of researchers. This unique resource serves scholars, students, and practitioners seeking an authoritative and comprehensive resource for security law research like no other publication on the market.
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March 5 truths about the drone war By Marc Ambinder The Week
16 March 2013
In war, words matter. The author looks at the US "drone war", which is not, in point of fact, a war, and involves "drones" only incidentally. And yet the concept of hovering, amoral surveillance machines with missiles attached to them is pretty much the way everyone describes a much different reality. The author also challenges the oft cited use of CIA civilians to remotely pilot such aircraft.
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March Aviano II By Eugene R. Fidell Balkinization
9 March 2013
An most interesting article that examines the statutory grant of unbridled post-trial review powers to US commanders, urging Congress ought to fully inform itself of the trend in democratic countries to move away from this role for commanders. The author argues that the convening authority's post-trial power of review is a throwback to an earlier age and fundamentally discordant with other, more modern aspects of the military justice system. He also argues that Congress should also look at the front end of the military justice system, where non-lawyer convening authorities enjoy equally broad discretion to decide which cases will be referred for trial by court-martial.
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March Deportation of individuals who may face a risk of torture By Alexander Horne and Melanie Gower House of Commons Briefing Note, SN/HA/4151
6 March 2013
International law places obligations on the UK when deporting individuals to countries where they may face a real risk of torture. Although the Refugee Convention allows refugees to be removed if they pose a risk to national security, the absolute prohibition on torture in the European Convention on Human Rights was interpreted in the case of Chahal v United Kingdom as precluding a 'balancing act' between a person's national security risk and the risk that he may be tortured on return. The Joint Committee on Human Rights (JCHR) considered the position of other jurisdictions on the absolute prohibition on deportation to face a risk of torture. It indicated that "the absolute prohibition of deportation to face a risk of torture has been challenged in other jurisdictions, notably in Canada". A useful examination of the applicable law.
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March Consent to the Use of Force and International Law Supremacy 2013 By Ashley S. Deeks Harvard International Law Journal / Vol. 54, Winter 2013
Many celebrate international law as a way to compel states to protect human rights. Often it serves this role. But sometimes it has the reverse effect: states use international agreements to circumvent individual rights in domestic law. For example, the United States reportedly relied on Italy's consent to render a terrorist suspect from the streets of Milan into secret detention. Pakistan seems to have authorized U.S. lethal strikes against Al Qaeda members without regard to rights protections in Pakistani law. This Article uses the under-examined phenomenon of international consent to the use of force to explore the larger question of how states use international law to circumvent individual rights. International law facilitates these rights violations by embracing a principle termed "supremacy." Supremacy requires a state to prioritize its international obligations over its domestic laws. This means that a state may rely on another state's consent to an agreement without asking whether that consent violates the rights of individuals in the consenting state. To minimize this manipulation of international law, the Article proposes that states receiving consent to use force bear a "duty to inquire" to ensure that the state consenting to the use of force is acting in a manner consistent with its domestic laws. This solution challenges international law's traditional approach to supremacy. The Article shows why a more functional approach to supremacy for international agreements that operate at the intersection of national security and individual rights will advance the goals of international and domestic law more effectively.
There is an interesting reply to this article, by Duncan Hollis, available on Opinio Juris,
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February Special measures for protection from sexual exploitation and sexual abuse Report of the Secretary-General Report
28 February 2013
Since the adoption of General Assembly resolution 57/306 and the issuance of the Secretary-General's bulletin on special measures for protection from sexual exploitation and sexual abuse (ST/SGB/2003/13), measures have been put in place to prevent and address sexual exploitation and abuse by United Nations personnel. While progress has been made in reducing instances of sexual exploitation and abuse, continued efforts are needed to enforce a policy of zero tolerance and to strengthen accountability. Pursuant to General Assembly resolution 57/306, the present report provides data on allegations of sexual exploitation and abuse in the United Nations system for the period from 1 January to 31 December 2012 and describes further actions to be taken to strengthen accountability, governance, oversight and enforcement.
See commentary by Global Military Justice Reform, 4 March 2014
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February 2013 Targeted Killings and Humanitarian Law By Professor Bonnie C. Brennan A Contrario, 8 February
The relationship between human rights and humanitarian law grows ever more complicated. The current view is that human rights applies at all times everywhere and that humanitarian law is lex specialis, applying only in time of war in the theatre of war with the possible exception of belligerent occupation. The question the author raises in this brief essay is, which law properly applies to the targeted killings currently being undertaken by the Obama administration against suspected terrorists? The author explores the definition of war, the global war on Islam, and asks what is the right body of law applicable. The friction between IHL and HRL is one that prompts her to suggest a further alternative: to develop a new body of law intended exclusively to address the question of terrorism. As a state that everywhere promotes the rule of law, she urges acting consistently with the law lest it be deemed utterly without credibility. It is time to cease and desist from the practice of targeted killings. It is time for us to do what is right because it is the right thing to do.
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February 2013 The Commitment to Non-Violence vs the Demand for Armed Intervention in Humanitarian Emergencies By Chris Tsiachris uPublish.info, 28 February
Article 2.4 of the UN Charter, which was signed in 26 June 1945, was a declaration of the member States of the UN against the use of force and, in the same time, a legal obligation to restrain from it. By this time, in the aftermaths of World War II, states wanted to avoid the danger of war that could emerge from any kind of use of force, including intervention, and this was the reason for prohibiting it. The unique exception to the rule of non-intervention recognized by the UN Charter was the right of "collective self-defence" which was ruled in article 51. In most cases of intervention, the intervening countries alleged that they were in a situation of self-defence. The word "intervention" has come to be used almost as synonym for "invasion" (Annan, 1999:3) because states that invade other states use the word intervention in order to avoid the consequences prescribed in the UN Charter.
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February 2013 Killer robots must be stopped, say campaigners By Tracy McVeigh Guardian, February 23
'Autonomous weapons', which could be ready within a decade, pose grave risk to international law, claim activists. A new global campaign to persuade nations to ban "killer robots" before they reach the production stage is to be launched in the UK by a group of academics, pressure groups and Nobel peace prize laureates.
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February 2013 Targeting and the Concept of Intent. By Jens David Ohlin Social Science Research Nerwork, February 11
International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems, often civil law jurisdictions, prosecutors, judges and even scholars have progressively redefined what it means to "intentionally" target a civilian population. In particular, these accounts rely on the civil law notion of dolus eventualis, a mental state akin to common law recklessness that differs in at least one crucial respect: it classifies risk-taking behavior as a species of intent. This problem represents a clash of legal cultures. International lawyers trained in civil law jurisdictions are nonplussed by this development, while the Anglo-American literature on targeting has all-but-ignored this conflict. But when told of these decisions, U.S. military lawyers view this "reinterpretation" of intent as conflating the principles of distinction and proportionality. If a military commander anticipates that attacking a building may result in civilian casualties, why bother analyzing whether the collateral damage is proportional?
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February 2013 Hate Obama's Drone War? Blame the bleeding-heart human rights crusaders. By Rosa Brooks Foreign Policy, February 14
There's been much comment on the Obama administration's recently leaked Justice Department white paper on the targeted killing of U.S. citizens overseas, but most of the debate has focused on the administration's Orwellian interpretation of the term "imminence." Less remarked upon has been its equally elastic theory of sovereignty. The United States views itself as the sole arbiter of what constitutes an imminent threat to its safety and whether a state is "unwilling or unable" to suppress that threat. It is a legal theory that more or less eviscerates traditional notions of sovereignty, and it has the potential to significantly destabilize the already shaky collective security regime created by the U.N. Charter. Human rights norms have done as much to erode traditional ideas of sovereignty as have more U.S.-centric theories of counterterrorism. In fact, for all their criticism of U.S. drone policy, those in the human rights community often embrace a theory of sovereignty remarkably similar to the theory that undergirds current U.S. counterterrorism policy. They view sovereignty as a privilege states can earn or lose, rather than an inherent right of statehood. The author interestingly considers that according to the concept of R2P, by implication intervention in the territory of a sovereign state need not necessarily be authorised by the U.N. Security Council. She argues that if the Security Council "fails to discharge its responsibility to protect in conscience-shocking situations crying out for action...concerned states may not rule out other means to meet the gravity and urgency of that situation." That argument, based upon the observations in the 2001 ICISS report, appears to run counter to the very soul of the UN Charter and to the important decision of the ICJ in the Corfu Channel Case [1949] ICJ Rep. 4 which had grave reservations about the lawfulness of any policy of force outwith a UN authorisation. The court said such a policy had no place in international law. The author concludes with the important question: "If we toss sovereignty into history's dustbin, what will replace it?"
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February 2013 The hidden story of airpower in Libya (and what it means for Syria) By Frederic Wehrey Foreign Policy, February 11
As the United States and its allies continue to debate intervention in Syria, the example of NATO's air campaign in Libya is frequently marshaled -- often carelessly. Most arguments against drawing unwarranted analogies cite the size of the Syrian military, the robustness of its air defenses compared to Libya's, as well as obvious differences in the countries' sectarian makeup and topography. But no one has bothered to ask Libya's revolutionary fighters and their commanders what they thought of the NATO air campaign and how it affected their strategy, tactics, and morale on the battlefield. This article looks at the lessons to be learned form Libya and the implications for any campaign against Syria.
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February 2013 Globalizing Torture: CIA Secret Detention and Extraordinary Rendition By Amrit Singh, and edited by David Berry Open Society Justice Initiative,
ISBN: 978-1-936133-75-8
Following the terrorist attacks of September 11, 2001, the U.S. Central Intelligence Agency (CIA) commenced a secret detention program under which suspected terrorists were held in CIA prisons, also known as "black sites," outside the United States, where they were subjected to "enhanced interrogation techniques" that involved torture and other abuse. At about the same time, the CIA gained expansive authority to engage in "extraordinary rendition," defined here as the transfer— without legal process—of a detainee to the custody of a foreign government for purposes of detention and interrogation. The report documents the involvement of 54 nations, including the UK, who assisted the secret detention and rendition programmes involving serious human rights violations. The author cogently argues that, by engaging in torture and other abuses associated with secret detention and extraordinary rendition, the U.S. government violated domestic and international law, thereby diminishing its moral standing and eroding support for its counterterrorism efforts worldwide as these abuses came to light. By enlisting the participation of dozens of foreign governments in these violations, the United States further undermined longstanding human rights protections enshrined in international law—including, in particular, the norm against torture.
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January 2013 The British Military Contribution to Operations in Mali: Is This Mission Creep? By Michael Codner, Senior Research Fellow / Director, Military Sciences RUSI Analysis,
30 Jan 2013
As the UK sends 330 personnel to assist France's military intervention in Mali, there are real concerns that, like Afghanistan, the UK will be mired in another intractable conflict. However, the strategic conditions are very different for this to happen and it is wrong to assume there will be mission creep.
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January 2013 The Many Roles of Turkey in the Syrian Crisis By Asli Ilgit, Rochelle Davis Middle East Research and Information Project,
Publication date: January 28, 2013
On October 4, 2012, the Turkish Grand National Assembly approved a motion, by a vote of 320 to 129, authorizing deployment of the armed forces in "foreign countries," essentially where and when the government saw fit. It was an expansive, vague-sounding mandate, but in fact there was only one target: Syria. As Turkey takes on a greater role in international mediation, the behind-the-scenes politics it has been playing with the opposition may be significant in determining who ascends to the top of post-Asad Syria.
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January 2013 Fighting the Mau Mau, The British Army and Counter-Insurgency in the Kenya Emergency By Dr Huw Bennett ISBN:9781107656246,,
Publication date:November 2012

Cambridge Military Histories
British Army counter-insurgency campaigns were supposedly waged within the bounds of international law, overcoming insurgents with the minimum force necessary. This revealing study questions what this meant for the civilian population during the Mau Mau rebellion in Kenya in the 1950s, one of Britain's most violent decolonisation wars. For the first time Huw Bennett examines the conduct of soldiers in detail, uncovering the uneasy relationship between notions of minimum force and the colonial tradition of exemplary force where harsh repression was frequently employed as a valid means of quickly crushing rebellion. Although a range of restrained policies such as special forces methods, restrictive rules of engagement and surrender schemes prevented the campaign from degenerating into genocide, the army simultaneously coerced the population to drop their support for the rebels, imposing collective fines, mass detentions and frequent interrogations, often tolerating rape, indiscriminate killing and torture to terrorise the population into submission.
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January 2013 Does Decapitating Terrorist Leaderships Work? By Dr Anne Speckhard RUSI Analysis,
7 Jan 2013
  republished in "Outside the Beltway"
In the last two-years, international counter-terrorism strategies have focused on decapitating terrorist leaderships. But the threat and the ideology remains. In the coming year it is important to address the psychological motivations for conducting terrorist acts.
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January 2013 Turkey's Syria Problem: A Talking Timeline of Events By Zenonas Tziarras Turkish Policy Quarterly,
Volume 11 Number 3, 30 November 2012
This article analyzes the stages of the Syrian crisis' escalation and the various Turkish reactions. Each stage of Turkey's management of the crisis reveals certain features of its foreign policy. By examining its reactions throughout crisis we can observe the gap between the capabilities and aspirations of Turkish foreign policy. The result is a “talking timeline of events” which shows that the Syrian crisis has been a “reality check” for Turkey.
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