Aspals Reading List 2014

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Last Year's List


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Date Title Author Reference
December A more secure world: Our shared responsibility High-level Panel on Threats, Challenges and Change Report
The purpose of this report is to suggest how nations can work together to meet the formidable challenge of threats that no nation can hope to master by acting alone. It is the work of a panel of sixteen eminent and experienced people, drawn from different parts of the world, whom I asked a year ago to assess current threats to international peace and security; to evaluate how well our existing policies and institutions have done in addressing those threats; and to recommend ways of strengthening the United Nations to provide collective security for the twenty-first century. The report's core argument that what is needed is a comprehensive system of collective security: one that tackles both new and old threats, and addresses the security concerns of all States - rich and poor, weak and strong. The use of force is considered purely within the authority of the Security Council. "It is necessary to distinguish between situations in which a State claims to act in self-defence; situations in which a State is posing a threat to others outside its borders; and situations in which the threat is primarily internal and the issue is the responsibility to protect a State's own people. In all cases, we believe that the Charter of the United Nations, properly understood and applied, is equal to the task: Article 51 needs neither extension nor restriction of its long-understood scope, and Chapter VII fully empowers the Security Council to deal with every kind of threat that States may confront. The task is not to find alternatives to the Security Council as a source of authority but to make it work better than it has. "
Summary extracted by Aspals

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23  December Why Incendiary Weapons are Here to Stay by Dr Sascha-Dominik Bachmann Jurist
22 December 2014
Dr Bachmann discusses the present use of incendiary weapons within its legal framework and why the use of such weapons is most likely to continue, as a response to Human Rights Watch's call to end incendiary weapon use in Ukraine and Syria. He discusses the legal considerations on the use of incendiary weapons under the 1981 Certain Conventional Weapons (CCW) Convention, together with the 2008 Convention on Cluster Munitions and the 1997 Anti-Personnel Mine Convention, Protocol 3 of the CCW, and the Geneva Conventions AP I. In November 2014, Human Rights Watch and Harvard Law School's International Human Rights Clinic called on all nations and especially CCW states to publicly condemn the use of incendiary weapons, express support for reviewing CCW Protocol III on incendiary weapons and work toward developing stronger protections for civilians. Dr Bachmann reminds us that, in addition to a comprehensive ban of incendiary weapons it would need a generation long, holistic approach by the main State parties to ensure that new proliferation of incendiary weapons and the use of existing stockpiles will come to an end—something which he feels amounts to 'wishful thinking' as we see the number of asymmetric and conventional conflicts increasing.
Summary extracted by Aspals

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9  December Do Attacks on ISIS in Syria Justify the "Unwilling or Unable" Test? by Kevin Jon Heller Opinio Juris
December 13th, 2014
The author re-visits the argument that the right of self-defence under Art. 51 of the UN Charter extends to situations in which states are "unwilling or unable" to prevent non-state actors from using their territory to launch armed attacks, even though no cases had been found in which states clearly assert that they follow the test out of a sense of legal obligation (i.e., the opinio juris aspect of custom). He is principally concerned with the argument presented by Ashley Deeks, a fellow at Columbia and a former member of the Office of the Legal Adviser, entitled "'Unwilling or Unable': Toward an Normative Framework for Extra-Territorial Self-Defense" (Aspals Summary). In a systematic analysis, the author casts significant doubt on the legitimacy of the "unwilling or unable" test in regard to Syria.
Summary extracted by Aspals

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9  December
Committee Study of the Central Intelligence Agency s Detention and Interrogation Program (CIA torture report) Senate Select Committee on Intelligence Download (64Mb)
Declassification Revisions December 3, 2014
On December 11, 2007, the Senate Select Committee on Intelligence initiated a review of the destruction of videotapes related to the interrogations of CIA detainees Abu Zubaydah and 'Abd al-Rahim al-Nashiri after receiving a briefing that day on the matter by CIA Director Michael Hayden. At that briefing, Director Hayden stated that contemporaneous CIA operational cables were "a more than adequate representation of the tapes," and he agreed to provide the Committee with limited access to these cables at CIA Headquarters. On February 11, 2009, after the Committee was presented with a staff-prepared summary of the operational cables detailing the interrogations of Abu Zubaydah and al-Nashiri, the Committee began considering a broader review of the CIA's detention and interrogation practices. On March 5, 2009, in a vote of 14 to 1, the Committee approved Terms of Reference for a study of the CIA's Detention and Interrogation Program. This is a revealing report of the use of torture and "enhanced interrogation" techniques by US state agents against prisoners in their custody. The committee made a number of findings, some of which are:
  1. The CIA's use of its enhanced interrogation techniques was not an effective means of acquiring intelligence or gaining cooperation from detainees.
  2. The CIA's justification for the use of its enhanced interrogation techniques rested on inaccurate claims of their effectiveness.
  3. The interrogations of CIA detainees were brutal and far worse than the CIA represented to policymakers and others.
  4. The CIA repeatedly provided inaccurate information to the Department of Justice, impeding a proper legal analysis of the CIA's Detention and Interrogation Program.
  5. The CIA actively avoided or impeded congressional oversight of the program
  6. The CIA actively avoided or impeded congressional oversight of the program
  7. The CIA impeded effective White House oversight and decision-making.
  8. The CIA's operation and management of the program complicated, and in some cases impeded, the national security missions of other Executive Branch agencies.
  9. The CIA coordinated the release of classified information to the media, including inaccurate information concerning the effectiveness of the CIA's enhanced interrogation techniques.
  10. CIA detainees were subjected to coercive interrogation techniques that had not been approved by the Department of Justice or had not been authorized by CIA Headquarters.
  11. The CIA failed to adequately evaluate the effectiveness of its enhanced interrogation techniques.
See also the CIA Director's response to the report.
Summary extracted by Aspals

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26  November Jaloud v Netherlands: New Directions in Extra-Territorial Military Operations By Dr Aurel Sari EJIL Talk
November 24, 2014
Dr Sari very helpfully analyses the decision in the ECHR case of Jaloud v Netherlands and the vexed question of extra-territorial jurisdiction. Jaloud is the latest in a growing line of Strasbourg cases addressing the application of the Convention to extra-territorial military operations. The Court's jurisprudence on the subject is a source of endless fascination. Like any good thriller, its twists and turns leave the observer suspended in fearful anticipation on a never ending quest for legal certainty. Will the law stretch as far as the facts or is jurisdiction a threshold too far? Will the Court prevail against conceptual confusion? Which of its dicta is up for silent reversal? And what will be the next victim of normative conflict? The Court's recourse to the concept of full command represents a significant departure from its earlier case-law. It ignores the fact that national contingents may exercise powers which do not belong to their sending States, but derive from their international mandate. If the concept of jurisdiction is understood not as pure factual control or coercion, but to include a normative element of authority, then this approach is rightly criticized as overinclusive.  [Ed: It is interesting that, for a Grand Chamber decision which so significantly affects the very issue raised in the same chamber's decision in Behrami, there is no mention whatsoever of that case. It remains to be seen if nations will remain prepared to assist the international community by participating in UN ops when the ECtHR strives, at every turn, to impose the supremacy of the Convention over other treaties. What effect will this have on our relationship with non-ECHR allies over difficult issues such as detainee handling?]
Summary extracted by Aspals

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29  October Folk International Law and the Application of LOAC in Counterterrorism Operations By Charles Kels Lawfare
October 29, 2014
The author participates in a discussion on the potential consequences and confusion that result from amalgamating distinct legal doctrines, regardless of whether such creative tinkering is couched under the rubric of "policy." He to focuses on one aspect of the debate: namely, the principle that the U.S. armed forces comply with LOAC in counterterrorism operations (and for that matter, in all operations). He considers that, at the operational level, there are three areas of LOAC that the current debate overlooks.
Summary extracted by Aspals

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16  October Authorizing Force: A Review of Turkish, Dutch and French Action By Fionnuala Ní Aoláin (Fionnuala Ni Aolain) Just Security
October 16, 2014
As the number of states using military force against ISIS in Syria and Iraq have increased, a series of domestic authorizations have emerged from their national executives and parliaments. The legitimacy of the use of force under domestic and international law retains particular symbolic importance given the perception of legitimacy deficits in controversial cases such as NATO's 1999 Kosovo campaign and the second Iraq war. Examining the specificity of various domestic authorizations shows a significant (if not unexpected) variety in state practice, and these differences may function to de facto limit the use of force by particular states. The challenge of these differences may be all the more cogent when states operate in a multinational force context where various participants function under different constraints in their operational capacities. The authorizations underscore the necessity of domestic processes to garner the symbolic capital that states need to legitimize the use of force outside their territories.
Summary extracted by Aspals

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August Applicability Test of Additional Protocol II and Common Article 3 for Crimes in Internal Armed Conflict By Noelle Quenivet Application of International Humanitarian Law in Judicial and Quasi-Judicial Bodies
The Hague, TMC Asser Press, 2014, at 31-60.
Although the use of international criminal law to ensure that individuals are protected in times of armed conflict is to be welcome some questions are left unanswered, notably relating to the qualification of a non-international armed conflict. Treaty law knows of two types of non-international armed conflicts. This could appear as a purely legalistic distinction if it did not entail a distinction in the content and scope of the protection offered to certain persons and in the prohibition of certain types of acts. The problem increased as those norms were criminalised through jurisprudence and Statutes of international criminal tribunals. It became hence of utmost relevance to qualify properly the non-international armed conflict as one falling within the purview of Common Article 3 or Additional Protocol II. While it is widely accepted that violations of Common Article 3 entail criminal liability because of their customary nature, this seems to be less true for all violations contained in Additional Protocol II. To add to the already complicated array of types of armed conflicts, international tribunals have adopted definitions of armed conflicts that do not fall squarely in any of the above-mentioned provisions or their customary equivalent. In addition, the Statute of the International Criminal Court, that is deemed to represent the current status of the law, offers definitions of armed conflict that appear prima facie to be different from those expounded in treaty law and in the jurisprudence. Dr Quenivet helpfully examines whether international legal rules, including treaty, customary international law and jurisprudence, provide for one, two or potentially three types of non-international armed conflicts. In particular, she investigates whether the definitions used by the international criminal tribunals and courts to trigger the application of war crimes provisions coincide with the definitions expounded in treaty and customary law.
Summary extracted by Aspals

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28 August Trying to Classify the Conflict in Eastern Ukraine…. By Noelle Quenivet IntLawGrrls
August 28, 2014
On 23 July the International Committee of the Red Cross (ICRC) released a statement declaring inter alia that the conflict in eastern Ukraine was of a non-international nature. Yet, one may rightly question whether the conflict has become international, bearing in mind the recent events. There are chiefly two ways to draw the conclusion that a non-international armed conflict has turned into an international one (see International Criminal Tribunal for the Former Yugoslavia (ICTY), Tadic Appeals Judgment, 15 July 1999, para 84). First, the armed conflict falls within the remit of Common Article 2 to the 1949 Geneva Conventions because two or more High Contracting Parties, i.e. States and in this instance, Russia and Ukraine, have recourse to armed force against each other. Second, the conflict that was initially of a non-international nature, opposing the 'rebels' to the State forces has been internationalised by the actions of Russia.
Summary extracted by Aspals

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22 August Malaysia Airlines flight MH17: the day Russia became a state sponsor of terrorism By Sascha-Dominik Bachmann Amicus Curiae
Issue 95, Autumn 2014
Updating his earlier article on the downing of flight MH-17 and the ensuing deaths of all on-board, Dr Bachmann highlights some possible responses to the crime with a particular focus on a potential terrorism argument. While the US and its intelligence services were quick in identifying the pro Russian separatists as having been responsible for launching the missile, Russia was quick to shift the blame to the Ukraine itself, asking why civil aircraft hadn't been barred completely from overflying the region. Dr Bachmann considers that, while we await the results of an international investigation into the causes of the disaster, we have to use the circumstantial evidence we have so far which points at Moscow's complicity in the crime at least, and then go on to determine how to respond. As ever, a stimulating article from Dr Bachmann in which he concludes that what has become clear already is Russia's potential new role as state sponsor of terrorism.
Summary extracted by Aspals

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29 September Having Crossed the Rubicon: Arming and Training Syrian Rebels By Ryan Goodman and Michael Schmitt Just Security
29 September 2014
Significant public discussion has focused on whether airstrikes against ISIL in Syria violate the international legal prohibition on the use of force. Remarkably what has largely escaped attention is that the very same question applies to the ongoing arming and training of the Syrian rebels. Under international law, arming or training rebels also constitutes a "use of force" — and can only be justified by the consent of the territorial state, the right of national or collective self-defense, or Security Council authorization. A "must read".
Summary extracted by Aspals

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27 September What do Russian Lawyers Say about Crimea? By Anton Moiseienko Opinio Juris
24 September 2014
Few people with any background in international law would doubt that Russia's annexation of Crimea raises serious questions of compliance with international law. However, so far Russian academics and practitioners have largely remained in the shade, at least on the international arena, while Russian state officials felt free to interpret international law up to the point of redesigning it. Yet – what do we know about Russian lawyers' attitudes to the annexation of Crimea? Interesting article.
Summary extracted by Aspals

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23 September Strikes in Syria: The International Law Framework By Jennifer Daskal, Ashley Deeks and Ryan Goodman Just Security
23 September 2014
The United States hit targets inside Syria, some of which were directed at ISIL, and some at a group that has only recently been brought to the public's attention – the Khorasan Group, which is reportedly comprised of al Qaeda militants and led by senior al Qaeda officials from among Usama bin Laden's inner circle. According to a letter submitted by the United States to the United Nations on Tuesday, the Administration is justifying the strikes against ISIL as a lawful exercise of collective self-defense of Iraq. The letter then goes on to state that the strikes against the Khorasan Group "address terrorist threats that they pose to the United States and our partners and allies." As the letter suggests, the legal justification for strikes against ISIL is presumably not the same as that for strikes against Khorasan. The following unpacks some of the key differences: (See also Ashley Deeks here and here and Ryan Goodman here and here for analysis of some of these issues.) 1. Collective Self-Defense and ISIL; 2. Defense of U.S. Nationals and ISIL; 3. Collective Self-Defense and Khorasan? 4. Possible Theories Justifying Strikes Against Khorasan.
The United States may also be separately asserting a claim of anticipatory self-defense. The Pentagon seemed to lay the framework for that position, stating that Khorasan was "nearing the execution stage of launching an attack on Europe or the homeland."
Summary extracted by Aspals

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14 August Robust Peacekeeping Missions Kristen Boon Opinio Juris
14 August 2014
Peacekeeping missions such as the UN's intervention brigade in the DRC (established within MONUSCO by Security Council resolution 2098) have important legal implications. In particular, if the Brigade is considered a party to the conflict in the Congo, do peacekeepers become combatants? Can they be captured and detained? For an overview of the main issues see the ASIL analysis by Bruce Oswald here & the new ICRC review. New peacekeeping missions also raise questions of attribution.
Summary extracted by Aspals

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1 August When Does the Combatant's Privilege Apply? House of Commons Defence Committee Opinio Juris
1 August 2014
Under any view, the privilege of combatancy is key to the basic architecture of the law of war. It stands at the fault line between domestic criminal law and International Humanitarian Law, between impermissible killing and lawful belligerency. Simply put, the privilege of combatancy transforms, almost magically, what would otherwise be an unlawful act of murder into a lawful killing consistent with jus in bello. How does this transformation happen? However it happens, it is a powerful legal mechanism, and one whose exact contours demand definition and clarity. See also: The Combatant's Privilege in Asymmetric & Covert Conflicts.
Summary by Aspals

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27 July Intervention: Why, When and How?: Government Response to the Committee's Fourteenth Report of Session 2013–14 House of Commons Defence Committee Download Report
July 29, 2014
The Government begins its response by stating that "We believe that meeting the UK's wider global responsibilities is an intrinsic part of the UK's national interest. The shaping of a stable world and tackling the drivers of instability involves, amongst other instruments of Government, the use of the Armed Forces (i.e. intervention) for humanitarian purposes. We therefore believe that the broader concept of intervention desired by HCDC, including intervention for humanitarian purposes, is already contained in the 2010 NSS and it does inform MOD's actions. However, we will consider the value of making this more explicit in future iterations of the NSS and SDSR... In order to protect and further our enlightened national interest (the principle that our security, prosperity and freedom are interconnected, mutually supportive and constitute our national interest), the 2010 NSS established that our response must encompass two complementary strategic objectives: ensuring a secure and resilient UK; and shaping a stable world." The casual reader will not have missed the extraordinarily wide ambit of "national interest". It makes unreal reference to the projection of military force when the truth is that we now have one of the smallest armed forces in our history and admits that we will regard NATO as the "bedrock of our defence". It maintains an illegal response, outwith permission through a UN mandate and absent self defence, by insisting that there is a right of 'humanitarian intervention'. This is simply wrong. If this is a strand of our foreign policy, then this document is, indeed, a depressing read!
Summary by Aspals

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15 July "Uniting for Peace": Does It Still Serve Any Useful Purpose? Larry D. Johnson AJIL Unbound
July 15, 2014
A very useful examination of this General Assembly resolution which seeks to seize legal power from the Security Council in the event that one of the SC members exercises a veto. The same question that arose in 1950 has thus arisen again today: can the General Assembly do anything when the Council is blocked because of a permanent member casting a veto? The answer is "yes." But the reason is not because of the Assembly's resolution 377A(V) of November 3, 1950 ("Uniting for Peace"), even though advocates of Assembly action frequently invoke it. He shows that the Uniting for Peace process is an exceptional one, born out of the Korean crisis in the 1950s, when the Soviet Union deliberately absented itself from the Security Council, as a protest at China's representatives there. The Soviet Government assumed that without one of the permanent members, the Council could take no substantive decisions however, it misjudged. Once it saw that decisions were being taken in its absence, its representatives returned and began vetoing resolutions dealing with the Korean crisis. It was in this context that the United States and those assisting South Korea were faced with the question of how to continue UN oversight of the Korean crisis without the Council. Thus was born the Uniting for Peace resolution, proposed by U.S. Secretary of State Dean Acheson to enable the Assembly to consider and make recommendations on matters which the Council had been unable to act upon due to Soviet vetoes.
Summary by Aspals

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27 July Article 2 and combat immunity – where next after Al-Skeini and Susan Smith? Ross Beaton UK Human Rights Blog
July 27, 2014
When will a court order an inquiry into the deaths in combat of soldiers serving overseas? Following recent judgments of the English and Strasbourg courts extending the application of the European Convention on Human Rights to zones of armed conflict overseas in certain circumstances, the question is likely to arise frequently over the coming years. In R(Long), the Divisional Court strongly endorsed the doctrine of combat immunity and appeared to set its face against the recent rise in claims against the MoD by soldiers deployed abroad and their next of kin. Should R(Catherine Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, while remaining a leading case on coroners' inquests, now be approached with caution in relation to combat deaths? In circumstances where the Supreme Court has explicitly left the possibility of claims in negligence and under article 2 open, the Divisional Court's comments on combat immunity appear to go too far and to amount to the very blanket assertion of combat immunity which the Supreme Court has now rejected.
Summary extracted by Aspals

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July Mind the Gap: Can Developers of Autonomous Weapons Systems be Liable for War Crimes? Tim McFarland and Tim McCormack 90 INT'L L. STUD. 361 (2014)
Also available in the Documents folder
A thought-provoking article that takes a step back from the responsibility for actual deployment of robot weapons to the potential liability of those who develop them in the first place. The decision to deploy an autonomous weapons system is now not predicated on the ongoing exercise of human oversight over the system; control over the behavior of the weapons system in military operations will have been exercised much earlier in the programming of the system. The law is adaptable and capable of regulation of the current and foreseeable future generations of autonomous weapons systems. There may well be new aspects here that will require particular amendment, revision and adaptation, but there is no wholesale existential threat to the existing law of armed conflict. In the development of new weapons technology, lawyers and policymakers are obliged to ensure that compliance with the law will be maintained and that those who seriously violate the law are held accountable. The authors focus on the particular issue of accountability for developers of autonomous weapon systems. Development of any modern weapon is a complex undertaking; large teams of people and organizations are involved at all stages of the process, from creation of the concept, through the various stages of development (with extensive interaction between military decision makers providing specifications, producers responding to those specifications, and those responsible for testing and approval for production) to production and ultimately deployment. "Developers," for the purposes of this article, refer broadly to people who play some significant role in defining the behavior of an autonomous weapons system, as opposed to "operators," which refer to those responsible for utilizing the system in some situation during armed conflict.
Summary extracted by Aspals

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July The downing of Malaysian Airlines Flight MH17 Sascha-Dominik Bachmann OUP Blog
July 22nd, 2014
With new information being released hourly strong evidence seems to indicate that the airliner was downed by a sophisticated military surface to air missile system, the SA-17 BUK missile system. This self-propelled air defence system was introduced in 1980 to the Armed Forces of the then Soviet Union and which is still in service with the Armed forces of both Russia and Ukraine. There is growing suspicion that the airliner was shot down by pro-Russian separatist forces operating in the area, with one report by AP having identified the presence of a rebel BUK unit in close proximity of the crash site. The United States and its intelligence services were quick in identifying the pro-Russian separatists as having been responsible for launching the missile. It will be crucial to establish the extent of Russia's involvement in the atrocity. While there seems to be evidence that the rebels may have taken possession of BUK units of the Ukrainian, it seems unlikely that they would have been able to operate these systems without assistance from Russian military experts and even radar assets. What has become clear already today is Russia's potential new role as state sponsor of terrorism.
Summary extracted by Aspals

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July Emerging Voices: Cyber Operations and the Prohibition of the Threat of Force by Francois Delerue Opinio Juris,
22 July 2014
Article 2(4) of the UN Charter was revolutionary in its extension to the explicit prohibition of the threat of force, alongside the prohibition of the use of force. No cyber operation has ever been qualified as a threat or use of force by any States or international organizations; commentators are more nuanced and some consider certain cyber operations as likely to qualify as actual uses of force (see generally: Tallinn Manual p. 45; Marco Roscini pp. 53-55; Duncan Hollis). Most of the literature applying Article 2(4) to cyber operations focuses on the use of force and, therefore, the threat of cyber force remains understudied. The International Court of Justice, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, confined the prohibition of the threat of force to the prohibition of the threat of the use of the prohibited force (para. 47). In other words, an unlawful threat is a conditional promise to resort to force in circumstances in which use of force would itself be unlawful. This form of threat of force is the most obvious one and can be implied directly from the wording of the UN Charter. Formulated by Ian Brownlie in 1963 (p. 364), this approach is nowadays the prevailing one on the threat of force. Applied to cyber operations, a threat of cyber force will violate the prohibition of Article 2(4) only if the threatened cyber force amounts to an unlawful use of force in the same circumstances. This is the contemporary leading approach among scholars and is, for instance, the approach followed by rule 12 of the Tallinn Manual: A cyber operation, or threatened cyber operation, constitutes an unlawful threat of force when the threatened action, if carried out, would be an unlawful use of force.
This is a stimulating article and worth reading on the interesting challenges presented by cyber operations.
Summary extracted by Aspals

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July Global Strategic Trends - Out to 2045 Ministry of Defence – Concepts and Doctrine Report,
5th Edition
This fifth edition of Global Strategic Trends (GST 5) aims to describe possible futures to provide a strategic context for policy- and decision-makers across Government. Thirteen broad thematic areas have been identified, with eight geographic regions and a section on space. Some trends (most notably those relating to economics, religion, technology and globalisation) are so important that they run through all of the subject areas, and are discussed as they arise rather than in their own sections, to bring them to life more clearly. In the process of identifying threats, challenges and defence and security implications for policy- and decision-makers, there may be a tendency for the document to seem rather negative in its outlook. This is an inevitable consequence of its purpose. There is of course scope for human ingenuity to have a significant impact on the future, and hence there are considerable grounds for optimism.
Summary extracted by Aspals

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11 July Unit Self-Defence Ian Henderson and Bryan Cavanagh Opinio Juris,
11 July 2014
The last of 4 articles in which the authors briefly discuss the concept of unit self-defence. Unit self-defence is a term used in rules of engagement (ROE) and can be defined as 'the right of unit commanders to defend their unit, or others units of their nation, and other specified units against hostile acts or hostile intent' (see the annex D of the San Remo ROE Handbook). In some militaries, along with being described as a right, it is also described as an obligation (see CJCSI 3131.01B, U.S Standing Rules of Engagement). In other words, a commander is positively required to act in unit self-defence and can be held accountable for not doing so.
Summary extracted by Aspals

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10 July Self-Defence — Weapons, Lawful Commands, Duty to Retreat and Summary Ian Henderson and Bryan Cavanagh Opinio Juris,
10 July 2014
The third of 4 articles that address the relationship between self-defence and LOAC. In this post we compare how LOAC and the law of self-defence deal with a number of discrete issues like use of prohibited weapons, obedience to lawful commands, and a 'duty' to retreat. It also provides a table which summarises the main points in the first three posts.
Summary extracted by Aspals

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9 July Self-Defence, Collateral Damage and Precautions in Attack Ian Henderson and Bryan Cavanagh Opinio Juris,
9 July 2014
This is the second in a series of four posts that address the relationship between self-defence and LOAC. Yesterday we looked at when self-defence does and does not apply during a period of armed conflict. Today we discuss whether it is lawful under the criminal law concept of self-defence to cause incidental injury (aka, collateral damage) and whether self-defence imposes requirements similar to the 'precautions in attack' under article 57of Additional Protocol I (API).
Summary extracted by Aspals

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8 July Henderson & Cavanagh on Self-Defense & The Privilege of Combatancy Jens David Ohlin Opinio Juris,
8 July 2014
Ian Henderson and Bryan Cavanagh have hit the nail on the head in identifying a crucial and under-theorized question that goes right to the basic structure of the laws of war. I am in complete agreement that invocations of self-defense during armed conflict are both confused and confusing. There is already the frequent problem of conflating individual self-defense (in the criminal law sense) with collective self-defense (jus ad bellum and article 51 of the UN Charter). In addition, one often hears talk of a soldier's right of self-defense – a claim that is mostly redundant since soldiers hold the privilege of combatancy and have no need to invoke a separate justification for their behavior. A justification like self-defense serves to negate the wrongdoing of the act, but a privileged soldier who kills a legitimate target has committed no wrongful act that requires negating. Consequently, the justification of self-defense is only relevant during armed conflict when the defender is unprivileged, such as a civilian who has no right to participate in armed conflict.
Summary extracted by Aspals

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8 July Military Members Claiming Self-Defence During Armed Conflict–Often Misguided and Unhelpful Ian Henderson and Bryan Cavanagh Opinio Juris,
8 July 2014
This is the first in a series of four posts in which the authors discuss their draft book chapter on how the concept of self-defence under criminal law operates in relation to military members during an armed conflict. In this post, they discuss the circumstances where self-defence does and does not apply during an armed conflict. This also entails discussing the combatant's privilege.
Summary extracted by Aspals

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July Military Justice—Proposals for a fair military justice system Sara Ogilvie and Emma Norton Liberty,
published in June 2014
Launched in July 2013, Military Justice is Liberty's campaign to protect and uphold the human rights of those serving in our armed forces. They believe that the rights of service men and women are just as deserving of protection as those of civilians and they have been campaigning for changes to the military justice system to make it fair for all service personnel. As part of the campaign they called for the creation of an Armed Forces Ombudsman. All credible justice systems are premised on independence, which is important for justice in individual cases, but it is also necessary to secure and strengthen public confidence in justice systems and institutions. Liberty recognises that military life is different. That is precisely why it is important to get this right. The report makes 6 recommendations:
1. Police forces should collect and publish annually anonymised statistics on the number of allegations of sexual assault and rape made by or against a member of the armed forces;
2. Schedule 2 of the AFA should be amended to include sexual assault, exposure and voyeurism;
3. The parties to Circular 028/2008 (MoU between ACPO and the MOD & Service Police) should amend the protocol by adding rape and sexual assault to the category of "Very Serious Crimes" which must always be investigated by local police;
4. Investigation of serious crimes committed abroad should be reflect the principle that an independent police force rather than the service police force should investigate them;
5. The three service police forces should be brought within the civilian system of police oversight; and
6. The service complaints ombudsman should be strengthened to give the ombudsman's office powers to investigate the merits of a complaint as well as claims of maladministration.
Summary by Aspals

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June Are Security Council acts relevant to the formation of Customary International Law? Kristen Boon Opinio Juris
Tuesday, June 27th, 2014
The Security Council's capacity to bind member states, and derivatively International Organizations, under Articles 25 and 48 is well established. Its ability to override inconsistent law under Article 103, and its demonstrated propensity to legislate in areas like anti-terrorism, and the many calls in the mid-2000s for Council power to be curbed through judicial review or other means, would lead one to expect at least consideration of the Council's role. It is noteworthy that in the Memorandum prepared by the Secretariat's on the same topic, the Security Council is mentioned twice in relation to non-recognition of acts in breach of peremptory norms (citing the ILC's commentary on State responsibility, which in turn cites Council resolutions on Iraq's invasion of Kuwait and the situation in Rhodesia.)
Summary by Aspals

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June Let's Call Killing al-Awlaki What It Still Is mdash; Murder Kevin Jon Heller Opinio Juris
Tuesday, June 24th, 2014
The US government has released the notorious memorandum in which the OLC provides the supposed legal justification for killing Anwar al–Awlaki, which failed to adequately address the most important issue regarding the "public authority justification," which is at the heart of the memo's conclusion that it would be lawful to kill al-Awlaki: how can the CIA be entitled to the public-authority justification when the CIA had no authority to use force against Al Qaeda in the Arabian Peninsula (AQAP)?    In short, the memo does a very poor job of arguing that the public-authority justification applies to the CIA as well as to the DoD. Both the text of the AUMF and the memo's own citations strongly suggest that the PAJ is limited to killings committed by the US's regular armed forces. Unfortunately for the government, that is not who killed al–Awlaki. The CIA did. So let's call killing al–Awlaki what it still is, even after the memo – murder.
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June Russia's 'spring' of 2014 Sascha-Dominik Bachmann OUPblog
Monday, June 9th
Russia's offensive policy of territorial annexation (of the Crimea), the threat of using military force and the actual support of separatist groups on the territory of Ukraine has left the West and NATO practically helpless to respond. NATO seems to be unwilling to agree on a more robust response, thus revealing a political division among its member states. This unwillingness can partly be explained with Europe's dependency on Russian gas supplies but also in the recognition of legal limitations and considerations, such as NATO's Article 5 (which only authorizes the use of collective self defence in cases of an attack on a NATO member state).
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June Missile Defence Shields: Automated and Anticipatory Self-Defence? Francis Grimal J Conflict Security Law (Summer 2014) 19 (2): 317-339
4th June
In response to the escalating rhetoric and bellicose actions emanating from the Korean peninsula in April 2013, the USA deployed Patriot Missile Systems at its overseas military bases in danger of being struck by a North Korean missile launch. Japan took similar precautionary measures. A more permanent fixture and fitting in terms of Missile Defence Systems (MDS) is Israel's Iron Dome Shield—designed to intercept rocket attacks by Hamas militants albeit more so for strategic benefit and less so for defending the civilian population. Both defence shields/systems, however, are designed for the same purpose—to intercept missile attacks during the 'free flight' phase (noting that this is specifically used in the 'Ballistic Missile Defence context'). This article examines whether use of missile defence shields help support the existence of a wider right of anticipatory self-defence. The article also addresses the point at which an 'automated' response takes place. Does such a response fall within the barometers of necessity and proportionality that govern a state's lawful recourse to self-defence under international law?
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May Libya's Transition: Towards Collapse Wolfram Lacher Stiftung Wissenschaft und Politik/German Institute for International and Security Affairs ,
25 May 2014
Escalating power struggles are driving Libya's transitional process towards collapse. Under the rallying cry of fighting terrorism, disparate political forces are seeking to suspend the transitional framework. They have no viable alternative to offer. External actors have insufficient influence to successfully mediate among the conflicting parties – but sufficient influence to complicate matters further. Western governments' ambiguous signals partly reflect a serious miscalculation: the expectation that the political forces supporting renegade general Khalifa Haftar can succeed in establishing a new transitional framework and stabilize the country.
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May Crimea and Ukraine 2014: A Brief Reflection on Russia's 'Protective Interventionism' Sascha-Dominik Bachmann Jurist,
22 May 2014
JURIST Guest Columnist Sascha-Dominik Bachmann of Bournemouth University in the United Kingdom argues that while their recent annexation of Crimea and apparent willingness to use military force in Eastern Ukraine, the prospect of a Ukrainian civil war has diminished the need for Russia to engage in an overt and open military intervention—at least for the time being—yet it remains to be seen if such will result in an end to the use of military force in the region.
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May Witness protection, political will vital for trying wartime rape-experts Katie Nguyen Thomson Reuters Foundation,
20 May 2014
From Congo to Kosovo, securing justice for victims of rape in war is fraught with difficulties and disappointment. As well as recognising and investigating sexual violence as an international crime on a par with war crimes and crimes against humanity, the draft International Protocol on the Investigation and Documentation of Sexual Violence in Conflict sets out to protect victims and witnesses of, and information on, sexual violence. Challenges for investigators of sexual violence in conflict include widespread insecurity in many of the areas where the crimes were taking place and a lack of resources – from transport to laboratory equipment.
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May Does IHL Provide a Legal Basis for Detention in Non-International Armed Conflicts? Lawrence Hill-Cawthorne & Dapo Akande EJIL Talk,
7 May 2014
Commenting on the Serdar Mohammed judgment, the authors argue argue that Mr Justice Leggatt correctly concluded that IHL does not contain a legal basis to detain in NIACs. However, their argument is not that detention in NIACs is necessarily unlawful. The argument is simply that authorization to detain in a NIAC cannot be found in IHL, but must rest elsewhere, principally in domestic law (either of the state that detains or of the state on whose territory the detention occurs). Exceptionally, the authorization to detain may arise out of other branches of international law, in particular, it may be contained in United Nations Security Council resolutions authorizing the use of force. In the particular context of the Sedar Mohammed case – and other detention in armed conflict cases brought under the European human rights system – the question is relevant in considering whether Art 5 ECHR might be regarded as inapplicable in NIACs by virtue of the argument that more specific rules of IHL apply to regulate those detentions.
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May Killer Robots: Natural Evolution, or Abomination? Erik Schechter Live Science,
18 March, 2014
Ask one technologist and he or she might say that lethal autonomous weapons mdash; machines that can select and destroy targets without human intervention mdash; are the next step in modern warfare, a natural evolution beyond today's remotely operated drones and unmanned ground vehicles. Others will decry such systems as an abomination and a threat to International Humanitarian Law (IHL), or the Law of Armed Conflict. The U.N. Human Rights Council has, for now, called for a moratorium on the development of killer robots. But activist groups like the International Committee for Robot Arms Control (ICRAC) want to see this class of weapon completely banned. The question is whether it is too early — or too late mdash; for a blanket prohibition. Indeed, depending how one defines "autonomy," such systems are already in use.
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May Detention in NIACs: A Pledge in Favour of the Application of IHL Ezequiel Heffes Opinio Juris,
17 May 2014
Recently, the High Court of England and Wales delivered a judgement in Serdar Mohammed v. Ministry of Defence [2014] holding, among other things , that the United Kingdom lacks detention authority under international humanitarian law (IHL) with regard to individuals it captures in the course of the non–international armed conflict (NIAC) in Afghanistan. In the present case, Justice Leggatt held that Common Article 3 (CA3) and/or Additional Protocol II (AP II) do not provide legal power to detain in the context of NIACs. The author offers four arguments to suggest that it would be simply counter–intuitive not to recognize that IHL already regulates detentions in NIACs, even though it seems to be explicitly silent on this question.
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May Jus Post Bellum Symposium: In Defense of a Central Role for Sovereignty in the Jus Post Bellum Conversation Dov Jacobs Opinio Juris,
9 May 2014
The author examines the debate about the relationship between jus post bellum and sovereignty. The starting point was the impression that sovereignty was often either forgotten or discarded to the periphery when discussing just post bellum issues. This was, on first analysis, intriguing because it is, or at least has been, one of the cornerstones of modern international law, and more generally, of international relations. There seems to be very little serious debate about sovereignty among a number of policymakers. This is possibly not that surprising in fact. "Sovereignty" is not a very popular term today in international law. It is considered to be an antiquated concept in our transnational and global world. More specifically, sovereignty is seen as an obstacle to the progressive spread of human rights. Sovereignty justifies claims by certain states that they are free to deal with « internal disturbances » and to reject any intervention (humanitarian or otherwise) in their domestic affairs. As a result, sovereignty is often presented as a problem, something to be fought and limited in order for more noble agendas to be realized.
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May No Legal Basis under IHL for Detention in Non-International Armed Conflicts? A Comment on Serdar Mohammed v. Ministry of Defence Kubo Mačák  Kubo Macak Blog of the European Journal of International Law, EJIL Talk!
5 May 2014
The author discusses the High Court ruling in the case of Serdar Mohammed and takes a closer look at one of the key issues in the judgment only. This is the question of lawfulness of detention of persons in non-international armed conflicts under international humanitarian law (IHL). He does not revisit the academic debate on this topic but rather subjects the specific reasons advanced by Mr Justice Leggatt to somewhat closer scrutiny. In his view there are strong considerations not reflected in the judgment, which militate in favour of the opposite view.
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May High Court Rules that the UK Lacks IHL Detention Authority in Afghanistan Marko Milanovic Blog of the European Journal of International Law,
3 May 2014
The author examines the recent ruling of the High Court in the case of Serdar Mohammed and extracts the principles established by the court. The shadow of Al Skeini hung over the judgment. This cases is not easy reading for those whose task it is to carry out detention operations in dangerous operational circumstances. The author points out that the judge has essentially ruled that the lex specialis of IHL is replaced by the ECHR in NIAC and the only way to avoid that would be to derogate from article 15 - although he doubts that even this would be possible in NIAC as NIACs contains no express detention authority, and cannot prevail over Article 5 ECHR as lex specialis. IHL does not specify grounds for detention or procedures to be followed, so there are no relevant rules of IHL with which to try to harmonise the interpretation of Article 5. The Court made it clear that the position the UK government found itself in was largely its own doing. The government's own legal advisers informed it of the limited extant legal authority for prolonged detention. The UK government failed to enact its own domestic legislation on detention in Afghanistan, or to come to different arrangements with Afghan authorities. Similarly, the UK government chose not to derogate from the Convention, preferring instead to argue that the Convention does not apply. What is clear is that the matter of operational detention of dangerous people - as was the point argued in the case - needs to be addressed urgently. Not being able to lawfully detain suspected terrorists and armed opposition fighters makes a dangerous situation even more so and places the lives of our forces in grave danger. The judgment affirms concerns of legal commentators in recent submissions to the House of Commons Defence Committee.
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28 April Challenges of monitoring, reporting, and fact-finding during and after armed conflict Professionals in Humanitarian Assistance and Protection
28 April, 2014
Responding effectively to human rights violations and humanitarian crises resulting from armed conflict requires accurate and credible factual information and analysis. Thorough and impartial monitoring, reporting, and fact-finding (MRF) is essential to achieving this. Challenges inherent to investigations of alleged violations of international law in non-conflict situations are multiplied when investigating possible war crimes, crimes against humanity, and other violations of international humanitarian and human rights law in the context of armed conflicts – be they international or non-international. Some of the challenges may be situation-specific, others recurring in several different conflict situations. Access to relevant areas during the conduct of hostilities may be restricted or outright impossible, and often extremely dangerous when possible. Evidence may be rapidly removed, destroyed, or contaminated – whether intentionally or not. "Bad" evidence can be worse than no evidence, as it can lead to wrong assumptions or conclusions.
A "must read" for those who are interested how the truth can be unscrupulously manipulated in conflict to sway public opinion. Ms Rovera was author of the Amnesty Report, "Deadly Reprisals" which she re-visits in this blog.
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22 April Crimea: Does "The West" Now Pay the Price for Kosovo? Anne Peters EJIL Talk!
22 April, 2014
There is a lingering sentiment that "the Kosovo issue" has facilitated the blatant violations of international law recently committed by Russia with regard to Crimea (notably the unlawful annexation of that territory), and that "the West's" behaviour in the Kosovo context now prevents clear condemnations and robust reactions towards these violations. That view has also been espoused elsewhere. The basic idea is that "the West" now pays the price for Kosovo, and that such a situation was predictable (and has been predicted) by those who now deplore it, and allows them to think (or even to say): "Well, we warned you from the beginning on, and this is now what comes out of it … so we were right". In this post, the author investigates the soundness of this position.
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3 April 69th Session of the Working Group on Arbitrary Detention UNITED NATIONS HUMAN RIGHTS COUNCIL: International Commission Of Jurists Report  (see also [Global Military Justice Reform]
3 April 2014
The right to challenge detention before a court primarily contemplates recourse to the ordinary civilian courts. If a state chooses to provide military courts with some role in proceedings for challenging deprivation of liberty, it must not displace the existing role of the ordinary civilian courts, and the military courts' role should be strictly limited to proceedings against members of the military forces charged with breaches of internal rules of military discipline. Anyone deprived of liberty on any grounds and in any context must have access to an independent, impartial and competent court of law for the purposes of challenging the lawfulness of detention. It is not sufficient that some other type of authority, be it judicial, quasi-judicial, or administrative, can review the detention and compel release. The court must satisfy essential requirements competence, impartiality, independence, and its processes must include and respect fundamental procedural safeguards. The right to effective judicial oversight over any form of detention under article 9(3) and (4) of the ICCPR must be read together with article 14(1) of the ICCPR, which guarantees that: "In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law". This requirement applies to criminal and non-criminal proceedings alike. The Human Rights Committee describes the notion of a 'tribunal' as "a body, regardless of its denomination, that is established by law, is independent of the executive and the legislative branches of government or enjoys in specific cases judicial independence in deciding legal matters in proceedings that are judicial in nature". 6 key issues are identified as relevant to the question of their potential use to determine the legality of detention. (Acknowledgment to the excellent Global Military Justice Reform Blog).
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April On Power And Norms Libya, Syria, And The Responsibility To Protect Nathalie Tocci Transatlantic Academy, 2013-2014 Paper Series No. 2
April 2014
Viewed from a normative standpoint, the Libyan and Syrian conflicts may be read as the moment of inflection in the liberal normative order pioneered and diffused by the "West," with the traditional recalcitrance of the "Rest" now becoming normatively consequential. The Libya intervention is the final flames of a liberal Western order; the Syrian conflict is the incipient signs of a post-liberal polycentric world. And yet the BRICS (Brazil, Russia, India, China, and South Africa) all endorsed, in different shades, the imperative of stopping the bloodshed and protecting civilians in both Libya and Syria. Furthermore, within Europe and the United States too, there has been no consensus on intervention in Syria. What thus do the stories of Libya and Syria tell us about normative evolution at the global level when it comes to key notions like civilian protection, intervention, and state sovereignty? At face value, the Libyan and Syrian crises suggest a tipping of the scales in the international system from the "West" to the "Rest." However, this paper argues that a situated and multifaceted analysis of power reveals that Western and BRICS countries alike played crucial roles in determining the overall international responses to both crises. In doing so, all major international actors involved contributed to the ongoing global normative conversation about when and how to respond to mass atrocities, with likely long-term implications for the responsibility to protect.
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April Intervention: Why,When and How? House of Commons Defence Committee Fourteenth Report of Session 2013–14,8th April, Volume I: Report
Written evidence is contained in Volume II - Evidence
8 April 2014
The MoD defined intervention "as the projection of military force (augmented by other agencies as required) outside UK sovereign territory to achieve an effect in securing, protecting or promoting UK national interests through the use or threat of force". However this definition seems very narrow, as it takes minimal account of the UK's wider responsibilities as a UN Security Council member or as a member of NATO or other alliances where national interests might have to be balanced by wider global responsibilities. The Committee also noted that several witnesses referred to humanitarian intervention which did not appear to fit within the Government's definition. The Committee called on the Government to develop definitions of the terms "intervention" and "humanitarian intervention" which can be used across Government Departments and be included in the next iterations of the National Security Strategy and the Defence and Security Review. The Committee remained concerned about the lack of realism in the Government's assertion that there will be no shrinkage of UK influence when resources are still being reduced.
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April The Red Line and the Rat Line Seymour Hersh London Review of Books
6 April 2014
Investigative journalist Seymour Hersh has a second fascinating essay that rewrites the official record of the sarin gas attack on Ghouta, near Damascus, in August 2013. As usual, Hersh uses his sources in the US security establishment to throw light on what really took place. The bottom line: Turkey was almost certainly the party responsible for the attack, hoping it would force Obama to honour his threatened "red line" if Assad used chemical weapons. Were the Assad regime to be brought down by a US military campaign, Turkey assumed it would be able to turn Syria into a client state.
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April UK Armed Forces: Legal framework for future operations House of Commons Defence Select Committee Report
2 April 2014
Full Version with Evidence
Extensive legal review and challenge of combat decisions undermines the willingness of commanders to take necessary risks and may cause greater bloodshed, say Defence Committee, in its Twelfth Report of Session 2013-14 published 2 April 2014. The fear that legitimate combat decisions may be exposed to extensive and retrospective legal review and challenge not just scrutiny is having a detrimental effect on leadership in HM Forces, say the Defence Select Committee in their report into the legal framework for future operations. UK military personnel as individuals are properly subject to UK and international law wherever they serve and there are processes to ensure scrutiny of their individual behaviour and legal compliance but, in the last ten years, legal judgments in the UK and elsewhere against the MoD have raised a number of legal, ethical and practical questions for the Armed Forces and their conduct of operations. The growing number of such challenges is leading to a feeling of disquiet amongst military personnel and informed commentators about the extent and scale of judicial involvement in military matters. Chairman of the Committee, RT Hon James Arbuthnot, said, "This conflict between the Law of Armed Conflict and Human Rights Law could actually lead to greater bloodshed. A risk-averse commander, reluctant to send troops forward, may increasingly turn to using indirect support such as air strikes with greater consequent violence against the opposition and potentially more civilian deaths. Unless Government policy, military doctrine and legal principles are clarified, then uncertainty for military personnel and claimants will continue to grow. For these reasons, we are convinced that the Government now needs to address these issues strategically rather than reacting on a case by case basis."
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20 March Crimea's Referendum and Secession: Why it Resembles Northern Cyprus More than Kosovo By Jure Vidmar Blog of the European Journal of International Law
Groups seeking independence usually present self-determination as an absolute entitlement. Conversely, states countering secession usually present territorial integrity as an absolute entitlement of states. Neither camp is right. As follows from the General Assembly's Declaration on Principles of International Law (GA Res 2625), the Quebec case (Supreme Court of Canada) and partly also from the Kosovo Advisory Opinion (ICJ), international law is actually neutral on the question of unilateral secession. This means that unilateral secession is neither prohibited nor an entitlement. Furthermore, for the purposes of international law, it does not matter whether or not secession is explicitly prohibited under domestic law. As noted by the Supreme Court of Canada in the Quebec case, an entity may declare independence extra-constitutionally and yet nevertheless become independent if other states are willing to recognise it (the Quebec case, para 155). This further confirms that unilateral secession unto itself does not trigger an obligation to withhold recognition. Yet states are very rarely willing to grant recognition on a widespread basis to entities seeking independence unilaterally. By holding a referendum and declaring independence, such an entity in most circumstances does something that remains legally ineffective, yet not internationally wrongful. The burden of changing the territorial status quo lies on the secession-seeking entity and this exercise is very rarely successful if the parent state does not agree. However, a declaration of independence may be given effectiveness through foreign military assistance. This is where neutrality of international law ends. International law is neutral only with respect to a declaration's unilateral character, but not in general, where territorial illegality is attached to the situation.
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March Terrorism and Cyber Attacks as Hybrid Threats: Defining a Comprehensive Approach for Countering 21st Century Threats to Global Peace and Security By Dr. Sascha-Dominik Bachmann and Dr. Hakan Gunneriusson The Journal on Terrorism and Security Analysis
Spring 2014, 9th Edition, at pp 26 – 36

March 18, 2014
Multimodal, kinetic and non-kinetic threats to international peace and security, including cyber-attacks, low intensity asymmetric conflict scenarios, global terrorism, piracy, transnational organized crime, resources security, retrenchment from globalization and the proliferation of weapons of mass destruction, were identified by NATO as 'hybrid threats,' which state actors are ill-equipped to handle. This interdisciplinary article predicts that military doctrines, traditional concepts of war and peace, and legal perceptions will be challenged by the nature of these threats. This article consists of three parts: First, it introduces the notion of 'hybrid threats' as a new threat definition and its (at least temporary) inclusion in NATO's new comprehensive defense approach with a reflection on the use of cyber capabilities. Second, inclusion is highlighted at the multinational level through case study examples of NATO and UN initiatives and inclusion is examined at the state level through a case study of the Swedish National Defense College. Third, it addresses potential implications for military doctrine arising from hybrid threats and the associated legal consequences. The article concludes with a brief outlook on the new dimensions of possible future threats to peace and security as challenges to our present concept of war and peace, and then reflects on possible responses.
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March Deployed Operations and the European Convention on Human Rights: 'Because It's Judgment that Defeats Us' Dr Aurel Sari SSRN
March 18, 2014
Although few would challenge the idea that Britain's armed forces should abide by the rule of law, concerns have been expressed for a number of years that legal constraints are diminishing the freedom of action of the British military to an ever greater extent and are thereby undercutting its operational effectiveness on the battlefield. The subject has attracted renewed attention, including in the House of Lords, following the publication of 'The Fog of Law' report by the Policy Exchange in October 2013. The report offers one of the most detailed assessments of the threat posed by the 'legal encirclement' of the British armed forces and must be commended for re-invigorating the debate on this subject. Notwithstanding these achievements, 'The Fog of Law' is first and foremost a policy paper and as such lacks nuance in places. Regrettably, it runs the risk of perpetuating certain misconceptions about the applicable law and may present policy makers with false strategic choices.
The legal framework governing the conduct of British armed forces in deployed operations is complex. Despite what 'The Fog of Law' seems to suggest, there is no easy solution to safeguard the operational effectiveness of the British military from legal constraints in such circumstances. Rather than hoping for a quick fix, this paper argues that what is required is a concerted effort to maintain an appropriate balance between the competing considerations involved. The argument for special treatment of the armed forces will not be won if it does not demonstrate convincingly why such special treatment is in fact necessary. To this end, we need a better understanding of what constraints the law actually imposes on the armed forces and of the means and methods available to reduce any adverse effects on their operational effectiveness to an acceptable level. In addition, we may need a more strategic approach to lawyering than is currently the case.
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March Prosecutor v. Taylor: The Implications for Bashar Al-Assad Steven J. Rose Boston College International and Comparative Law Review
B.C. Int'l & Comp. L. Rev. 90 (2014)
Charles Taylor was the first sitting head of state to be indicted, tried, and convicted by an international criminal tribunal, the Special Court for Sierra Leone. This comment explores the procedural and structural similarities between the Special Court for Sierra Leone and the International Criminal Court. This comment then compares the evidence used to convict Charles Taylor and the evidence currently available about possible war crimes and crimes against humanity ongoing in Syria. Finally, this comment argues that Bashar al-Assad should be tried before the International Criminal Court, and that the Taylor case can be used as a template, due to the similarities between the courts and the evidence in each situation.
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March Autonomous Weapons at Chatham House: It's Bentham versus Kant Charles Blanchard Opinio Juris
March 5th, 2014
In the past year, proposals for an autonomous weapons ban have gone from a fringe notion to an agenda item for the Convention on Conventional Weapons this year. The author joined a diverse group at a Chatham House conference to discuss the issue. The participants included advocates of a ban, technologists on both sides of the issue, government officials, and Law of War experts. The conference was surprisingly useful in illuminating lots of common ground, and more importantly it illuminated the different philosophical differences between proponents and skeptics of a ban. The author summarises the key points of discussion.
There is a very powerful comment by Mark Avrum Gubrud, who argues that "Principles of humanity are the strongest foundation for a ban on killer robots, but the most compelling reason why we need one is to avoid another race to oblivion, this time with any number of nations getting in on the game."
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March Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (Final Report) Ben Emmerson QC Human Rights Council
28 February 2014
This is the third annual report submitted to the Human Rights Council by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson. In chapter II of the report, the Special Rapporteur lists his key activities undertaken from 10 January to 16 December 2013. In the main report, contained in chapter III, the Special Rapporteur examines the use of remotely piloted aircraft, or drones, in extraterritorial lethal counter-terrorism operations, including in the context of asymmetrical armed conflict, and allegations that the increasing use of remotely piloted aircraft, or drones, has caused disproportionate civilian casualties, and makes recommendations to States. This report constitutes the continuation of the Special Rapporteur's interim report on the use of drones to the General Assembly. Mr Emmerson examines 37 strikes in which civilian casualties were reportedly sustained through drone strikes. (A/68/389).
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February The incompatibility of amnesty laws with international human rights treaties -- Argentina Cristina Cerna Global Military Justice Reform
11th February, 2014
In 2001, the Inter-American Court of Human Rights, in the Barrios Altos v. Peru case, for the first time held that amnesty laws were incompatible with a state's obligation to investigate, prosecute and punish those responsible for serious human rights violations. The author examines a number of cases where the courts reassessed the "Impunity Laws" and their constitutional legitimacy. What consequences are there for other amnesty agreements made eg in Northern Ireland, where terrorists are released from prison? Is this another example of a noble set of principles actually impeding political peace processes/reconciliation? Or is there a distinction between those cases where individuals have been tried, convicted, sentenced and then granted amnesty, and those who are granted a general amnesty without trial? What impact would this have had on the Truth and Reconciliation Commission in South Africa, which was empowered to grant amnesty to those who committed abuses during the apartheid era, as long as the crimes were politically motivated, proportionate, and there was full disclosure by the person seeking amnesty?
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February Consistency of Jurisprudence, Finality of Acquittals, and Ne Bis In Idem - Comments on the Šainovic et al. appeal judgment and the OTP motion for reconsideration of the Perišic appeal judgment Sergey Vasiliev Centre for International Criminal Justice
5th February, 2014
On 3 February 2014, the ICTY OTP filed with the Appeals Chamber a motion for reconsideration of the Perišic appeal judgment that had been issued less than a year earlier. This is the first such request by the prosecution in two decades of the ICTY's eventful history (leaving aside the Blaškic request for review or reconsideration, in the alternative). His acquittal revolved around the difference between the AC and the TC on the question of whether remote/neutral assistance should be 'specifically directed' to the commission of crimes to warrant conviction for aiding and abetting. This has been debated extensively in academia ever since. Yet, on 23 January 2014, 'the Appeals Chamber struck again' (the phrase seems even more fitting than in the original context). On that day, the differently constituted appellate bench shot down the 'specific direction' requirement in its Šainovic et al. judgment.
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February Response to comments on "A New International Human Rights Court for West Africa" Karen Alter, Larry Helfer and Jacqueline McAllister Opinio Juris
5th February, 2014
An analysis of this new judicial institution which examines some key aspects of its jurisdiction, exploring why the ECOWAS Court lacks an exhaustion of domestic remedies rule; whether the court reform campaigns by civil society and ECOWAS judges succeed because they channeled the member states' desires; why was private litigant access denied for economic cases; does external funding explain the decision to grant a human rights jurisdiction to the ECOWAS Court? Was it due to a lack of mobilization? How important was the Secretariat in securing and sustaining the ECOWAS Court's human rights jurisdiction? and what were the necessary and sufficient conditions that led to the ECOWAS Court's human rights jurisdiction?
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February Talk About the Imperial Presidency! Kevin Jon Heller Opinio Juris
31st January, 2014
A short analysis of the presidential memorandum purporting to provide exemption from prosecution before the ICC of members of the American armed forces on the UN mission in Mali. The author does not agree that such an exemption exists to exempt jurisdiction.
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February Presidential Memorandum -- Certification Concerning U.S. Participation in the United Nations Multidimensional Integrated Stabilization Mission in Mali President Barack Obama White House
31st January, 2014
Certification Concerning U.S. Participation in the United Nations Multidimensional Integrated Stabilization Mission in Mali Consistent with Section 2005 of the American Servicemembers' Protection Act, providing for exemption from the jurisdiction of the International Criminal Court.
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29 January Jus ad bellum and American Targeted Use of Force to Fight Terrorism Around the World Anders Henriksen Journal of Conflict & Security Law (2014)
Vol. 19 No. 2, 211–250
In recent years the operations comply with jus ad bellum. The first part of the article summarizes the status of the relevant legal principles and concludes that the right to self-defence has undergone substantial changes since the attacks on 9/11. The second part analyses if the American operations comply with the legal framework just presented and conclude that the majority of the operations appear to be based on local consent and therefore comply with the jus ad bellum. The operations may also be lawful if they comply with a right to self-defence, but it is submitted that the attacks on 11 September 2001 can no longer serve as a basis for an American right to self defence. To justify its operations as self-defence, the USA must therefore point to other armed attacks. It must also show that the local authorities are unwilling or unable to stop the attacks from their territories. It is concluded that the attacks on American personnel in Afghanistan by groups in the tribal areas of Pakistan constitute an armed attack on the USA, and that the Americans were also the victim of a 2010 armed attack from AQAP in Yemen. The USA has not, however, suffered an armed attack from the hands of al Shabaab in Somalia or from anyone in Libya that can justify the capture of a Libyan citizen in October 2013.
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January Can the ICC investigate UK higher echelons' command responsibility for torture committed by the armed forces against Iraqi detainees? Chantal Meloni Opinio Juris
20th January, 2014
A new complaint (technically a Communication under art. 15 of the Rome Statute) has been lodged on the 10th of January to the Intentional Criminal Court, requesting the Prosecutor to open an investigation into the denounced abuses committed by UK military forces against Iraqi detainees from 2003 to 2008. The complaint has been presented by the British Public Interest Lawyers (PIL), representing more than 400 Iraqi victims, jointly with the Berlin-based European Centre for Constitutional and Human Rights (ECCHR). The lawyers' allegation is that grave mistreatments, including torture and other degrading abuse techniques, were commonly used during the six years in which the UK and Multinational Forces operated in Iraq. According to the victims' account the mistreatment was so serious, widespread and spanned across all stages of detention as to amount to "systemic torture". Out of hundreds of allegations, the lawyers focused in particular and in depth on eighty-five cases to represent the mistreatment and abuses inflicted, which would clearly amount to war crimes. It remains to be seen what the ICC prosecutor decides.
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January Iraq: "Devastating" Dossier Alleging British War Crimes Lodged with the International Criminal Court. Felicity Arbuthnot Global Research
12th January, 2014
A "devastating" two hundred and fifty page document: "The Responsibility of UK Officials for War Crimes Involving Systematic Detainee Abuse in Iraq from 2003-2008", has been "presented to the International Criminal Court, and could result in some of Britain's leading defence figures facing prosecution for "systematic" war crimes" the (London) Independent on Sunday has revealed. The dossier charges that: ' "those who bear the greatest responsibility" for alleged war crimes "include individuals at the highest levels" of the British Army and political system.'
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