Aspals Reading List 2016

Military Legal Publications

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Date Title Author Reference
December Lawfare in Hybrid Wars: The 21st Century Warfare Andres B. Munoz Mosquera and Sascha Dov Bachmann Journal of International Humanitarian Legal Studies,
, Volume 7
Also on Academia
In the context of 'Hybrid Warfare' as 21st Century's threat to peace and security, this paper intends to address the role of Lawfare. The use of law as a weapon, Lawfare,1can have a tangible impact on democratic States when their adversaries use it in an exploitative way. Lawfare can be used in the context of Hybrid War.2 Examples of Hybrid Warfare as witnessed in the Russian/Ukrainian conflict of 2014/2015 and the ongoing conflict with Daesh are particularly sensitive to Lawfare due to an apparent asymmetric adherence to the international rule of law among involved actors. The different legal and ethical approach of democratic States in warfare and their non-democratic opponents in Hybrid War scenarios has the potential to impact negatively on the eventual prompt success of Western military actions. The authors argue that against this backdrop it is essential for law-abiding nations to adapt an approach which uses counter-Lawfare means in support of its own legitimate objectives and to prevent opponents from using it law as a weapon for their own strategic purposes.
Summary extracted by Aspals

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December Report On The Legal And Policy Frameworks Guiding The United States' Use Of Military Force And Related National Security Operations President Barack Obama Just Security,
December 2016
This report describes, among other things, how the Obama Administration has ensured that its uses of force overseas are supported by a solid domestic law framework and consistent with an international legal framework predicated on the concepts of sovereignty and self-defense embedded in the United Nations Charter. And it describes how the United States has applied rules, practices, and policies long used in traditional warfare to this new type of conflict. In addition, the report recounts actions the Administration has taken to institutionalize a policy framework to ensure that, in carrying out certain critical operations, the United States not only meets but also in important respects exceeds the safeguards that apply as a matter of law in the course of an armed conflict — particularly in the areas of the preservation of civilian life, transparency, and accountability. For, to say that a military tactic is legal, or effective, is not to say that it is wise or moral in every instance.
Summary extracted by Aspals

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December Russia's Lawfare in the Arctic Dr Sascha-Dominik Bachmann and AB Munoz Mosquera The Operational Law Quaterly,
15 December 2016
Volume 17-1
Since 2009 the fast melting of ice in the High North is evident. The Arctic region has been an object of desire for coastal and non-coastal states and, as a consequence, the region is subject to a latent or dormant conflict. Like in Ukraine, and pre and post-Crimea, where Russia used Lawfare extensively, and in its different approaches in order to create an ex novo and Russian-centred legal framework to justify its illegal actions, it appears that the same is happening or about to happen in the High North. This paper highlights the precarious and fragmented Arctic legal architecture, which gives opportunities to Russia to adapt the successful Hadesian Lawfare pattern as applied in Crimea (and to a certain extent in Syria) for its Arctic ambitions.
Summary by Aspals

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December Syria – A Legacy of Failed Foreign Policy Anthony Paphiti SSRN,
October 10, 2016
War in Syria has been raging for more than five years. A popular uprising in March 2011 was hijacked by extremist elements and turned into a non-international armed conflict of savage proportions. This, in turn, has drawn in a number of countries to support one side or the other. Principally, it is Russian and Iranian forces, along with Hezbollah fighters, who support the government. In the case of those opposing the government, there are many different factions, most of which at this stage of the conflict are hardline extremists, such as Islamic State, which has captured (and has since been losing) large tracts of Syrian territory in its mission to set up an authoritarian world caliphate under Sharia law, and the al-Qaeda-affiliated terrorist group al-Nusra Front (re-branded as Jabhat Fateh al-Sham) whose vision of victory is a similar anti-Western society governed by Sharia law, where freedom of speech, freedom of religion and women's rights are severely curtailed. Numerous other factions, including the so-called Free Syrian Army, fight under the banner of more extremist groups, like Nusra.
A third distinct group is the Kurds, the largest ethnic minority in the country, who are fiercely anti-IS and anti-Turkish, and who hope to carve out their own autonomous region in Syria. Supporters of these groups, in varying degrees, are to be found among the United States, the United Kingdom, Turkey, Saudi Arabia and Qatar.
The lawfulness of outside intervention and the reliance on justifications such as "unwilling or unable" to mask a "might is right" foreign policy pose challenges to world peace and undermine the concept of the Responsibility to Protect. Nations often feel compelled to act by a "moral imperative", which in turn may have been aggravated by the media in its own particular coverage of a crisis and the emphasis it gives in its reporting. The use of deception, through misinformation, disinformation and propaganda makes it difficult for the public to know where the truth lies. As the saying goes, the first casualty of war is the truth.
This paper examines these and other questions in the context of the war in Syria and what the future holds for that country.
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December International Humanitarian Law: A Comprehensive Introduction International Committee of the Red Cross ICRC Shop [Free Download],
December 2016
"International Humanitarian Law: A Comprehensive Introduction" is an introductory handbook that aims to promote and strengthen knowledge of international humanitarian law (IHL) among academics, weapon-bearers, humanitarian workers and media professionals. It presents contemporary issues related to IHL in an accessible and practical style, and in line with the ICRC's reading of the law. That, plus its distinctive format – combining "In a nutshell", "To go further" and thematic textboxes – make it the ideal everyday companion for anyone approaching IHL for the first time and curious about conflict-related matters, as well as for military and humanitarian personnel seeking useful guidance on a vast array of topics.
Summary by Authors

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November International Law and Stability in Cyberspace Brian Egan Just Security,
10 November 2016
The remarkable reach of the Internet and the ever-growing number of connections between computers and other networked devices are delivering significant economic, social, and political benefits to individuals and societies around the world. In addition, an increasing number of States and non-State actors are developing the operational capability and capacity to pursue their objectives through cyberspace. Unfortunately, a number of those actors are employing their capabilities to conduct malicious cyber activities that cause effects in other States' territories. In light of this, it is reasonable to ask: could we someday reach a tipping point where the risks of connectivity outweigh the benefits we reap from cyberspace? And how can we prevent cyberspace from becoming a source of instability that could lead to inter-State conflict?
Summary extracted by Aspals

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October Understanding Lawfare in a Hybrid Warfare Context Andres B Munoz Mosquera and Sascha-Dominik Bachmann NATO Legal Gazette,
October 2016
The use of Law as a weapon, Lawfare, is one of many tools used by human beings in their interactions. The current holistic nature of the physical and virtual battlespace favors the inclusion of law in that battlespace, which becomes one of the war protagonists by its own merits. Law has its own place among the instruments of power: Diplomatic, Informational, Military, Economic, Financial, Intelligence and Law. While we are familiar with the first four in an operational environment, the last three are new in the comprehensive approach battlespaces where the classical interstate warfare has given way to intrastate warfare in an asymmetrical and/or hybrid manner, which is now the untamable rule. Battlespace today can be a muddy field close to Aleppo as much as a carpeted corridor at 8 Paradeplatz in Zürich, Switzerland, the fiber-optic cabling in one of the NATO Cooperative Cyber Defence Centre of Excellence servers in Tallinn, Estonia, or at the meeting room of Wachtell, Lipton, Rosen & Katz in New York. Law is now moving from the second row to the first, not only during conflict, but also in non-defined situations. Law in the battlefield is definitely an instrument of power unique for law-abiding and non-law-abiding actors. It is not true that law as a weapon is used more by law-oriented societies. Actually, these societies absorb badly law attacks, because they understand the use of law affirmatively and not negatively. This perversion creates dysfunctional responses and confusion in both decision-makers and ordinary tax-payers or law-abiding actors.
Summary extracted by Aspals

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October Second Thoughts on First Strikes: A Reply to Heller Adil Ahmad Haque Opinio Juris,
25 November 2016
Professor Haque replies to Professor Heller's views. This is one of the most interesting discussions of recent times, on a subject of some current (and future) relevance. In the author's view, a military operation by State armed forces that meets with no armed response and may never be repeated is not a "sporadic act of violence" within the meaning of Additional Protocol II 1(2). On this point, he follows the ICRC Commentary to APII, which negatively defines "isolated and sporadic acts of violence, as opposed to military operations carried out by armed forces or armed groups." APII 1(2) describes disturbances and tensions created by disorganized or unarmed groups, criminal gangs, and individuals. APII 1(2) does not describe "acts of violence against the adversary in offence or defence" (that is, attacks as defined by API). He argues, APII 1(1) requires that a group has the ability to carry out sustained and concerted military operations, not that the group has already carried out such operations. In other words, this clause bears on the organization criterion, not on the intensity criterion. APII 1(1) expressly states that APII applies only to armed conflicts between State armed forces and organized armed groups that possess responsible command, territorial control, and the ability to carry out sustained and concerted military operations as well as to implement APII. While the terms of APII's organization requirement should be interpreted in light of APII's object and purpose, they cannot be ignored. [Ed: what impact would this approach have had on the UK government's fight against the IRA terrorists in Northern Ireland?].
For the full list of exchanges, readers should consult Just Security (and Professor Haque's article referred to below) and Opinio Juris.
Summary extracted by Aspals

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October First Strikes & NIAC: Thoughts on the Haque/Horowitz Debate Kevin Jon Heller Opinio Juris,
24 November 2016
This is an interesting rejoinder by Professor Heller to the latest contribution to the debate over whether the existence of a non-international conflict (NIAC) exists the moment a state launches a "first strike" at an organized armed group or whether hostilities of a certain intensity between the two are required. Professor Heller relies on the Tadic test, which requires both organization on the part of the armed group and adequately intense hostilities, which has overwhelming support from states. After all, the test is based squarely on Art. 1(2) of Additional Protocol II, ratified by 168 states, which provides that the "Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts." And, of course, as the ICRC notes in its new commentary on the First Geneva Convention, the AP II standard is used by a number of more recent conventions that apply to all NIACs — Common Article 3 or AP II — such as the Rome Statute (1998), the Second Protocol to the Hague Convention for the Protection of Cultural Property (1999), and the Convention on Certain Conventional Weapons (2001).
For the full list of exchanges, readers should consult Just Security (and Professor Haque's article referred to below) and Opinio Juris.
Summary extracted by Aspals

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October When Does the Use of Force Against a Non-State Armed Group trigger an International Armed Conflict and Why does this Matter? Dapo Akande EJIL: Talk,
18 October 2016
The ICRC, in its commentary to Common Article 2 dealing with international armed conflicts (one between the High Contracting Parties to the GCs), states that where a state uses force against a non-state group on the territory of another state without the consent of the territorial state it would amount to an international armed conflict between the intervening state and the territorial state. The author is a supporter of the position that the ICRC has now come to as, in his view, an international armed conflict is a conflict between states, and a conflict arises between states when one state uses force against another state, in that the force is used on the territory of the other state without its consent. The author sets out a few reasons why it might make a difference whether a state using force on the territory of another without the consent of the other is involved in an IAC (in addition to a NIAC, if one already exists).
Summary by Aspals

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October Who is on Board with "Unwilling or Unable"? Elena Chachko, Ashley Deeks Lawfare,
10 October 2016
A growing number of States believe that use of force in self-defense against a non-state actor on the territory of a third State, without the consent of that third State, may be lawful under international law if the non-state actor has undertaken an armed attack against the State and the third State is itself unwilling or unable to address the threat posed by the non-state actor. The content of the "unwilling or unable" test, its pedigree, and whether it has become a part of customary international law have been widely debated among international law scholars and practitioners. Some States have not been consistent in their positions, invoking the "unwilling or unable" test in their own defense in one incident only to criticize other States for relying on it in others.
Summary extracted by Aspals

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October The NIAC Threshold Deborah Pearlstein Opinio Juris,
4 October 2016
The author writes a response to the article by Adil Haque on "Triggers and Thresholds of Non-International Armed Conflict", which challenges his view of how to determine when armed violence crosses the threshold from ordinary criminality or the like to non-international armed conflict (NIAC), such that the law of armed conflict applies. Her challenge is on three grounds:
  1. The need for a "bilateral trigger";
  2. Cross-border incursion of rebel groups/fighters; and
  3. Accepting accept the same "nominal intensity threshold" for NIACs as is currently required for IACs
A very useful contribution to the debate on this highly relevant subject.
Summary by Aspals

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September Military Justice - A Very Short Introduction Eugene R. Fidell Oxford University Press,
September 2016
"You can't handle the truth." These iconic words, bellowed by Jack Nicholson as Colonel Jessup in the 1992 movie A Few Good Men, became an emblem of the conflict between honor and truth that the collective imagination often considers the quintessence of military justice. The military is the rare part of contemporary society that enjoys the privilege of policing its own members' behavior, with special courts and a separate body of rules. Whether one is for or against this system, military trials are fascinating and little understood. This book opens a window on the military judicial system, offering an accessible and balanced assessment of the strengths and weaknesses of military legal regimes around the world. It illuminates US military justice through a comparison with civilian and foreign models for the administration of justice, with a particular emphasis on the UK and Canadian military justice systems. Drawing on his experience as a serving officer, private practitioner, and law professor, Eugene R. Fidell presents a hard-hitting tour of the field, exploring military justice trends across different countries and compliance (or lack thereof) with contemporary human rights standards. He digs into critical issues such as the response to sexual assault in the armed forces, the challenges of protecting judicial independence, and the effect of social media and modern technology on age-old traditions of military discipline. A rich series of case studies, ranging from examples of misconduct, such as the devastating Abu Ghraib photos, to political tangles, such as the Guantanamo military commissions, throw light on the high profile and occasionally obscure circumstances that emerge from today's military operations around the world. As Fidell's account shows, by understanding the mechanism of military justice we can better comprehend the political values of a country.
Summary by Publishers

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September The UK's Al-Saadoon Case: Stepping Back From the Extraterritorial Application of the ECHR Arising From the use of Physical Force alone David Goddard Just Security ,
30 September 2016
On September 9, the United Kingdom's Court of Appeal delivered its judgment in Al-Saadoon and Others v. Secretary of State for Defence. This is a case dealing with almost 1,300 outstanding public law claims arising from activities of the UK's armed forces in Iraq following the 2003 invasion. Importantly, the judgment reverses the earlier decision of the High Court that the United Kingdom's obligations under the European Convention on Human Rights (ECHR) can be activated extraterritorially simply through the use of physical force against an individual by State agents. Very helpful analysis and discussion.
Summary extracted by Aspals

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September Triggers and Thresholds of Non-International Armed Conflict Adil Ahmad Haque Just Security ,
29 September 2016
When and where does the law of non-international armed conflict apply? Since most contemporary armed conflicts are fought between states and organized armed groups, or between such groups, these are important questions for both international lawyers and policy makers. The answers may affect the jurisdiction of U.S. military commissions, the detention of Taliban commanders and ISIL members, legal constraints on Saudi-led military operations in Yemen, and accountability for war crimes in Syria.
Summary extracted by Aspals

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September Daedalus or Icarus? Footprints of International Criminal Justice Over a Quarter of a Century Carsten Stahn Available at SSRN ,
27 September 2016
International criminal justice has taken a long journey over the past quarter of a century. This essay analyzes this evolution through an analogy to the Greek myth of Daedulus and Icarus. It argues that, similar to the flight in the tale, the journey of international criminal justice is marked by rise and fall and need for re-orientation. It examines some of the major developments and critiques through a contextualization of seven key moments: (i) Tadic 1995: The grounding of the humanist tradition, (ii) Akayesu: New consciousness regarding sexual and gender based violence, (iii) Krstic: The "new law" on genocide, (iv) the Al-Bashir Arrest Warrant: Law vs. Politics, (v) Lubanga: The global victim as constituency, (vi) Charles Taylor: Even-handedness and dilemmas of accessory liability , and (vii) Saif Gaddafi and Al Senussi: The new frontiers of complementarity. It shows that each of them marks an important turning point for modern understandings of international criminal justice. It concludes that like Icarus, international criminal jurisdiction is ill-advised to fly too close to the sun, and too low to the sea.
Summary by Author

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September The Risk of an International Criminal Court Investigation Should Affect Military Targeting Practices Ryan Goodman and Alex Whiting Just Security ,
15 September 2016
The ICC currently has jurisdiction over the territory and nationals of 124 States Parties to the Court, plus Darfur and Libya, where jurisdiction was conferred by the UN Security Council. As to current conflicts in Afghanistan, Libya, Syria, and Yemen, the Court could assert jurisdiction either over the territory and nationals of the State in question (Afghanistan and Libya), or over individual actors from State Parties participating in the conflict or aiding and abetting crimes committed in the course of hostilities (Syria and Yemen). Because the UN Security Council could, in the future, refer additional situations to the Court, and in addition countries can accede to retrospective ICC jurisdiction (at least back to 1 July 2002), the ICC currently has potential jurisdiction over the entire world, including all ongoing conflicts. When conducting risk assessments during the planning of military strikes, any fighting force in the world should consider the risk of subsequent ICC scrutiny. One would hope that, if any incentive were needed, even a small risk of a future ICC investigation might persuade an armed force to abide carefully by the laws of war. But how far should militaries go to ensure such compliance? More specifically, when might a failure to ensure fidelity to the laws of war result in individual criminal liability?
Summary extracted by Aspals

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September Libya: Examination of intervention and collapse and the UK's future policy options - Third Report of Session 2016–17 Foreign Affairs Select Committee Report ,
6 September 2016
In March 2011, the United Kingdom and France, with the support of the United States, led the international community to support an intervention in Libya to protect civilians from attacks by forces loyal to Muammar Gaddafi. This policy was not informed by accurate intelligence. In particular, the Government failed to identify that the threat to civilians was overstated and that the rebels included a significant Islamist element. By the summer of 2011, the limited intervention to protect civilians had drifted into an opportunist policy of regime change. That policy was not underpinned by a strategy to support and shape post-Gaddafi Libya. The result was political and economic collapse, inter-militia and inter-tribal warfare, humanitarian and migrant crises, widespread human rights violations, the spread of Gaddafi regime weapons across the region and the growth of ISIL in North Africa. Through his decision making in the National Security Council, former Prime Minister David Cameron was ultimately responsible for the failure to develop a coherent Libya strategy.
Summary by Aspals

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September Missing the Mark: Reprieve, 'Kill Lists' and Human Rights Advocacy Dr Aurel Sari EJIL Talk ,
6 September 2016
A "no-holds barred" criticism of the report by the human rights charity, Reprieve, entitled 'Britain's Kill List', which "claims to reveal shocking proof that exposes the involvement of the British Government in a global assassination project." Dr Sari argues that Reprieve's assault on targeting lists undermines the principle of distinction. To protect the civilian population in times of war, the parties to an armed conflict must at all times distinguish between civilians and civilian objects on the one side and military objectives on the other, and direct their operations only against the latter (Article 48, AP I). Moreover, its relentless advocacy is counterproductive and damaging. It should not be too much to expect an organisation that sets itself the mission to 'advocate in the court of law and of public opinion' to demonstrate greater understanding of the law and greater respect for accuracy. Unfortunately, the report all too often misconstrues the law and military doctrine in its zeal to discredit the targeting process. This leads Reprieve to construct a narrative that bears little resemblance to reality.
Well worth the read.
Summary by Aspals

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August 'Sovereignty in the Age of Global Terrorism' – What is the Role of International Organizations? Dr Myriam Feinberg Opinio Juris ,
August 18th, 2016
Dr Feinberg examines the legacy of the attacks of 9/11, which brought terrorism to the international stage. They raised many legal questions, both on the nature of terrorism itself and on the responses to the phenomenon. One of these questions is the role of international organisations in addressing the terrorist threat, and the ensuing question of the place of States in the international community. More generally, she contends that this can be examined in the wider context of state sovereignty, even though a number of international law analyses consider the concept of State sovereignty obsolete or in need of reform.
Summary by Aspals

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August British Forces Hit the Islamic State With 'the Punisher' – the Legality of Airburst Munitions Tom Ruys Opinio Juris ,
August 10, 2016
It was reported that British special forces had used a deadly new weapon, nicknamed the Punisher, in a confrontation with ISIL in the Libyan city of Sirte (see here and here. The reports suggest the first operational use by British troops of the XM25, a hand-held weapon firing 25mm anti-personnel rounds that explode in mid-air, directly above enemies hidden behind walls or other obstacles. The use of the weapon brings to mind one of the oldest (and shortest) law of armed conflict instruments, namely the 1868 St. Petersburg Declaration. Adopted at the initiative of the Russian Czar, this instrument specifically condemned the employment of explosive projectiles "of a weight below 400 grams." Surely then, using the Punisher is diametrically opposed to the prescripts of the St. Petersburg Declaration, an instrument ratified by the United Kingdom and which remains valid today. Or is it? the UK Manual still appears to rule out the use of the XM25, which indeed fires "explosive … bullets designed" for anti-personnel use.
Summary extracted by Aspals

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August Russian Strategic Deterrence Kristin Ven Bruusgaard Survival: Global Politics and Strategy ,
58:4, 7-26,
19 Jul 2016
Russia's intention to conduct a Ukraine-style hybrid operation against a NATO country is uncertain, but its determination to deter NATO from encroaching on Russia's security interests is clear. Although many Western analysts are preoccupied with the likelihood of Russia plotting 'hybrid warfare' operations against NATO members, the concept itself is not an explicit part of Russian military doctrine. For Russian analysts, hybrid warfare is a Western construct. A reading of Russian military–theoretical debates shows a preoccupation with a broader concept, which can be termed strategic deterrence (strategicheskoe sderzhivanie). This Russian concept is part of official doctrine and strategy, and understanding it is crucial to analysing current and future Russian security and defence policy.
Summary extracted by Aspals

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July The Chilcot Report and the Doctrine of Humanitarian Intervention Frederick Cowell Opinio Juris,
15 July 2016
Whilst not expressly commenting on the concept of humanitarian intervention the Chilcot reports findings leave little doubt that the 2003 Iraq War cannot be justified under this doctrine. The attempts by supporters of the war to frame the conflict in retrospect as a form of quasi-humanitarian intervention, examining Saddam's appalling human rights record or the prospect of further abuses, are missing the point; the type of war launched in 2003 could not be justified under any reasonable understanding of the doctrine of humanitarian intervention, and the findings of fact in the Chilcot report support this interpretation. The report's finding will shape the understanding of the most contested conflict of the last half-century and the one that colours all subsequent debates on the doctrine of humanitarian intervention.
Summary extracted by Aspals

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July The Chilcot Report – an Illegal War? Dominic Ruck Keene UK Human Rights Blog ,
7 July 2016
An excellent analysis of the background to the decision to go to war and what legal justification existed - or did not. More than 7 years after Gordon Brown first announced that a public Inquiry would be conducted to identify lessons that could be learned from the Iraq conflict, the Chilcot report was finally published on 7 July 2016. However, it was worth the wait. This post does not seek to summarise the report: there are many other good overviews (such as the BBC's ). The report's executive summary, in particular the key findings section, is also well worth a read. The intention is to cover in this and subsequent posts some of the key legal issues raised by the report. This post considers the relevance of the Chilcot report's findings to the broader issue of whether Britain's intervention in Iraq was legal – an issue which was not itself within the remit of the inquiry.
Summary extracted by Aspals

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June Cyber Operations and the Use of Force in International Law Marco Roscini OUP Oxford ,
(13 Mar. 2014)
The internet has changed the rules of many industries, and war is no exception. But can a computer virus be classed as an act of war? Does a Denial of Service attack count as an armed attack? And does a state have a right to self-defence when cyber attacked? With the range and sophistication of cyber attacks against states showing a dramatic increase in recent times, this book investigates the traditional concepts of 'use of force', 'armed attack', and 'armed conflict' and asks whether existing laws created for analogue technologies can be applied to new digital developments. The book provides a comprehensive analysis of primary documents and surrounding literature, to investigate whether and how existing rules on the use of force in international law apply to a relatively new phenomenon such as cyberspace operations. It assesses the rules of jus ad bellum and jus in bello, whether based on treaty or custom, and analyses why each rule applies or does not apply to cyber operations. The book is essential reading for everyone wanting a better understanding of how international law regulates cyber combat.
Summary extracted by Aspals

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May Extra-Territorial Claims in the "Spider's Web" of the Law? UK Supreme Court Judgment in Ministry of Defence v Iraqi Civilians Monica Feria-Tinta EJIL Talk!,
May 25, 2016
In the Iraqi civilians case, the Supreme Court gave judgment in relation to 14 lead claimants (in claims by over 600 Iraqi citizens), who had alleged unlawful detention and/or physical maltreatment at the hands of British armed forces in Iraq between 2003 and 2009. The Supreme Court held, applying Iraqi limitation law, that the claims of the Iraqi civilians in England were time-barred. It dismissed the appeal. This post addresses the central holding of this case. The Iraqi civilians case is instructive in the fascinating interplay between private international law and public international law in extra-territorial cases. In particular, it illustrates the complexity of the practice of international law and the inter-relation between private international law, which acts as a gatekeeper in deciding what goes on to be adjudicated by the courts, and public international law, which is relevant to the facts that are adjudicated once through that gate.
Summary extracted by Aspals

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May The MSF Airstrike Report: Better on the Facts Than on the Law David Glazier Just Security,
May 24, 2016
The military's investigation of the October 2015 airstrike on the Médicins Sans Frontières (MSF) hospital in Kunduz, Afghanistan was back in the news last week thanks to highly speculative accounts that unidentified Afghans might have manipulated US forces into attacking the facility. While there is little doubt many Afghan officials harbored substantial resentment over MSF's willing treatment of Taliban fighters, to my reading, the investigation report logically discredits this conspiracy theory. Without providing any source information, or identifying any specific war crimes, a US Central Command summary accompanying the report simplistically concluded that none were committed because there was no intent on the part of US personnel to strike a protected medical facility; all those involved mistakenly assumed they were striking the lawful target identified by Afghan forces. Yet despite the identification of egregious violations of the effective US rules of engagement, there is no serious discussion of possible prosecution for unlawful use of force not constituting a war crime per se. These factors demonstrate real reason for concern about the current state of operational legal knowledge among deployed US forces. In assessing whether a war crime had been committed, a modern student or practitioner of international criminal law would logically begin by seeking to establish satisfaction of the requisite "chapeau elements" — the existence of an armed conflict, its classification as international or non-international, and the relationship of the conduct to the conflict. The first and last of these elements are fairly self-evident in this case; the classification of the conflict is more complex.
Summary extracted by Aspals

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May The law needs to catch up in the fight against ISIS Tom Simpson CAPX, 19 May 2016,
2 May 2016
On 21 Aug 2015, a British citizen from Cardiff, Reyaad Khan, was killed by an RAF drone strike in Raqqa, Syria. He was fighting for ISIS, and was believed to be planning terrorist attacks in the UK. Mohammed Emwazi–'Jihadi John' – was killed in November by a drone strike, this time in a US operation, but with active UK intelligence cooperation. According to David Cameron, the UK worked 'hand in glove' with the US to kill him. The problem is that both of these strikes took place before Parliament had voted to extend UK military action against ISIS into Syria. They happened outside of a declared armed conflict. It looks very much like the UK sees itself as having the same permission as the US to use drones for killing outside of war, and will do so, just a bit less intensively. But what rules govern this policy?
Summary extracted by Aspals

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May Recklessness, War Crimes, and the Kunduz Hospital Bombing Professor Alex Whiting Just Security,
2 May 2016
On the 3 October 2015, the emergency trauma hospital in Kunduz, Afghanistan, was repeatedly bombed by Coalition forces. At least 42 people were killed: 24 patients and 14 Médicins Sans Frontières staff, along with four patient caretakers. The only specialist trauma centre in northeast Afghanistan has been destroyed, depriving tens of thousands lifesaving surgical care. The US military announced that it was disciplining 16 service members involved in the bombing of the hospital in Kunduz, for violations of the laws of war and the rules of engagement. However, because the military concluded that the violations were not committed intentionally, it determined that criminal charges were not warranted. The decision has been criticised by some, arguing that recklessness can be sufficient for war crimes, and that the limited facts presented by the military either indicate that the soldiers acted recklessly, or fail to exclude the possibility that they did so. But this position is not supported by the provisions of the Rome Statute which, in Article 30, excluded recklessness and its civil law counterpart (dolus eventualis) as a basis for criminal liability, requiring instead an intent to engage in criminal conduct.
Summary by Aspals

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May Was the Kunduz Hospital Attack a War Crime? Jens David Ohlin Opinio Juris,
2 May 2016
Kunduz hospital was attacked in October 2015. The picture painted by the Pentagon report is pretty damning. The attack killed 42 people and turned out to be a giant mistake. The US attacked the wrong building. A total of 16 Americans involved in the attack were officially disciplined administratively. But was the attack criminal? The problem is that the killing of the innocent civilians was not intentional, it was accidental. As a matter of criminal law, it was either reckless or negligent, but the civilian killings were not performed with purpose.
Summary extracted by Aspals

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April Beyond endurance? Military exercises and the duty of care House of Commons Defence Sub-Committee Third Report of Session 2015–16,
20 April 2016
Between 1 January 2000 and 20 February 2016, 135 Armed Forces personnel have died whilst on training and exercise, not on operations. Of these 115 were Regular personnel and 20 were 'on duty' Reserve personnel. 8 from the Royal Navy, 15 Royal Marines, 89 Army personnel and 22 RAF personnel. The Armed Forces Covenant is an agreement between the Armed Forces community, the nation and the Government which encapsulates the moral obligation to those who serve, have served, their families and the bereaved. The Covenant includes a "Responsibility of Care". The inquiry examined if effective processes exist for learning lessons from accidents and deaths that have occurred during such events and whether there was an appropriate level of accountability and sanction when failings occurred. Of particular concern was to find out if there were any systemic failings in the policies and practices of the MoD and the Armed Forces; the balance between potential risks in training, exercises and selection events with the need to maintain operational preparedness and effectiveness; the provision of medical services during training, exercises and selection events; the checks in place to manage the risk of Service personnel pushing themselves too hard; effective processes for capturing lessons from accidents and deaths during training, exercises and selection events; and how Coroners' recommendations following the deaths of Service personnel were implemented. The Committee recommended, inter alia, that the MoD conduct an analysis of whether Service law is fit for the purpose of holding people accountable for training supervision. It also was not persuaded that the military should be exempt in respect of hazardous training in preparation for operations or that Specialist Military Units should enjoy a complete exemption where gross neglect has occurred. Furthermore, it cannot be right that an individual can be prosecuted while the corporate body cannot. Accordingly, the Committee recommended that the military exemptions in the Corporate Manslaughter and Corporate Homicide Act 2007 be amended so that the MoD can be prosecuted if it has been subject to a Crown Censure from the Health and Safety Executive for a particular incident.
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March Mercenaries Unleashed. The brave new world of private military and security companies War on Want War on Want Report,
March 2016
In the 15 years since the declaration of a 'war on terror' and the invasions of first Afghanistan and then Iraq, the world has witnessed an enormous proliferation of private military and security companies (PMSCs) seeking to profit from instability and conflict. Hundreds of companies have been established in the past few years alone, and there now exists a vast private industry worth hundreds of billions of dollars. Sadly, rather than introducing binding regulation of the industry, the British government has decided to allow the mercenaries to regulate themselves. This briefing provides an update on the mercenary industry, detailing the latest developments in the murky world of these 'guns for hire'. UK companies continue to dominate the industry, and can be found at the forefront both in the conflict zones of the 'war on terror' and in the expansion to Africa and the high seas. The use of private armies by governments and corporations was previously an exception. It is now becoming the norm, as states and companies seek to evade responsibility for the use of violent and often deadly force. The industry will continue to grow unchecked unless it is brought under control.
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February Mapping the Law That Applies to War Crimes in Syria Beth Van Schaack Just Security,
1 February 2016
War crimes have been a consistent feature of the Syrian conflict since its inception. Indeed, a map of the war crimes committed in Syria reads like a survey course of the topic. The Syrian people have witnessed and experienced siege warfare; deliberate, indiscriminate, and disproportionate attacks against civilians and civilian objects; the misuse of conventional, unconventional, and improvised weapons and weapon systems; industrial-grade custodial abuses exemplified by photographs secreted from the country in 2013 by a former forensic photographer codenamed "Caesar"; the denial of humanitarian aid and what appears to be the deliberate use of starvation as a weapon of war; the intentional destruction of cultural property; and rampant sexual violence against men, women, and children. The emergence of the Islamic State of Iraq and the Levant (ISIL) on the scene introduced a new set of even more ruthless perpetrators that have brought the violence to a new even more disquieting level of brutality. In addition to war crimes, the Syrian people have experienced other crimes under international criminal law, including crimes against humanity, torture, terrorism, and potentially genocide against ethno-religious minorities. An excellent analysis of the issues involved.
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January Hybride Bedrohungen 2016 (Hybrid Threats) Dr Sascha Bachmann Sicher. Und Morgen? Sicherheitspolitische Jahresvorschau 2016,
January 2016
The refugee crisis in Western Europe, Islamist terrorism abroad and increasingly also in the intra-European context, organized criminality, human trafficking and cyber attacks or, cybercrime are examples of hybrid threats which more often affect the powers of national security organs and overtax them. The answer would be a Western European basic consensus on regional cooperation of all concerned security agencies to address these threats through a comprehensive security hybrid approach. Such an approach presupposes, however also an appropriate legal framework alongside a political consensus - a challenge that must be overcome.
[English Translation]
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26 January Reaffirming the Role of Human Rights in a Time of "Global" Armed Conflict Jonathan Horowitz Opinio Juris,
26 January 2016
If a foreign State asked you (a government official) permission to let it kill an individual on your government's territory – an individual who the foreign State said it was fighting against in a non-international armed conflict (NIAC) but who was not in a NIAC against your government – would your human rights obligations prevent you from providing your consent? To pose the question more directly: Would you permit another state to kill someone on your territory in a manner that you yourself weren't allowed to do? These questions expose a rarely discussed tension that rests at the heart of the notion of a global (or transnational) NIAC. Unlike many important writings that debate this issue with a focus on the attacking State, these questions seek to reveal the legal responsibilities, namely under human rights law, that arise when a host State grants its consent to the attacking State.
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January (Il)legality of Killing Peacekeepers The Crime of Attacking Peacekeepers in the Jurisprudence of International Criminal Tribunals Magdalena Pacholska Journal of International Criminal Justice,
Volume 13, Issue 1, 1 March 2015
Pp. 43-72
On 28 March 2013, the United Nations (UN) Security Council adopted Resolution 2089 extending the mandate of the United Nations Organization Stabilization Mission in the Democratic Republic of Congo (MONUSCO) and creating the Force Intervention Brigade (FIB) — the first-ever offensive combat unit within the structure of a peacekeeping mission. The establishment of the Brigade has raised a number of political and legal controversies, one of which is whether, and under what circumstances, attacking peacekeepers operating under robust mandates entails individual criminal responsibility under international law. The UN press release issued after the combat death of a Tanzanian FIB member, although condemnatory, did not classify the attack as criminal, implying that he may have been a lawful target. In the future, such robust peacekeeping mandates are likely to become more common, raising questions about the boundaries of international humanitarian law for 'peacekeepers', and the scope of the international criminal law prohibition on attacking them. This article addresses those questions through the jurisprudence of the ad hoc tribunals, the Special Court for Sierra Leone and the International Criminal Court. Unfortunately, existing jurisprudence fails to adequately accommodate the possibility of peacekeepers becoming parties to the conflict. This article proposes a functional approach based on participation in offensive operations.
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