International Humanitarian Law Commons^™

Should Have Known Better? The Standard Of Knowledge For Command Responsibility In International Criminal Law, Roee Bloch

International Law Studies

The criminal doctrine of command responsibility has a rich legal history, which makes it a widely recognized, if unsettled, concept of international criminal law. This article focuses on a key element of command responsibility: the commander’s knowledge of a subordinate's crimes. This article argues that current customary law instructs to apply a standard of actual knowledge of the commander, rather than the lower standard of constructive knowledge. The article reaches this conclusion by observing the primary shaping factor of international law—State behavior. Through the example of six diverse legal systems, the article demonstrates how the approach of legislative, executive, and …

The Shadow Of Success: How International Criminal Law Has Come To Shape The Battlefield, Gabriella Blum

International Law Studies

The rise of international criminal law (ICL) has undoubtedly contributed to the development and enforcement of international humanitarian law (IHL). Yet, there are also important and oft-overlooked ways in which it has done the opposite. By labeling certain violations of the laws of war as “criminal” and setting up dedicated mechanisms for prosecution and punishment of offenders, the content, practice, and logic of ICL are displacing those of IHL. With its doctrinal precision, elaborate institutions, and the seemingly irresistible claim of political and moral priority, ICL is overshadowing the more diffuse, less institutionalized, and more difficult to enforce IHL.

But …

Animating The U.S. War Crimes Act, Beth Van Schaack

International Law Studies

All war crimes are challenging to prosecute. Typical reasons include the technicality of some constitutive elements, the difficulties of amassing sufficient evidence, the vagaries of unreliable or unavailable witnesses, and the often-impenetrable khaki wall of silence. Adding to these challenges, the United States has erected a number of idiosyncratic structural barriers in the way in which it has incorporated the prohibitions against war crimes into its domestic legal frameworks, both military and civilian. This article addresses problems with the U.S. federal war crimes statute and proposes reforms that would (1) better conform to U.S. obligations under the Geneva Conventions and …

Application Of The Due Diligence Principle To Cyber Operations, Tomohiro Mikanagi

International Law Studies

The discreet use of proxies by States renders it difficult to prove attribution to States under the existing rules of attribution. On the other hand, the due diligence principle, if applicable, does not require attribution but can lead to the invocation of State responsibility for cyber operations emanating from the territory of other States. In the Corfu Channel judgment the ICJ recognized “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States,” and UN Member States agreed that existing international law applies to cyber operations. However, the UN Members …

Autonomous Cyber Weapons And Command Responsibility, Russell Buchan, Nicholas Tsagourias

International Law Studies

Autonomous cyber weapons have made their way onto the battlefield, raising the question of whether commanders can be held criminally responsible under command responsibility when war crimes are committed. The doctrine of command responsibility has a long history in international criminal law and comprises three core elements: the existence of a superior-subordinate relationship, the commander’s knowledge of the crime, and the commander’s failure to prevent or repress the subordinate’s criminal actions. This article unpacks the content of these elements and applies them to autonomous cyber weapons by treating them as being analogous to soldiers since they operate within an organized …

The Human Dimension Of Peace And Aggression, Chiara Redaelli

International Law Studies

Since the adoption of the Charter of the United Nations, the current international legal framework has drastically changed. In its traditional understanding, aggression is “the supreme international crime” aimed at protecting sovereignty and the territorial integrity of states. On the other hand, the U.N. Charter endorses an understanding of peace in the negative sense, that is, as mere absence of war. As human rights have gained momentum, they have helped reshape the legal landscape, a phenomenon referred to as the humanization of international law. How do peace and aggression fit within the humanized legal framework? This article will investigate the …

Beyond Human Shielding: Civilian Risk Exploitation And Indirect Civilian Targeting, Geoffrey S. Corn

International Law Studies

Few violations of the law of armed conflict (LOAC) are as pernicious as using civilians to shield military objectives from attack. This unlawful tactic unfortunately seems to be an all too common practice of organized armed groups, especially in conflicts against tactically superior conventional state armed forces. The very term "human shielding" presupposes, however, the ultimate objective is to prevent an opponent from attacking the shielded military objective or, in the alternative, substantially complicate that attack decision. But is a shielding effect always the ultimate objective of such civilian exploitation? This article argues that the answer is no; that there …

Detention By Armed Groups Under International Law, Andrew Clapham

International Law Studies

Does international law entitle armed groups to detain people? And what obligations are imposed on such non-state actors when they do detain? This article sets out suggested obligations for armed groups related to the right to challenge the basis for any detention and considers some related issues of fair trial and punishment. The last part of this article briefly considers the legal framework governing state responsibility and individual criminal responsibility for those that assist armed groups that detain people in ways that violate international law.

Chemical Weapons And Other Atrocities: Contrasting Responses To The Syrian Crisis, Tim Mccormack

International Law Studies

Why has the use of chemical weapons in Syria engendered such a substantive multilateral response in stark contrast to almost every other egregious international law violation perpetrated against the civilian population? Various theories have been offered but the explanation has little to do with humanitarian concerns for Syrian victims and is more readily explicable by unusual (in the Syrian context) alignment of U.S. and Russian national interests. Bashar al-Assad was convinced to accede to the Chemical Weapons Convention, to surrender his stockpiles of chemical weapons and to co-operate with international investigators deployed under UN Security Council auspices amid a cacophony …

Syria: Can International Law Cope? Workshop Report, Christopher M. Ford

International Law Studies

The Stockton Center for the Study of International Law at the U.S. Naval War College and the Center for the Rule of Law at the U.S. Military Academy convened a three-day workshop in November 2015. The workshop sought to examine the question posed by its title: Can International Law Cope with the Situation in Syria? It is a question that has ramifications for the viability of international law well beyond the confines of events in Syria. This report surveys the key issues that were raised during the workshop and serves as an introduction to the articles that follow in this …

Mapping War Crimes In Syria, Beth Van Schaak

International Law Studies

This article maps the range of war crimes being committed in Syria with reference to the applicable treaty and customary international law and prospects for prosecution. It begins by presenting the international legal framework employed to determine when an armed conflict began in Syria, how this conflict is classified under international law and which multilateral treaties and customary rules are operative. This framework underlies the determination of which war crimes can be prosecuted, which tribunals might have jurisdiction and which perpetrators may be made subject to indictment. The article next focuses on some open legal and factual issues around certain …

The Combatant’S Stance: Autonomous Weapons On The Battlefield, Jens David Ohlin

International Law Studies

Do Autonomous Weapon Systems (AWS) qualify as moral or rational agents? This paper argues that combatants on the battlefield are required by the demands of behavior interpretation to approach a sophisticated AWS with the “Combatant’s Stance”—the ascription of mental states required to understand the system’s strategic behavior on the battlefield. However, the fact that an AWS must be engaged with the combatant’s stance does not entail that other persons are relieved of criminal or moral responsibility for war crimes committed by autonomous weapons. This article argues that military commanders can and should be held responsible for perpetrating war crimes through …

Conflict Classification In Ukraine: The Return Of The “Proxy War”?, Robert Heinsch

International Law Studies

The article examines the exact conditions for classifying an armed conflict under international humanitarian law against the backdrop of the crisis in Ukraine, taking into account the difficult factual situation on the ground and the involvement of the different parties to the conflict. Apart from dealing with the requirements of an international or a non-international armed conflict, it looks again into the specific circumstances for the “internationalization” of an internal armed conflict. In doing so, the author revisits the various approaches found in the jurisprudence of the International Court of Justice in its 1986 Nicaragua and 2007 Genocide judgments, as …

Regulating Hostilities In Non-International Armed Conflicts: Thoughts On Bridging The Divide Between The Tadić Aspiration And Conflict Realities, Geoffrey S. Corn

International Law Studies

International Humanitarian Law (IHL) evolved to strike a rational balance between the necessity of using combat power to defeat enemy opponents, and the humanitarian interest of mitigating the human suffering resulting from armed conflict. Ironically, however, the “type” of conflict most comprehensively regulated by this law—international or inter-State (IACs)—is not the “type” of armed conflict that has been most notable for producing humanitarian suffering since the end of World War II. Instead, non-international armed conflicts (NIACs)—conflicts between States and organized non-State belligerent groups, or even between multiple non-State belligerent groups—have been notorious for their brutality, indifference towards humanitarian restraint, and …

Seeking International Criminal Justice In Syria, Annika Jones

International Law Studies

No abstract provided.

Belligerent Targeting And The Invalidity Of A Least Harmful Means Rule, Geoffrey S. Corn, Laurie R. Blank, Chris Jenks, Eric Talbot Jensen

International Law Studies

No abstract provided.

The Seizure Of Abu Anas Al-Libi: An International Law Assessment, Gordon Modarai, David O'Connell, Timothy Kelly, James Farrant

International Law Studies

No abstract provided.

International Enforcement In Non-International Armed Conflict: Searching For Synergy Among Legal Regimes In The Case Of Libya, John Cerone

International Law Studies

No abstract provided.

Use Of Unmanned Systems To Combat Terrorism, Raul A. "Pete" Pedrozo

International Law Studies

No abstract provided.

Low-Intensity Computer Network Attack And Self-Defense, Sean Watts

International Law Studies

No abstract provided.

Xvi Litigating How We Fight, Ashley S. Deeks

International Law Studies

No abstract provided.

The Law Of Armed Conflict In Asymmetric Urban Armed Conflict, David E. Graham

International Law Studies

No abstract provided.

Regime Change And The Restoration Of The Rule Of Law In Iraq, Raid Juhi Al-Saedi

International Law Studies

No abstract provided.

Rule Of Law Capacity Building In Iraq, Richard Pregent

International Law Studies

No abstract provided.

Concluding Observations: The Influence Of The Conflict In Iraq On International Law, Yoram Dinstein

International Law Studies

No abstract provided.

Occupation In Iraq: Issues On The Periphery And For The Future: A Rubik's Cube Problem?, George K. Walker

International Law Studies

No abstract provided.

The Dark Sides Of Convergence: A Pro-Civilian Critique Of The Extraterritorial Application Of Human Rights Law In Armed Conflict, Naz K. Modirzadeh

International Law Studies

No abstract provided.

Jus Ad Pacem In Bello? Afghanistan, Stability Operations, And The International Law Relating To Armed Conflicts, David Turns

International Law Studies

No abstract provided.

Making The Case For Conflict Bifurcation In Afghanistan: Transnational Armed Conflict, Al Qaida, And The Limits Of Associated Militia Concept, Geoffrey S. Corn

International Law Studies

No abstract provided.

International Legal Dynamics And The Design Of Feasible Missions: The Case Of Afghanistan, W. Michael Reisman

International Law Studies

No abstract provided.