Open Access. Powered by Scholars. Published by Universities.®
International Humanitarian Law Commons™
Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Institution
- Publication Year
- Publication
- Publication Type
Articles 1 - 30 of 35
Full-Text Articles in International Humanitarian Law
Revisiting Ad Bellum Proportionality: Challenging The Factors Used To Assess It, Yishai Beer
Revisiting Ad Bellum Proportionality: Challenging The Factors Used To Assess It, Yishai Beer
International Law Studies
Traditionally, international law has established a binary distinction between jus ad bellum and jus in bello. The former relates to the right to exercise military force. The latter regulates the conduct of adversaries engaged in an armed conflict. However, the prevailing legal approach doesn't accept this dichotomy. It wants to reduce war's hazards by applying the ad bellum rules, including the proportionality requirement, continuously throughout the conduct of armed conflict. To that end, it has established factors that define the essence of the continuing ad bellum proportionality requirement. This article challenges the near-unanimous consensus regarding these factors. It argues that …
Know Thy Enemy: The Use Of Biometrics In Military Operations And International Humanitarian Law, Marten Zwanenburg
Know Thy Enemy: The Use Of Biometrics In Military Operations And International Humanitarian Law, Marten Zwanenburg
International Law Studies
Biometrics is a technology that is increasingly being adopted by armed forces. It is the automated recognition of individuals based on their biological or behavioral characteristics. Important questions in relation to the use of this technology by armed forces concern the legal framework that governs such use. This article discusses the relationship between International Humanitarian Law (IHL) and biometrics, by focusing on a number of different activities carried out during armed conflict in which biometrics can play a role. It concludes that although IHL contains no rules that expressly regulate the use of biometrics, a number of IHL rules are …
Armed Conflicts In Outer Space: Which Law Applies?, Frans G. Von Der Dunk
Armed Conflicts In Outer Space: Which Law Applies?, Frans G. Von Der Dunk
International Law Studies
So far, outer space has merely become involved in terrestrial armed conflicts as part of the supportive infrastructure for military activities. Unfortunately, the risk that this changes is considerably growing, and it can no longer be excluded that (armed) force will become used in outer space, either directed towards Earth or within outer space itself.
This raises serious issues in the legal context, where space law so far has been premised on the hope that armed conflicts in outer space could be avoided whereas the law of armed conflict was not required so far to deal with the use of …
Common Article 1 And The Duty To "Ensure Respect", Michael N. Schmitt, Sean Watts
Common Article 1 And The Duty To "Ensure Respect", Michael N. Schmitt, Sean Watts
International Law Studies
Common Article 1 to the four 1949 Geneva Conventions requires Parties to those instruments to “respect and to ensure respect for the present Convention in all circumstances.” The provision is a corollary to the general international legal obligation of States to honor their treaty commitments, expressed classically in the maxim pacta sunt servanda.
Yet, academics and private organizations now use Common Article 1 as a vehicle to reimagine States’ enforcement obligations under the Geneva Conventions. Reinterpreting the article beyond its original meaning, they claim the article includes an “external” obligation—a duty on the part of all States to use …
Beyond Human Shielding: Civilian Risk Exploitation And Indirect Civilian Targeting, Geoffrey S. Corn
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 …
Strategic Proportionality: Limitations On The Use Of Force In Modern Armed Conflicts, Noam Lubell, Amichai Cohen
Strategic Proportionality: Limitations On The Use Of Force In Modern Armed Conflicts, Noam Lubell, Amichai Cohen
International Law Studies
The nature of modern armed conflicts, combined with traditional interpretations of proportionality, poses serious challenges to the jus ad bellum goal of limiting and controlling wars. In between the jus ad bellum focus on decisions to use force, and the international humanitarian law (IHL) regulation of specific attacks, there is a far-reaching space in which the regulatory role of international law is bereft of much needed clarity. Perhaps the most striking example is in relation to overall casualties of war. If the jus ad bellum is understood as applying to the opening moments of the conflict, then it cannot provide …
The (Erroneous) Requirement For Human Judgment (And Error) In The Law Of Armed Conflict, Eric Talbot Jensen
The (Erroneous) Requirement For Human Judgment (And Error) In The Law Of Armed Conflict, Eric Talbot Jensen
International Law Studies
One of the most intriguing and important discussions in international law is the potential impact of emerging technologies on the law of armed conflict (LOAC), including weapons that incorporate machine learning and/or artificial intelligence. Because one of the likely characteristics of these advanced weapons would be the ability to make decisions implicating life and death on the battlefield, these discussions have highlighted a fundamental question concerning the LOAC: Does the law regulating armed conflict require human input in selecting and engaging targets or can that decision be made without human input? This article analyzes views expressed by scholars and NGOs, …
Silent War: Applicability Of The Jus In Bello To Military Space Operations, Kubo Mačák
Silent War: Applicability Of The Jus In Bello To Military Space Operations, Kubo Mačák
International Law Studies
There are no molecules of air that could carry sound waves in the vacuum of outer space. Accordingly, space warfare may well become the first type of war whose signature sound would be—silence. But does the law of armed conflict (jus in bello) fall silent in times of Silent War? This article addresses the uncertainty at the heart of this issue. First, it delineates the relevant conceptual framework by examining the factual notion of “military space operations,” and its relationship with the legal concept of “armed conflict,” as well as the overlap between the potentially applicable bodies of …
The Ndaa, Aumf, And Citizens Detained Away From The Theater Of War: Sounding A Clarion Call For A Clear Statement Rule, Diana Cho
Loyola of Los Angeles Law Review
In the armed conflict resulting from the September 11 attacks, the executive authority to order the indefinite detention of citizens captured away from the theater of war is an issue of foreign and domestic significance. The relevant law of armed conflict provisions relevant to conflicts that are international or non-international in nature, however, do not fully address this issue. Congress also intentionally left the question of administrative orders of citizen detainment unresolved in a controversial provision of the 2012 version of the annually-enacted National Defense Authorization Act. While plaintiffs in Hedges v. Obama sought to challenge the enforceability of NDAA’s …
A Reply To Wittes On The United States And Extraterritoriality, Peter Margulies
A Reply To Wittes On The United States And Extraterritoriality, Peter Margulies
Law Faculty Scholarship
No abstract provided.
The Janus Moon Rising - Why 2014 Heralds United States' Detention Policy On A Collision Course...With Itself, Chris Jenks
The Janus Moon Rising - Why 2014 Heralds United States' Detention Policy On A Collision Course...With Itself, Chris Jenks
Faculty Journal Articles and Book Chapters
2014 will serve as a test of the United States’ claims that its detention policy is consistent with the law of armed conflict (LOAC). If, as President Obama has repeatedly stated, U.S. involvement in the armed conflict in Afghanistan will end this year, then any LOAC based detention of belligerents linked solely to that conflict ends as well. That should mean the release or transfer of members of the Taliban currently detained at Guantanamo. It won’t.
Correspondents' Reports United States Of America, Chris Jenks
Correspondents' Reports United States Of America, Chris Jenks
Faculty Journal Articles and Book Chapters
This correspondent report compiles examples of where and how in 2013 the United States demonstrated its compliance with international humanitarian law by prosecuting its service members in military courts-martial and captured enemy belligerents in military commissions and by US federal courts hearing detainee habeas challenges.
Belligerent Targeting And The Invalidity Of A Least Harmful Means Rule, Geoffrey S. Corn, Laurie R. Blank, Chris Jenks, Eric Talbot Jensen
Belligerent Targeting And The Invalidity Of A Least Harmful Means Rule, Geoffrey S. Corn, Laurie R. Blank, Chris Jenks, Eric Talbot Jensen
Faculty Journal Articles and Book Chapters
The law of armed conflict provides the authority to use lethal force as a first resort against identified enemy belligerent operatives. There is virtually no disagreement with the rule that once an enemy belligerent becomes hors de combat — what a soldier would recognizes as “combat ineffective” — this authority to employ deadly force terminates. Recently, however, some have forcefully asserted that the LOAC includes an obligation to capture in lieu of employing deadly force whenever doing so presents no meaningful risk to attacking forces, even when the enemy belligerent is neither physically disabled or manifesting surrender. Proponents of this …
Correspondents' Reports: A Guide To State Practice In The Field Of International Humanitarian Law, Chris Jenks
Correspondents' Reports: A Guide To State Practice In The Field Of International Humanitarian Law, Chris Jenks
Faculty Journal Articles and Book Chapters
This correspondent report compiles examples of where and how the United States demonstrated its compliance with international humanitarian law by prosecuting its service members in 2010.
The Gaza War Of 2009: Applying International Humanitarian Law To Israel And Hamas, Justus Reid Weiner, Avi Bell
The Gaza War Of 2009: Applying International Humanitarian Law To Israel And Hamas, Justus Reid Weiner, Avi Bell
San Diego International Law Journal
This Article explores the many international legal issues raised by the Palestinian-Israeli tension along Gaza's borders. It first examines legal issues raised by Palestinian conduct and then turns to legal issues raised by Israeli conduct. As will be demonstrated, criticisms of Israeli behavior ... lack any basis in international law. By contrast, Palestinian behaviors that are rarely criticized constitute severe violations of international law.
The Cost Of Conflation: Preserving The Dualism Of Jus Ad Bellum And Jus In Bello In The Contemporary Law Of War, Robert D. Sloane
The Cost Of Conflation: Preserving The Dualism Of Jus Ad Bellum And Jus In Bello In The Contemporary Law Of War, Robert D. Sloane
Faculty Scholarship
Much post-9/11 scholarship asks whether modern transnational terrorist networks, the increasing availability of catastrophic weapons to nonstate actors, and other novel threats require changes to either or both of the two traditional branches of the law of war: (i) the jus ad bellum, which governs resort to war, and (ii) the jus in bello, which governs the conduct of hostilities. Scant recent work focuses on the equally vital question whether the relationship between those branches-and, in particular, the traditional axiom that insists on their analytic independence-can and should be preserved in contemporary international law. The issue has been largely neglected …
U.S. Policy On Targeting Enemy Merchant Shipping: Bridging The Gap Between Conventional Law And State Practice, H. B. Robertson Jr.
U.S. Policy On Targeting Enemy Merchant Shipping: Bridging The Gap Between Conventional Law And State Practice, H. B. Robertson Jr.
International Law Studies
No abstract provided.
The Naval Practices Of Belligerents In World War Ii: Legal Criteria And Developments, Sally V. Mallison, Thomas W. Mallison
The Naval Practices Of Belligerents In World War Ii: Legal Criteria And Developments, Sally V. Mallison, Thomas W. Mallison
International Law Studies
No abstract provided.
Naval Targeting: Lawful Objects Of Attack, Sally V. Mallison, W. Thomas Mallison
Naval Targeting: Lawful Objects Of Attack, Sally V. Mallison, W. Thomas Mallison
International Law Studies
No abstract provided.
The Law Of Piracy: Index, Alfred P. Rubin
The Law Of Piracy: Index, Alfred P. Rubin
International Law Studies
No abstract provided.
Legal Aspects Of Counterinsurgency, J. F. Hogg
Legal Aspects Of Counterinsurgency, J. F. Hogg
International Law Studies
No abstract provided.
International Law And Basic Human Rights, Rita E. Hauser
International Law And Basic Human Rights, Rita E. Hauser
International Law Studies
No abstract provided.
International Law, The Oas And The Dominican Crisis, Charles G. Fenwick
International Law, The Oas And The Dominican Crisis, Charles G. Fenwick
International Law Studies
No abstract provided.
Forcible Self-Help In International Law, James J. Mchugh
Forcible Self-Help In International Law, James J. Mchugh
International Law Studies
No abstract provided.
Military Justice A Reinforcer Of Discipline, Robert S. Poydasheff
Military Justice A Reinforcer Of Discipline, Robert S. Poydasheff
International Law Studies
No abstract provided.
Collective Intervention And The Law Of The Charter, William O. Miller
Collective Intervention And The Law Of The Charter, William O. Miller
International Law Studies
No abstract provided.
Prisoners Of War And The Code Of Conduct, William P. Lyons
Prisoners Of War And The Code Of Conduct, William P. Lyons
International Law Studies
No abstract provided.
International Law And Basic Human Rights, Louis B. Sohn
International Law And Basic Human Rights, Louis B. Sohn
International Law Studies
No abstract provided.
Acknowledgments And Introduction: Use Of Force, Human Rights, And General International Legal Issues
Acknowledgments And Introduction: Use Of Force, Human Rights, And General International Legal Issues
International Law Studies
No abstract provided.