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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 …

Israel’S Perspective On Key Legal And Practical Issues Concerning The Application Of International Law To Cyber Operations, Roy Schöndorf

International Law Studies

The speech given by the Israeli Deputy Attorney General (International Law) at the Naval War College’s event on “Disruptive Technologies and International Law” sets out, for the first time, Israel’s position on the application of international law to cyber operations. Consistent with the position taken by the vast majority of States thus far, Israel considers that international law applies to such operations. The speech stresses that questions pertaining to the identification and application of relevant legal rules remain, given the profound differences between the cyber domain and traditional domains of warfare—land, sea, and air. Therefore, in Israel’s view, a cautious …

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 …

Autonomy And Precautions In The Law Of Armed Conflict, Eric Talbot Jensen

International Law Studies

Already a controversial topic, legal debate and broader discussions concerning the amount of human control required in the employment of autonomous weapons—including autonomous cyber capabilities—continues. These discussions, particularly those taking place among States that are Parties to the 1980 Certain Conventional Weapons Convention, reveal a complete lack of consensus on the requirement of human control and serve to distract from the more important question with respect to autonomy in armed conflict: under what conditions could autonomous weapons “select” and “attack” targets in a manner that complies with the law of armed conflict (LOAC).

This article analyzes the specific LOAC rules …

Lethal Autonomous Weapon Systems: Translating Geek Speak For Lawyers, Linell A. Letendre

International Law Studies

This article provides an overview of robotics and autonomous systems so that attorneys can better understand the systems and design principles of lethal autonomous weapon systems (LAWS) that may be used in an armed conflict. Using the lens of establishing a common language between engineers and attorneys, the article introduces the basics of robotics terminology, explores how autonomous systems work by explaining control systems and control architecture, and examines how autonomous systems learn and reason. It also suggests a number of questions attorneys should ask engineers during the design process in order to ensure autonomous systems are designed in a …

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

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

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, …

Indeterminacy In The Law Of Armed Conflict, Adil Ahmad Haque

International Law Studies

Controversy and confusion pervade the law of armed conflict. Its most basic rules may seem ambiguous, vague, incomplete, or inconsistent. The prevailing view of customary international law confronts serious problems, in principle and in practice, when applied to the customary law of armed conflict. Legal indeterminacy, in its different forms, might be reduced or resolved in light of the object and purpose of the law of armed conflict, or by taking into account other relevant rules of international law. Unfortunately, the purpose of the law of armed conflict is itself the subject of deep disagreement. So is the relationship between …

Medical Care In Urban Conflict, Kenneth Watkin

International Law Studies

The potential for urban violence is increasing as the world population continues to migrate towards cities. Recent examples of urban warfare with insurgent groups has occurred in Damascus, Mosul, Raqqa, Marawi, Ramadi, and Fallujah, although non-State actor conflict covers a wide range of violence from ordinary crime, to terrorism and transnational crime, to near conventional conflict. Further, transnational terrorist groups have sought to extend the conflict into countries seen as the “far enemy.” A key issue is determining if an armed conflict is in existence so that the protective focus of international humanitarian law regarding the provision of medical care …

Humanitarian Logic And The Law Of Siege: A Study Of The Oxford Guidance On Relief Actions, Sean Watts

International Law Studies

In terms of human suffering, few military operations have rivaled sieges and comparably harsh legal regimes have governed them. At a time when legal vindication of humanitarian interests in armed conflict is ascendant, conventional accounts of the law of war governing humanitarian relief may seem out of step, plagued with glaring gaps in humanitarian logic. In 2016, Oxford University professors published a United Nations-commissioned legal study—the Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict. The Guidance contends that during armed conflict international law prohibits belligerents from arbitrarily denying offers of humanitarian relief …

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 …

Combat Losses Of Nuclear-Powered Warships: Contamination, Collateral Damage And The Law, Akira Mayama

International Law Studies

There have been non-combat losses of nuclear-powered warships during sea trials and peacetime patrol missions. Nuclear contamination is spreading from some of these sinking sites. It is also conceivable that combat losses of nuclear-powered warships could cause contamination of civilians, civilian objects and the natural environment. If such combat losses occur at sea, both belligerent and neutral States will have to deal with a difficult question: to what extent and by who can harm resulting from such contamination be compensated for payment of damages. This article examines legal issues stemming from prospective combat losses of nuclear-powered warships from the perspectives …

Detention Under The Law Of Armed Conflict, Chris Jenks

Faculty Journal Articles and Book Chapters

Despite recent hard-earned experience during international and non-international armed conflicts in places like Afghanistan and Iraq, and in peacekeeping missions around the world, the international community continues to struggle practically and conceptually with detention of belligerents. The struggle includes questions ranging from when individuals may be detained and for how long, to determining the applicable legal regime. While this myriad of issues is vexing, they are neither as new, nor the applicable law as lacking, as has been argued.

This chapter takes a pragmatic approach to detention and suggests that the 1949 Geneva Conventions and the 1977 Additional Protocols, outmoded …

Emerging Technology And Perfidy In Armed Conflict, Ian Henderson, Jordan Den Dulk, Angeline Lewis

International Law Studies

The rule against perfidy in armed conflict—one of the last echoes of honor and social order of war—is threatened by emerging technologies. Specifically, the employment of emerging technologies has muddied the already thin and grey line between acts which contravene the honor of warfare and legitimate ruses of war. In this article, the authors analyze perfidy, treachery and ruses of war as key concepts of international humanitarian law and consider their application to emerging technologies.

The Boundless War: Challenging The Notion Of A Global Armed Conflict Against Al-Qaeda And Its Affiliates, Andrew Beshai

Loyola of Los Angeles Law Review

The U.S. military response to the 9/11 attacks has expanded into a “global war” without a definite geographic scope. Both the Bush and Obama administrations have executed attacks in several countries including Somalia, Afghanistan, Pakistan, and Yemen under the “global war” paradigm. This Article challenges the concept of a global armed conflict, instead favoring the “epicenter-of-hostilities” framework for determining the legality of military action against Al-Qaeda, the Taliban, and other terrorist groups. This approach, rooted in established international law, measures the existence of specific criteria in each nation where hostile forces are present to determine if an armed conflict in …

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 …

Targeting “Islamic State” Oil Facilities, Kenneth Watkin

International Law Studies

In September 2014 the United States and Coalition partners conducted aerial attacks against several Islamic State-operated modular oil refineries in Syria. The Pentagon’s rationale is that the refineries provided fuel for Islamic State operations, money to finance continued attacks and constituted an economic asset to support future operations. Attacking the oil production facilities to stop the sale of smuggled oil, the proceeds of which “fuel” Islamic State activities is potentially controversial. Additional Protocol I limits attacks to those objects that “make an effective contribution to military action.” The U.S. position is that “war-sustaining objects” may also be lawfully targeted, thus …

1907 Hague Convention Viii Relative To The Laying Of Automatic Submarine Contact Mines, Steven Haines

International Law Studies

This article places 1907 Hague Convention VIII in its historical context, examines its content, summarizes State practice since 1907 (including during the two World Wars) and discusses the Convention’s relevance to contemporary mine warfare. The Convention has inherent shortcomings, has never been strictly applicable in any war since 1907, and is not strictly relevant to anything other than automatic contact mines (effectively excluding modern influence mines). Despite this—and a paucity of substantial State practice since 1945—the conclusion is that the Convention has influenced the customary law on sea-mines. When that custom was combined with other relevant custom (particularly that pertaining …

The Us And Human Rights: A Federalist Society Debate, Peter Margulies

Law Faculty Scholarship

No abstract provided.

A Reply To Wittes On The United States And Extraterritoriality, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Extraterritoriality And Human Rights: Time For A Change In The U.S. View?, 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

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.

Book Review Of The Verdict Of Battle: The Law Of Victory And The Making Of Modern War, Robert D. Sloane

Faculty Scholarship

This is a brief review of The Verdict of Battle: The Law of Victory and the Making of Modern War (2012), by James Q. Whitman, a remarkably erudite and original contribution to scholarship on military history and the law of war. It sketches the work’s compelling historical arguments and then critiques its (comparatively modest) polemical dimensions and normative conclusions.

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

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

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.

Comments On George K. Walker Paper State Practice Following World War Ii, 1945-1990, L. C. Green

International Law Studies

No abstract provided.

Comments On Sally V. And W. Thomas Mallison's Paper: The Naval Practices Of Belligerents In World War Ii: Legal Criteria And Developments, M. W. Janis

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

International Law Studies

No abstract provided.