Military, War, and Peace Commons^™

Maritime Incidents In The South China Sea: Measures Of Law Enforcement Or Use Of Force?, Aurel Sari

International Law Studies

China has sought to extend its control over the South China Sea at the expense of neighboring countries. In pursuing its goals, Beijing adopts a “power and law” approach, claiming extensive territorial and maritime rights in contravention of the UN Convention on the Law of the Sea and asserting these rights through coercive action in disputed waters. A key element of China’s strategy involves the use of coast guard and maritime militia vessels in an effort to portray its operations as measures of law enforcement, rather than displays of coercive power.

This article argues that the Chinese narrative of law …

Narrowing “The Gap”: Counter Gray Zone Operations, Raul (Pete) Pedrozo

International Law Studies

China is exploiting "The Gap" by conducting provocative Gray Zone operations to challenge its neighbors' sovereignty and sovereign rights, as well as their navigational rights and freedoms, in waters off their coast in the East China Sea, Taiwan Strait, and South China Sea. By engaging in malign activities that fall below the threshold of an "armed attack," China anticipates it can incrementally advance its interests without eliciting a military response from the targeted States. Diplomatic protests and third-party dispute settlement have not convinced China to halt its aggressive behavior. This article suggests States should use non-lethal counter-piracy tactics, techniques, and …

Double Classification Of Non-Consensual State Interventions: Magic Protection Or Pandora’S Box?, Pauline Lesaffre

International Law Studies

The classification under international humanitarian law of certain cross-border armed conflicts against an organized armed group remains controversial. More specifically, cross-border armed conflicts resulting from a non-consensual State intervention, such as the United States’ intervention in Syria (without Syrian consent) against the Islamic State, still divide legal scholarship regarding their appropriate classification. One theory argues for a single classification of non-international armed conflict between the intervening State and the organized armed group; another theory relies on a double classification of non-consensual State interventions, adding to the non-international armed conflict an international armed conflict between the intervening State and the territorial …

The Prohibition On Intervention Under International Law And Cyber Operations, Ori Pomson

International Law Studies

Given that cyber technologies have made way for attempts to influence the affairs of other States in novel and unique ways, scholars have turned to the international legal rule which is prima facie most relevant in addressing such meddling; namely, the prohibition on intervention. Moreover, there appears to be quite a wide-ranging consensus in scholarship that the prohibition on intervention applies to a broad range of cyber operations. In contrast to such scholarship, this article argues that, under the lex lata, the prohibition on intervention only applies to acts amounting to a use of force or constituting support for …

Military Action To Recover Occupied Land: Lawful Self-Defense Or Prohibited Use Of Force? The 2020 Nagorno-Karabakh Conflict Revisited, Tom Ruys, Felipe Rodriguez Silvestre

International Law Studies

In September 2020, heavy fighting erupted between Armenia and Azerbaijan in and around Nagorno-Karabakh, a region of Azerbaijan long controlled by Armenia. After two months of military confrontations, a tripartite ceasefire was concluded, drastically altering the pre-existing territorial status quo.

The "Second Nagorno-Karabakh War" brings to light a fundamental question for international law on the use of force—and one that has received limited attention in legal doctrine. The question is this: when part of a State’s territory is occupied by another State for an extended period of time, can the former still invoke the right of self-defense to justify …

Legal Reviews Of War Algorithms, Tobias Vestner, Altea Rossi

International Law Studies

States and scholars recognize legal reviews of weapons, means or methods of warfare as an essential tool to ensure the legality of military applications of artificial intelligence (AI). Yet, are existing practices fit for this task? This article identifies necessary adaptations to current practices. For AI-enabled systems that are used in relation to targeting, legal reviews need to assess the systems’ compliance with additional rules of international law, in particular targeting law under international humanitarian law (IHL). This article discusses the procedural ramifications thereof. The article further finds that AI systems’ predictability problem needs to be addressed by the technical …

Ukraine V. The Russian Federation: Navigating Conflict Over Sovereignty Under Unclos, NilüFer Oral

International Law Studies

Following Russia’s annexation of Crimea in 2014, or according to Russia, its accession following a referendum, Ukraine brought several international cases against the Russian Federation, including two cases under Annex VII of UNCLOS: The Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait in 2016 and The Detention of Three Ukrainian Naval Vessels in 2019. At the center of these disputes is the conflict between Ukraine and Russia over sovereignty of Crimea. Russia contested jurisdiction in all cases invoking different exceptions under UNCLOS, including the argument that the dispute concerns sovereignty over Crimea and …

Command Accountability For Ai Weapon Systems In The Law Of Armed Conflict, James Kraska

International Law Studies

The use of artificial intelligence (AI) in weapon systems enhances the ability of operational forces to fuse multispectral sensors to understand the warfighting environment, positively identify, track, and select targets, and engage them with the most appropriate effects. The potential for AI to help close the “kill chain” has raised concern that this creates a gap in accountability between the decisions of humans and the acts of machines, with humans no longer accountable for decisions made during armed conflict. This study suggests that there is no gap because the military commander is always directly and individually accountable for the employment …

Encirclement, Deprivation, And Humanity: Revising The San Remo Manual Provisions On Blockade, Tom Dannenbaum

International Law Studies

Among the most pernicious trends in contemporary armed conflict is the return of mass starvation in war, in some cases as its primary source of human suffering. This has prompted a renewed focus on the relevant rules of international humanitarian law (IHL). On some issues, there is relative consensus. On the issue of deprivation by encirclement, however, there is confusion.

Some have questioned whether the prohibition on the starvation of civilians as a method of warfare applies to encirclements at all, particularly in the naval context. Others have interpreted the prohibition vanishingly narrowly. In contrast to the more extreme of …

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 …

Responding To Hostile Cyber Operations: The “In-Kind” Option, Michael N. Schmitt, Durward E. Johnson

International Law Studies

Facing hostile cyber operations, States are crafting responsive strategies, tactics and rules of engagement. One of the major challenges in doing so is that key aspects of the international law governing cyber responses are vague, unsettled or complex. Not surprisingly, therefore, international law is markedly absent from strategies and operational concepts. Rather, they tend to take on a practical “tit-for-tat” feel as policymakers logically view “in-kind” responses as “fair play.” For them, responding in-kind surely must be lawful notwithstanding any challenges in discerning the precise legal character of the initial hostile cyber operation.

Testing that sense, this article examines the …

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 …

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 …

Autonomous Cyber Capabilities And The International Law Of Sovereignty And Intervention, Michael N. Schmitt

International Law Studies

This article explores the intersection of autonomous cyber capabilities and two primary rules of international law—the respect for the sovereignty of other States and the prohibition on coercive intervention into another State's internal or external affairs. Of all the rules of international law, these are the likeliest to be violated through employment of cyber capabilities, whether autonomous or not. This raises the question of whether a cyber operation that involves autonomous capabilities presents unique issues with respect to the application of the two rules. The article concludes that while there are numerous unsettled issues surrounding their application to cyber operations, …

The Interplay Of International Obligations Connected To The Conduct Of Others: Toward A Framework Of Mutual Compliance Among States Engaged In Partnered Warfare, Berenice Boutin

International Law Studies

This article examines international obligations that arise in relation to the conduct of other States, and analyzes how they apply and interact in the context of partnered warfare. It investigates rules of State responsibility relevant to the context of partnered warfare, as well as primary norms that impose obligations connected to the conduct of others. In essence, they consist of obligations not to actively help to or to blindly let others do what a State would not do itself. It is argued that, taken together, these rules form the contour of an overarching framework of mutual compliance among States cooperating …

An Incident In The South China Sea, Rob Mclaughlin

International Law Studies

This article assesses characterization issues under the law of the sea, through the medium of an International Law Studies “maritime situation.” The article begins with a hypothetical scenario concerning an incident between a NATO warship and PRC vessels near Subi Reef and Thitu Island in the South China Sea. The analysis then turns to how we might assess characterization issues under the law of the sea as they apply to this incident. The lenses of analysis employed are: (1) Where, in law of the sea terms, did the incident happen? (2) Who, employing a law of the sea characterization scheme, …

Will Cyber Autonomy Undercut Democratic Accountability?, Ashley Deeks

International Law Studies

In recent years, legislative bodies such as the U.S. Congress and the U.K. Parliament have struggled to maintain a role for themselves in government decisions to conduct military operations against foreign adversaries. Some of these challenges arise from constitutional structures, but they are also due to the changing nature of conflict: a shift away from large-scale kinetic operations and toward smaller-scale operations—including cyber operations—that are less visible and that do not require robust legislative support. These modern operations leave legislatures to engage in ex post and sometimes ineffective efforts to hold their executive branches accountable for international uses of force …

Autonomous Cyber Capabilities Below And Above The Use Of Force Threshold: Balancing Proportionality And The Need For Speed, Peter Margulies

International Law Studies

Protecting the cyber domain requires speedy responses. Mustering that speed will be a task reserved for autonomous cyber agents—software that chooses particular actions without prior human approval. Unfortunately, autonomous agents also suffer from marked deficits, including bias, unintelligibility, and a lack of contextual judgment. Those deficits pose serious challenges for compliance with international law principles such as proportionality.

In the jus ad bellum, jus in bello, and the law of countermeasures, compliance with proportionality reduces harm and the risk of escalation. Autonomous agent flaws will impair their ability to make the fine-grained decisions that proportionality entails. However, a …

Release Of A Detained Warship And Its Crew Through Provisional Measures: A Comparative Analysis Of The Ara Libertad And Ukraine V. Russia Cases, Yoshifumi Tanaka

International Law Studies

The determination of whether to release a detained foreign warship and its crew is a crucial issue in law and in practice. This article examines the issue of the release of a detained foreign warship and its crewmembers through provisional measures by analyzing the ARA Libertad and Ukraine v. Russia cases. Specifically three issues must be examined. The first issue concerns the interpretation of military activities under Article 298(1)(b) of the U.N. Convention on the Law of the Sea (UNCLOS). On this issue, this article highlights that a threshold for deciding the preponderance of military or law enforcement elements is …

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 …

Dprk Maritime Sanctions Enforcement, Raul (Pete) Pedrozo

International Law Studies

The Democratic People’s Republic of Korea (DPRK) has been under U.N. sanctions since 2006 to dissuade the DPRK from continuing its nuclear weapons and ballistic missile programs. Nonetheless, the DPRK has evaded these sanctions, particularly through unlawful ship-to-ship transfers of refined petroleum products and coal. DPRK sanctions evasion, particularly as it relates to maritime activities, remains a critical issue that allows the DRPK government to continue its pursuit of nuclear weapons and its testing and amassment of ballistic missiles. Given the DPRK’s use of maritime tactics to evade sanctions, maritime interdiction is the most effective way to counter illicit DPRK …

The Legal Characterization Of Lethal Autonomous Maritime Systems: Warship, Torpedo, Or Naval Mine?, Hitoshi Nasu, David Letts

International Law Studies

With the rapid advances in autonomous navigation and artificial intelligence technology, naval industries are edging closer to the development of unmanned maritime platforms with lethal autonomous capability—lethal autonomous maritime systems (LAMS). The emergence of LAMS as a sui generis hybrid weapon system will almost certainly generate disagreement on their legal status. Currently, there is no agreement among States as to whether LAMS should legally be characterized as warships or other means of warfare, such as torpedoes and naval mines. This lack of certainty represents a significant deficiency with potential strategic and operational implications if left unresolved. To assist States in …

Smart Language: How To Address An Inherent Weakness Undermining The Implementation Of U.N. Sanctions On North Korea, Maiko Takeuchi

International Law Studies

Since 2006, the U.N. has adopted ten sanction resolutions against North Korea (The Democratic People’s Republic of Korea or DPRK) to date. While these sanctions appear comprehensive, the DPRK is still advancing its nuclear and ballistic missile programs and continuing relevant procurement, according to the U.N. 1874 Panel of Experts, which monitors the implementation of these sanctions. There are constant discussions on how to improve the U.N. Member States’ implementation of the resolutions. However, the shortcomings of the language of the resolutions often is overlooked and should be examined, as these shortcomings frustrate effective implementation by U.N. Member States. After …

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, …

The Unlawfulness Of A “Bloody Nose Strike” On North Korea, Kevin Jon Heller

International Law Studies

The United States has reportedly been debating whether to "react to some nuclear or missile test with a targeted strike against a North Korean facility to bloody Pyongyang’s nose and illustrate the high price the regime could pay for its behavior." This article asks a simple question: would such a “bloody nose strike” (BNS) violate the jus ad bellum?

Providing a coherent answer is complicated by the lack of clarity surrounding the United States’ planning. In particular, the U.S. government has not specified what kind of provocation it believes would justify launching a BNS, has not identified precisely what …

Twelve Key Questions On Self-Defense Against Non-State Actors, Terry D. Gill, Kinga Tibori-Szabó

International Law Studies

This article examines the most pertinent questions relating to the applicability of the right of self-defense to attacks conducted by non-State armed groups (NSAGs) acting independently of State control from the territory of one or more States against the territory of another State. These questions are approached from the perspective of legality (does the right of self-defense apply to attacks not mounted by or under the control of a State) and modality (assuming the applicability of self-defense to such attacks; how do the principles of necessity, proportionality and immediacy affect its application)? Starting with an assessment of the place of …

Adverse Cyber Operations: Causality, Attribution, Evidence, And Due Diligence, Hans-Georg Dederer, Tassilo Singer

International Law Studies

Adverse cyber operations against States are on the rise, and so are the legal challenges related to such incidents under public international law. This article will not delve into already intensely debated problems of classification, such as whether adverse cyber operations constitute “armed attacks” or “use of force.” Rather, the article will focus on causality and attribution with special regard to problems of evidence. In particular, the article will elaborate on the applicable standards of proof to be met by the victim State when submitting, or having to submit, evidence to justify self-defense or countermeasures against the State of origin. …