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International Law Studies

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Exclusion Zones In The Law Of Armed Conflict At Sea: Evolution In Law And Practice, Sandesh Sivakumaran Apr 2016

Exclusion Zones In The Law Of Armed Conflict At Sea: Evolution In Law And Practice, Sandesh Sivakumaran

International Law Studies

This article analyses the changes in the law and practice of exclusion zones in the law of armed conflict at sea. It identifies three principal phases. First, it explores the exclusion zones of the Russo-Japanese War of 1904–1905, which were modest in size and defensive in character. Second, it turns to the exclusion zones of the First World War and several subsequent conflicts. The exclusion zones of this period were fundamentally different to those of the Russo-Japanese war: if a vessel was within an exclusion zone, it was deemed susceptible to attack. The article then turns to the third phase …

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Off Target: Selection, Precaution, And Proportionality In The Dod Manual, Adil Ahmad Haque Jan 2016

Off Target: Selection, Precaution, And Proportionality In The Dod Manual, Adil Ahmad Haque

International Law Studies

The United States Department of Defense Law of War Manual misrepresents customary international law governing target selection, precautions in attack and proportionality. Contrary to the Manual’s assertions, attackers with a choice of targets for obtaining a similar military advantage must select the target that endangers the fewest civilians; often must avoid harming civilians even at some additional risk to themselves or to their mission; and must refrain from attack if the expected harm to civilians—including to civilians forced to serve as human shields—would be excessive in relation to the anticipated military advantage.

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The Dod Law Of War Manual And Its Critics: Some Observations, Charles J. Dunlap Jr. Jan 2016

The Dod Law Of War Manual And Its Critics: Some Observations, Charles J. Dunlap Jr.

International Law Studies

The U.S. Department of Defense’s (DoD) new Law of War Manual has generated serious debate about its treatment of a variety of issues including human shields, the status of journalists, cyber operations, the precautions to be taken prior to attacks and even the role of honor in war. Although this article does not purport to be a comprehensive response to every critique of the Manual and, indeed, cites opportunities for its improvement, it nevertheless concludes that on balance the Manual provides an excellent, comprehensive and much-needed statement of DoD’s view of the lex lata of the law of war.

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The Combatant’S Stance: Autonomous Weapons On The Battlefield, Jens David Ohlin Jan 2016

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 …

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Twenty Seconds To Comply: Autonomous Weapon Systems And The Recognition Of Surrender, Robert Sparrow Oct 2015

Twenty Seconds To Comply: Autonomous Weapon Systems And The Recognition Of Surrender, Robert Sparrow

International Law Studies

Would it be ethical to deploy autonomous weapon systems (AWS) if they were unable to reliably recognize when enemy forces had surrendered? I suggest that an inability to reliably recognize surrender would not prohibit the ethical deployment of AWS where there was a limited window of opportunity for targets to surrender between the launch of the AWS and its impact. However, the operations of AWS with a high degree of autonomy and/or long periods of time between release and impact are likely to remain controversial until they have the capacity to reliably recognize surrender.

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Protecting Cultural Property In Non-International Armed Conflicts: Syria And Iraq, Louise Arimatsu, Mohbuba Choudhury Oct 2015

Protecting Cultural Property In Non-International Armed Conflicts: Syria And Iraq, Louise Arimatsu, Mohbuba Choudhury

International Law Studies

The deliberate destruction by ISIS of religious and cultural property in both Syria and Iraq sparked widespread international condemnation and was described by UNESCO’s Director-General as constituting war crimes. Regrettably, the damage to and destruction of such property has become an all too common feature of the conflicts that have engulfed both States. The authors examine the legal obligations that apply to the parties in non-international armed conflict and the consequences of non-compliance. In light of the scale of the human suffering engendered by the conflicts, the authors first ask why international law protects such property in armed conflict.

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Regulation-Tolerant Weapons, Regulation-Resistant Weapons And The Law Of War, Sean Watts Aug 2015

Regulation-Tolerant Weapons, Regulation-Resistant Weapons And The Law Of War, Sean Watts

International Law Studies

The historical record of international weapons law reveals both regulation-tolerant weapons and regulation-resistant weapons, identifiable by a number of criteria, including effectiveness, novelty, deployment, medical compatibility, disruptiveness and notoriety. This article identifies these criteria both to explain and inform existing weapons law, and also to facilitate efforts to identify weapons and emerging technology that may prove susceptible to future law of war regulation. By charting both the history and methodology of weapons law with a view toward identifying forces and influences that have made some weapons susceptible to international regulation and made others resistant, this article offers a starting point …

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Emerging Technologies And Loac Signaling, Eric Talbot Jensen Aug 2015

Emerging Technologies And Loac Signaling, Eric Talbot Jensen

International Law Studies

As States seek to weaponize new technologies such as robotics, cyber tools and nanotechnology, the current law of armed conflict (LOAC) that guides the employment of existing weapons will signal rules and principles that should guide national decisions on what new technologies to weaponize and how to do so in a way that ensures compliance with battlefield regulation. LOAC has served this "signaling" function historically with respect to innovative weapon systems such as balloons, submarines, airplanes, and nuclear weapons, and will continue to do so as nations look forward to potentially weaponizing emerging technologies.

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Disguising A Military Object As A Civilian Object: Prohibited Perfidy Or Permissible Ruse Of War?, Kevin Jon Heller Aug 2015

Disguising A Military Object As A Civilian Object: Prohibited Perfidy Or Permissible Ruse Of War?, Kevin Jon Heller

International Law Studies

A number of scholars have claimed that it is inherently perfidious to kill an enemy soldier by disguising a military object as a civilian object. This essay disagrees, noting that conventional and customary IHL deem at least five military practices that involve making a military object appear to be a civilian object permissible ruses of war, not prohibited acts of perfidy: camouflage, ambush, cover, booby-traps, and landmines. The essay thus argues that attackers are free to disguise a military object as a civilian object as long as the civilian object in question does not receive special protection under international humanitarian …

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Nanotechnology And The Future Of The Law Of Weaponry, Hitoshi Nasu Jul 2015

Nanotechnology And The Future Of The Law Of Weaponry, Hitoshi Nasu

International Law Studies

Novel applications of nanotechnology for military purposes are expected to have a transformative impact on the way in which wars can be fought in the future battlespace, with the potential to drive changes to the law of weaponry. This article considers the potential of military applications of nanotechnology to bring changes to the existing principles and rules of weapons law. It specifically focuses on the likelihood that more sophisticated, miniaturized and tailored weapons and weapon systems will be produced that enable mechanical precision of targeting with no or few civilian casualties.

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Emerging Technology And Perfidy In Armed Conflict, Ian Henderson, Jordan Den Dulk, Angeline Lewis Jul 2015

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.

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The Law Of Naval Warfare And China’S Maritime Militia, James Kraska, Michael Monti Jul 2015

The Law Of Naval Warfare And China’S Maritime Militia, James Kraska, Michael Monti

International Law Studies

China operates a vast network of fishing vessels that form a maritime militia equipped and trained to conduct intelligence, communications, and targeting support for the People's Liberation Army Navy. Fishing vessels normally are exempt from capture or attack in the law of naval warfare unless they are integrated into the naval forces, but distinguishing between legitimate fishing vessels and maritime militia during naval warfare is virtually impossible.

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Russia’S Annexation Of Crimea: The Mills Of International Law Grind Slowly But They Do Grind, Robin Geiss Jun 2015

Russia’S Annexation Of Crimea: The Mills Of International Law Grind Slowly But They Do Grind, Robin Geiss

International Law Studies

In her speech at the Munich Security Conference in February 2015, Chancellor Angela Merkel unwaveringly said: “Europe’s borders are and will remain unalterable.” At the same time, however, most observers agree that Crimea will remain de facto under Russian control. Against this backdrop the article assesses the contemporary and possible future legal status of Crimea. Particular attention is given to the inseparability of the link between Russia’s unlawful use of force and the purported territorial status alteration of Crimea, the concept of remedial secession and Crimea’s current status as an occupied territory.

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The Combatant Status Of The “Little Green Men” And Other Participants In The Ukraine Conflict, Shane R. Reeves, David Wallace Jun 2015

The Combatant Status Of The “Little Green Men” And Other Participants In The Ukraine Conflict, Shane R. Reeves, David Wallace

International Law Studies

As an occupation and a civil war are simultaneously taking place in Ukraine a particularly vexing international law question is presented: what is the legal status of those involved in the hostilities? This article is designed to answer that question and to identify the associated rights, duties and responsibilities of the participants in the conflict.

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Conflict Classification In Ukraine: The Return Of The “Proxy War”?, Robert Heinsch May 2015

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 …

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Regulating Hostilities In Non-International Armed Conflicts: Thoughts On Bridging The Divide Between The Tadić Aspiration And Conflict Realities, Geoffrey S. Corn May 2015

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 …

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Law, Rhetoric, Strategy: Russia And Self-Determination Before And After Crimea, Christopher J. Borgen May 2015

Law, Rhetoric, Strategy: Russia And Self-Determination Before And After Crimea, Christopher J. Borgen

International Law Studies

The article considers how and why Russia has used international legal arguments concerning self-determination in relation to its intervention in Ukraine. Of what use is legal rhetoric in the midst of politico-military conflict? The article reviews the laws of self-determination and territorial integrity and considers Russia’s changing arguments concerning these concepts over the cases of Kosovo, South Ossetia, and Ukraine. Inasmuch as international law is the vocabulary and the grammar of modern diplomacy, States may use legal rhetoric with multiple audiences in mind. While the shifts in Russia’s arguments may be due to strategic needs in specific conflicts, the legal …

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State Opinio Juris And International Humanitarian Law Pluralism, Michael N. Schmitt, Sean Watts May 2015

State Opinio Juris And International Humanitarian Law Pluralism, Michael N. Schmitt, Sean Watts

International Law Studies

International humanitarian law has developed through a pluralistic process. Its history reveals a pattern of rough proportionality between State opinio juris and non-State expressions of law. These diverse sources have maintained a respectable yet realistic balance between humanity and military necessity. However, current IHL dialogue presents a stark contrast to the vibrant and pluralistic exchanges of the past. The substantive input of non-State actors such as non-governmental organizations, tribunals, and scholars far outpaces the work of States. Parity of input, especially in quantitative terms, is surely too much to demand and surely not necessary given the special status of State …

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Authorization Versus Regulation Of Detention In Non-International Armed Conflicts, Ryan Goodman May 2015

Authorization Versus Regulation Of Detention In Non-International Armed Conflicts, Ryan Goodman

International Law Studies

What does the law of armed conflict say about detention in non-international armed conflict? Is the law “utterly silent,” as some contend, with respect to the grounds for detention—regulating who may be confined and for what status or behavior? And do the in bello rules provide a source of affirmative authority that empowers belligerents to engage in detention? How those questions are resolved and, in particular, the basis for reaching the conclusions may have unintended consequences for the regulation of warfare. This article contends that the laws of war regulate the grounds for detention but do not authorize detention in …

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Is There A Way Out Of The Non-International Armed Conflict Detention Dilemma?, Gabor Rona Feb 2015

Is There A Way Out Of The Non-International Armed Conflict Detention Dilemma?, Gabor Rona

International Law Studies

Detention in non-international armed conflicts (NIACs, or wars fought between States and non-State armed groups) is a time-honored military and humanitarian necessity. And yet, the principles of sovereignty, the texts of the law of armed conflict and international human rights law and the historical record leave little doubt: international law recognizes no inherent detention power in such wars. As long as NIACs were purely internal civil wars, there was little basis to question the exclusive role of domestic law in regulating detention of the enemy. With the advent of transnational NIACs, such as the war in Afghanistan involving multi-national forces …

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Defensive Force Against Non-State Actors: The State Of Play, Monica Hakimi Jan 2015

Defensive Force Against Non-State Actors: The State Of Play, Monica Hakimi

International Law Studies

This article assesses the implications of the current Syria situation for the international law on the use of defensive force against non-State actors. The law in this area is highly unsettled, with multiple legal positions in play. After mapping the legal terrain, the article shows that the Syria situation accentuates three preexisting trends. First, the claim that international law absolutely prohibits the use of defensive force against non-State actors is increasingly difficult to sustain. States, on the whole, have supported the operation against the so-called Islamic State in Syria. Second, States still have not coalesced around a legal standard on …

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Autonomous Weapons And International Humanitarian Law: Advantages, Open Technical Questions And Legal Issues To Be Clarified, Marco Sassoli Dec 2014

Autonomous Weapons And International Humanitarian Law: Advantages, Open Technical Questions And Legal Issues To Be Clarified, Marco Sassoli

International Law Studies

This contribution argues that autonomous weapons systems may have advantages from the perspective of ensuring better respect for international humanitarian law (IHL). This may be the case if they are one day capable of perceiving the information necessary to comply with IHL, can apply IHL to that information, and if it can be ensured that they will not deviate from the ways in which humans have programmed them. In the view of the author, targeting decisions do not require subjective value judgments a machine would be unable to make. In order to ensure IHL is respected with regard to use …

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Mind The Gap: Can Developers Of Autonomous Weapons Systems Be Liable For War Crimes?, Tim Mcfarland, Tim Mccormack Dec 2014

Mind The Gap: Can Developers Of Autonomous Weapons Systems Be Liable For War Crimes?, Tim Mcfarland, Tim Mccormack

International Law Studies

A recurrent response to the development of increasingly autonomous weapons systems involves questions of accountability for serious violations of the law of armed conflict. Opinion is divided across a spectrum ranging from claims of an accountability vacuum and consequent calls for a complete ban to assertions that the weapons will present no new challenges and that the existing legal framework is capable of adaptation to emerging technologies. This article focuses on the expanded role played by developers of autonomous weapons systems. It describes the novel contributions made by developers of these advanced systems that raise the potential for them to …

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Adapting The Law Of Armed Conflict To Autonomous Weapon Systems, Kenneth Anderson, Daniel Reisner, Matthew Waxman Dec 2014

Adapting The Law Of Armed Conflict To Autonomous Weapon Systems, Kenneth Anderson, Daniel Reisner, Matthew Waxman

International Law Studies

As increasingly automated—and in some cases fully autonomous—weapon systems enter the battlefield or become possible, it is important that international norms to regulate them head down a path that is coherent and practical. Contrary to the claims of some advocates, autonomous weapon systems are not inherently illegal or unethical. The technologies involved potentially hold promise for making armed conflict more discriminating and causing less harm on the battlefield. They do pose great challenges, however, with regard to law of armed conflict rules regulating the use of weapons. To adapt existing law to meet those challenges, we propose a three-tiered approach …

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Minelaying And The Impediment Of Passage Rights, Wolff Heintschel Von Heinegg Dec 2014

Minelaying And The Impediment Of Passage Rights, Wolff Heintschel Von Heinegg

International Law Studies

Since their first extensive use in the 1904–05 Russo-Japanese War naval mines have continued to pose a considerable threat to innocent shipping. States reacted by adopting the 1907 Hague Convention VIII, which has been the only international instrument on the matter to date. In view of the fact that more than 80 percent of imports and exports are shipped by sea, freedom of navigation and, in particular, transit and archipelagic sea lanes passage rights must be preserved to the greatest extent possible. The present article deals with the question of whether international rules and principles provide effective protection of international …

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Targeting “Islamic State” Oil Facilities, Kenneth Watkin Oct 2014

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 …

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Military Activities In The Exclusive Economic Zone: East Asia Focus, Raul (Pete) Pedrozo Oct 2014

Military Activities In The Exclusive Economic Zone: East Asia Focus, Raul (Pete) Pedrozo

International Law Studies

In August 2014, a Chinese fighter aggressively intercepted a U.S. Navy surveillance plane over the South China Sea. This incident once again raises the issue of the legality of conducting military activities in and over the exclusive economic zone (EEZ) without coastal State notice or consent. All nations have a right under international law to conduct military activities in foreign EEZs. The article discusses the legal bases for conducting these activities and reviews some of the more prominent arguments used by States that purport to regulate such activities in the EEZ. It concludes that the right to engage in military …

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1907 Hague Convention Viii Relative To The Laying Of Automatic Submarine Contact Mines, Steven Haines Oct 2014

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 …

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Beyond Hague Viii: Other Legal Limits On Naval Mine Warfare, David Letts Oct 2014

Beyond Hague Viii: Other Legal Limits On Naval Mine Warfare, David Letts

International Law Studies

Legal texts and scholarly articles that deal with the topic of naval mine warfare typically do so by reference to Hague Convention VIII of 1907 and customary international law. Little comment, if any, is usually made in relation to the variety of other legal regimes that might impact upon the use of naval mines in armed conflict. This article seeks to redress that imbalance by examining, with a focus on the jus in bello, a range of legal considerations arising from more contemporary sources that affect the use of naval mines in international armed conflict.

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The Law Applicable To Naval Mine Warfare In A Non-International Armed Conflict, Rob Mclaughlin Oct 2014

The Law Applicable To Naval Mine Warfare In A Non-International Armed Conflict, Rob Mclaughlin

International Law Studies

There are very few instruments and very few cases, which describe how the law in relation to naval mine warfare applies within non-international armed conflict contexts. Additionally, since 1945, there has been relatively limited State practice. Working out what the law applicable to naval mine warfare in NIAC situations might look like today thus requires some recourse to the pre-World War II scheme designed to accommodate and characterize maritime activity by rebels, insurgents, and belligerents in conflict with their State. This article proposes for discussion a set of “rules” that attempt to incorporate and update elements of this customary scheme …

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