Law Commons^™

Does International Humanitarian Law Confer Undue Legitimacy On Violence In War?, Kieran R.J. Tinkler

International Law Studies

International humanitarian law is lauded as a civilizing force that seeks to limit the effects of war for humanitarian reasons. There is, however, an increasing sense that IHL has facilitated rather than restrained military operations by conferring undue legitimacy on violence in war. This article focuses on the nature of the relationship between legitimacy and IHL to ascertain whether this is indeed the case. It concludes that, while IHL alone cannot confer "normative legitimacy" on battlefield conduct, it does frame "empirical legitimacy." Whether such legitimacy is unwarranted is, ultimately, best judged by reference to morality. Yet insistence on the pre-eminence …

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 …

Manual On International Humanitarian Law For The Armed Forces Of The Russian Federation (2002)

International Law Studies

A translation of the Manual on International Humanitarian Law for the Armed Forces of the Russian Federation, 2002, by Aleksei Romanovski. This translation was originally published as Appendix 1 in Evan J. Wallach, The Law of War in the 21st Century (2017).

Fault Lines In The Application Of International Humanitarian Law To Cyberwarfare, Humna Sohail

Journal of Digital Forensics, Security and Law

The dynamics of warfare have changed from the conventional wars fought on the battlefield to virtual warfare as states have been involved in the cyber arms race. From simple distributed denial-of-service (DDoS) attacks to the potent Stuxnet and Flame the cyber weapons vary in their potential human cost. The Law of Armed Conflict (LOAC) is drafted flexibly to adapt to changing circumstances. This paper is primarily based upon the assumption that existing treaty law is sufficient in many aspects yet in some areas treaty-making is also needed. What is the foreseeable solution is the comprehensive state practice for interpreting the …

Prologue, Claudio Grossman, Robert K. Goldman

American University International Law Review

We are pleased to write this prologue for the special issue of the American University International Law Review featuring the winning papers from the 2021 Human Rights Essay Award, sponsored by the Academy on Human Rights and Humanitarian Law of American University Washington College of Law.

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 …

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 …

The International Law Of Prolonged Sieges And Blockades: Gaza As A Case Study, Eyal Benvenisti

International Law Studies

In 2007, after Hamas’ takeover of the Gaza Strip, the area was subjected to an Israeli land siege, complemented in 2009 by a sea blockade. Since then, the already-dire living conditions in the Strip have declined consistently and the area’s dependence on external aid has grown. This essay examines the duties of a military power in imposing what is effectively a years-long confinement of people and outlines a general argument for expanding the obligations of a party that imposes a prolonged siege or blockade. I consider these obligations in light of three potentially relevant legal frameworks: the law of occupation; …

Human Rights In The Light Of International Opportunism: A Study Of The Impact Of The War On Terrorism On Human Rights

UAEU Law Journal

International terrorism reached its peak on September 11, 2001 when four civilian airplanes were hijacked and hit the World Trade Centre in New York and part of the Pentagon in Washington D.C. Such attacks were considered a serious challenge for contemporary societies which called on their military, economic, and political might to declare an open war against international terrorism. This so-called counter terrorism war emerged to shape the new world order. Such war was accompanied by gross violations of public international law, the international human rights law and the international humanitarian law. In fact, some opportunistic régimes found it a …

Protection Of Data In Armed Conflict, Robin Geiss, Henning Lahmann

International Law Studies

This article presents a novel way to conceptualize the protection of data in situations of armed conflict. Although the question of the targeting of data through adversarial military cyber operations and its implications for the qualification of such conduct under International Humanitarian Law has been on scholars’ and states’ radar for the last few years, there remain a number of misunderstandings as to how to think about the notion of “data.” Based on a number of fictional scenarios, the article clarifies the pertinent terminology and makes some expedient distinctions between various types of data. It then analyzes how existing international …

The Status Of International Treaty In The United Arab Emirates Constitution, Wael Allam

UAEU Law Journal

Like other countries, the United Arab Emirates (UAE) needs to enter into treaties to regulate its relations with States and the international community. Indeed, the UAE is a party to several international treaties in several areas; including labor, human rights, aviation, international humanitarian law, judicial cooperation, the fight against organized crime and human trafficking, etc. In light of the existence of these numerous international treaties concerning the UAE, the question arises about the status of international treaty in the United Arab Emirates; i.e., what is the binding force of the International Treaty in relation to other legal rules? What is …

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 …

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 …

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 International Committee Of The Red Cross: An Evaluation, Halil Rahman Basaran

Indonesian Journal of International Law

The International Committee of the Red Cross (ICRC) is explicitly mentioned in the 1949 Geneva Conventions and the 1977 Additional Protocols thereto. These explicit references to the ICRC entail respect for and recognition of the ICRC as the oldest humanitarian institution. However, this explicitness does not imply, suggest or confirm legal superiority of the ICRC over other humanitarian institutions, nor does it make the ICRC the exclusive humanitarian organization. Humanitarian assistance can be legally and legitimately undertaken by other humanitarian organizations as well. The practical influence of the ICRC is greater than that of any other NGO. Arguably, the survival …

Artificial Intelligence And The Problem Of Autonomy, Simon Chesterman

Notre Dame Journal on Emerging Technologies

Artificial intelligence (AI) systems are routinely said to operate autonomously, exposing gaps in regulatory regimes that assume the centrality of human actors. Yet surprisingly little attention is given to precisely what is meant by “autonomy” and its relationship to those gaps. Driverless vehicles and autonomous weapon systems are the most widely studied examples, but related issues arise in algorithms that allocate resources or determine eligibility for programs in the private or public sector. This article develops a novel typology of autonomy that distinguishes three discrete regulatory challenges posed by AI systems: the practical difficulties of managing risk associated with new …

Armed Groups And The Protection Of Health Care, Ezequiel Heffes

International Law Studies

That armed groups have been responsible for attacks against health care personnel and for violating the protection of health care is not news. This is one of the greatest humanitarian challenges of contemporary armed conflict. Armed groups, however, have also attempted to evacuate and treat wounded enemy fighters and civilians and, in certain contexts, they have even provided health care services for the civilian population living in the territories under their control. This article describes some of the key issues related to the variation of armed groups’ behaviors when dealing with the protection of health care, inquiring into why some …

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 …

International Humanitarian Law And The Targeting Of Data, Tim Mccormack

International Law Studies

The 2013 publication of the Tallinn Manual on the International Law Applicable to Cyber Warfare confirmed the view of the majority of the international group of experts that data was not an object and therefore not subject to the rules of targeting during an armed conflict. Intuitively, a number of scholars reacted negatively to this view, and instead were drawn to the Tallinn Manual minority position that data did constitute an object. The significance of data, particularly personal data, is only increasing, and the purpose of the law of armed conflict is to reduce the deleterious impact of armed conflict …

The Updated Icrc Commentary On The Second Geneva Convention: Demystifying The Law Of Armed Conflict At Sea, Bruno Demeyere, Jean-Marie Henckaerts, Heleen Hiemstra, Ellen Nohle

International Law Studies

Since their publication in the 1950s and 1980s respectively, the Commentaries on the Geneva Conventions of 1949 and their Additional Protocols of 1977 have become a major reference for the application and interpretation of those treaties. The International Committee of the Red Cross, together with a team of renowned experts, is currently updating these Commentaries in order to document developments and provide up-to-date interpretations of the treaty texts. Following a brief overview of the methodology and process of the update as well as a historical background to the Second Geneva Convention, this article addresses the scope of applicability of the …

The International Legal Implications Of Military Space Operations: Examining The Interplay Between International Humanitarian Law And The Outer Space Legal Regime, Dale Stephens

International Law Studies

In the contemporary period, many military forces rely heavily on space-based assets to conduct operations across a wide spectrum of contexts. Such reliance necessarily exposes a correlative vulnerability that such assets may be degraded or destroyed, especially in a time of armed conflict. However, the legal framework that governs military action in space during a time of armed conflict is not well explored. This article examines the interaction between International Humanitarian Law (IHL) and the Outer Space legal regime. Harmonization of legal regimes is a goal of any reconciliation project, although such harmonization may not always be readily possible. In …

The Failure Of International Law In Palestine, Svetlana Sumina, Steven Gilmore

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Proportionality Under International Humanitarian Law: The "Reasonable Military Commander" Standard And Reverberating Effects, Ian Henderson, Kate Reece

Vanderbilt Journal of Transnational Law

The principle of proportionality protects civilians and civilian objects against expected incidental harm from an attack that is excessive to the military advantage anticipated from the attack. However, despite its status as a fundamental norm of international humanitarian law (IHL), key terms are not defined in relevant treaties nor do they benefit from critical judicial explanation. This has caused challenges for both academics and military commanders alike in explaining and applying the test for proportionality.

The Article expands upon two points that were raised and generated interesting discussion at The Second Israel Defense Forces International Conference on the Law of …

Construction Of A Terrorist Under The Material Support Statute, 18 U.S.C § 2339b, Jordan E. Helton

American University Law Review

No abstract provided.

The Evolution And Identification Of The Customary International Law Of Armed Conflict, Sir Michael Wood

Vanderbilt Journal of Transnational Law

Despite the many widely ratified treaties on the law of armed conflict (LOAC, also referred to as international humanitarian law (IHL)), customary international law remains of great importance in this branch of international law. So far as concerns international armed conflicts, customary international humanitarian law (CIHL) is of special importance in connection with states not party to Additional Protocol I of 1977. So far as concerns non-international armed conflicts, CIHL is of crucial importance for all states, since, for the most part, treaty provisions are rudimentary. The International Court of Justice has also had occasion to state that "a great …

Enemy-Controlled Battlespace": The Contemporary Meaning And Purpose Of Additional Protocol I'S Article 44(3) Exception, Kubo Macak, Michael N. Schmitt

Vanderbilt Journal of Transnational Law

The contemporary propensity for, and risk of, armed conflict taking place among the civilian population has cast a new light on several long-standing challenges to the application of international humanitarian law (IHL). One is the determination of combatant status and, more specifically, the question of when the requirement for the combatants to distinguish themselves from the civilian population may exceptionally be relaxed. In addressing this question, the Article re-examines Additional Protocol I's Article 44(3) and adopts an interpretation thereof that better comports with its object and purpose than those previously prevalent. After exposing the limitations of relying solely on drafting …

The Role Of Nonstate Entities In Developing And Promoting International Humanitarian Law, Dr. Knut Dormann

Vanderbilt Journal of Transnational Law

In recent years, both states and nonstate entities, the number of which has increased, have found ways to stimulate debate about how to interpret, apply, and clarify international humanitarian law (IHL). The development, interpretation, and clarification of IHL have largely occurred not so much through treaty making, but through other, non-legally binding avenues. There is a spectrum of such activity, ranging from state-driven processes aimed at producing non-legally binding outcomes, to hybrid processes involving states, independent experts, and various bodies. The International Committee of the Red Cross (ICRC) serves as a prominent actor in this regard, initiating ICRC-specific initiatives, expert …

Individual, Not Collective: Justifying The Resort To Force Against Members Of Non-State Armed Groups, Anthony Dworkin

International Law Studies

This article proposes an alternative to the conventional way of deciding when a State may target or detain members of an armed group. Instead of asking whether there is an armed conflict between the State and the group, this article argues that we should look at the State’s justification for the use of force against the group or its members. In a non-international context, this justification is rooted in human rights law. For this reason, the authorization for the resort to force operates on an individual basis, and the State is only justified in using force against individual members of …

The Conduct Of Hostilities And International Humanitarian Law: Challenges Of 21st Century Warfare, International Law Association Study Group On The Conduct Of Hostilities In The 21st Century

International Law Studies

The International Law Association Study Group on the Conduct of Hostilities in the 21st Century was established in 2011 and held its first meeting in 2012. The Study Group has explored numerous issues arising from the relationship between international humanitarian law (IHL) and international human rights law in the conduct of military operations, technological challenges posed by new weapons systems, and the basic principles of IHL in the conduct of hostilities. In 2015, the Study Group established three working groups focusing on core issues within IHL in relation to the conduct of hostilities in modern warfare. These working group topics …