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Parameters Spring 2024, Usawc Press

The US Army War College Quarterly: Parameters

No abstract provided.

From The Editor In Chief, Antulio J. Echevarria Ii

The US Army War College Quarterly: Parameters

Welcome to the Spring 2024 issue of Parameters. Readers will note a few differences in the formatting for this issue: we are now using endnotes instead of footnotes to facilitate switching from pdf to html via Adobe's Liquid App; also, readers will be able to click on each endnote number to view the full endnote and then switch back to the text to resume reading. Please drop us a note to let us know how you like the changes. More are coming!

International Law, Self-Defense, And The Israel-Hamas Conflict, Eric A. Heinze

The US Army War College Quarterly: Parameters

This article examines the international law of self-defense as it applies to the ongoing Israel-Hamas conflict to determine whether the October 2023 attacks by Hamas against Israel can be interpreted under Article 51 of the UN Charter as an “armed attack” that gives Israel the right to use military force in self-defense against non-state actors. It situates the conflict within ongoing legal and political debates, shows how this conflict fits into a changing global reality where the most dangerous security threats do not exclusively emanate from other states and concludes that Israel’s resort to force in the current conflict appears …

“Unwilling Or Unable”, Lucy V. Jordan

International Law Studies

Critics of the unwilling or unable doctrine suggest that it could undermine the United Nations collective security system and argue that it requires an unacceptable ceding of a State’s territorial sovereignty. Increased reliance on the doctrine following the terrorist attacks of 9/11, particularly in relation to the use of force against ISIL in Syria since 2014, has caused the doctrine to face significant scrutiny. The purpose of this article is to ascertain whether the unwilling or unable doctrine has reached customary international law status. If found to be the case, the doctrine would confirm the right of States to act …

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 …

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 …

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. …

Unilateral And Multilateral Preventive Self-Defense, Stéphanie Bellier

Maine Law Review

The governing principle of the collective security system created by the United Nations Charter in 19451 is the rule prohibiting the use of force in Article 2(4), which provides that "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purpose of the United Nations." This rule prohibiting the use of force was considered revolutionary at the time because it transformed into international law ideas which had for centuries, if not millennia, preoccupied the minds of people …

Some Remarks On Self-Defense And Intervention: A Reaction To Reading Law And Civil War In The Modern World, Josef Rohlik

Georgia Journal of International & Comparative Law

No abstract provided.

Desert And Avoidability In Self-Defence, François Tanguay-Renaud

François Tanguay-Renaud

Jeff McMahan rejects the relevance of desert to the morality of self-defense. In Killing in War he restates his rejection and adds to his reasons. We argue that the reasons are not decisive and that the rejection calls for further attention, which we provide. Although we end up agreeing with McMahan that the limits of morally acceptable self-defense are not determined by anyone’s deserts, we try to show that deserts may have some subsidiary roles in the morality of self-defense. We suggest that recognizing this might help McMahan to answer some unanswered questions to which his own position gives rise.

Syria: Can International Law Cope? Workshop Report, Christopher M. Ford

International Law Studies

The Stockton Center for the Study of International Law at the U.S. Naval War College and the Center for the Rule of Law at the U.S. Military Academy convened a three-day workshop in November 2015. The workshop sought to examine the question posed by its title: Can International Law Cope with the Situation in Syria? It is a question that has ramifications for the viability of international law well beyond the confines of events in Syria. This report surveys the key issues that were raised during the workshop and serves as an introduction to the articles that follow in this …

Japan’S 2015 Security Legislation: Challenges To Its Implementation Under International Law, Hitoshi Nasu

International Law Studies

Japan’s new security legislation, enacted on September 30, 2015 amid fierce debate over its constitutionality, is designed to enable a “seamless response” to any security situation that may arise. While public debate has been fixated on the re-interpretation of Article 9 of the Japanese Constitution, which underpins the theoretical foundation of this new legislation, there are also important international law issues that need to be addressed. After briefly reviewing the historical background leading to the adoption of the new security legislation and its contents, this article examines how the Self-Defense Force (SDF) can respond with the use of force to …

International Law, Legal Diplomacy, And The Counter-Isil Campaign: Some Observations, Brian Egan

International Law Studies

Speech as prepared for delivery by Brian Egan, Legal Adviser, U.S. Department of State; 110th Annual Meeting of the American Society of International Law Washington, DC, April 1, 2016

Discussion On Ideology And The Use Of Force, Larman C. Wilson, John Howell, Leslie Road

Georgia Journal of International & Comparative Law

No abstract provided.

Discussion On The Control And Sale Of Arms, Henry C. Lauerman, Robert E. Clute

Georgia Journal of International & Comparative Law

No abstract provided.

The Exculpatory Effect Of Self-Defense In State Responsibility, Gamal Moursi Badr

Georgia Journal of International & Comparative Law

No abstract provided.

Internal Colonialism And Humanitarian Intervention, M. Sornarajah

Georgia Journal of International & Comparative Law

No abstract provided.

The Doctrine Of Legitimate Defense, Jens Ohlin

International Law Studies

The following article reorients mainstream conceptions of self-defense by defending a broader doctrine of legitimate defense that, in limited circumstances, justifies unilateral intervention. The source of the doctrine is natural law, which was explicitly incorporated into the text of UN Charter Article 51. The effect of this incorporation was to preserve, as a carve-out from the prohibition against force in Article 2, the natural law rights of defensive force. Specifically, the Article concludes that defensive force under natural law included, in extreme situations, a right of intervention in rogue States that refused to comply with natural law.

The Covert Use Of Drones: How Secrecy Undermines Oversight And Accountability, Milena Sterio

Law Faculty Articles and Essays

Under the Obama Administration, the number of drone strikes has sharply increased, prompting criticism and concern. As one commentator has noted, “[u]nder Obama, drone strikes have become too frequent, too unilateral, and too much associated with the heavy-handed use of American power.” Many scholars have focused on the legal issues arising from the use of drones, analyzing their legality under applicable law of self-defense, as well as under international humanitarian law and international human rights law.

This Article highlights another problematic aspect of the current American use of drones, which is secrecy. As will be argued below, because a large …

Charting The Legal Geography Of Non-International Armed Conflict, Michael N. Schmitt

International Law Studies

This article examines the geographical reach of international humanitarian law (law of armed conflict), particularly during armed conflicts between States and non-State organized armed groups. The issue is operationally critical, since to the extent that IHL applies, practices which are lawful during armed conflicts, such as status-based targeting, may be employed. When IHL does not apply, human rights obligations shouldered by the State govern the conduct of its military operations. The article surveys the various approaches to the the legal geography of non-international armed conflict, arguing that an interpretation by which IHL is not geographically restricted is the most supportable.

'Lesser Evils' In The War On Terrorism, Mark A. Drumbl

Mark A. Drumbl

No abstract provided.

Regulating Resort To Force: Form And Substance Of The Un Charter Regime, Matthew C. Waxman

Faculty Scholarship

Much of the international legal debate about regulating force and self-defence takes place on a substantive axis, focusing on the scope of force prohibitions and exceptions. This article instead focuses on their doctrinal form, or modes of argumentation and analysis through which facts are assessed in relation to legal directives, to illuminate how many of the assumptions about substantive policy goals and risks tend to be coupled with other assumptions about the way international law operates in this field. It shows that the flexible, adaptable standards favoured by some states, scholars, and other international actors and the fixed rules and …

Anticipatory Self-Defense And The Israeli-Iranian Crisis: Some Remarks, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Going Medieval: Targeted Killing, Self-Defense, And The Jus Ad Bellum Regime, Craig Martin

Craig Martin

The U.S. targeted killing policy employs drone-launched missiles to kill suspected terrorists and insurgents in countries in which the U.S. is not clearly involved in an armed conflict. It has justified the program on two bases: that the U.S. is in an armed conflict with Al Qaeda and associated organizations; and that the U.S. can engage in the strikes as an exercise of self-defence. These strikes constitute a use of force against the states in which the targets are located, in jus ad bellum terms, and the claim to the right of self-defence is similarly reliance upon a jus ad …

Rethinking Legality/Legitimacy After The Iraq War, Christine Chinkin

Book Chapters

My topic is legality and legitimacy after the Iraq war. I will start by problematizing the question. First, it is too limited. Why should the question be defined in terms of "after the Iraq war;' not after some other event such as the war in the Democratic Republic of the Congo where some four million people have died and where the health consequences of HIV/ AIDS will continue for generations? Events, even catastrophic events, from which powerful actors have remained aloof, have little visibility as key incidents in the evolution of international law. They are not deemed the "moments of …

The Threat Of Force As An Action In Self-Defense Under International Law, James A. Green, Francis Grimal

Vanderbilt Journal of Transnational Law

Self-defense is a universally accepted exception to the prohibition of the use of force in international law, and it has been subjected to careful academic scrutiny. The prohibition of the threat of force, although equally important in terms of its normative status to the prohibition on use, has attracted far less academic commentary to date. This Article examines the relationship between the two prohibitions--of the use and threat of force--and considers the largely unexplored possibility of states utilizing a threat of force as a means of lawful defensive response: self-defense in the form of a threat. The status of this …

Desert And Avoidability In Self-Defence, François Tanguay-Renaud

Articles & Book Chapters

Jeff McMahan rejects the relevance of desert to the morality of self-defense. In Killing in War he restates his rejection and adds to his reasons. We argue that the reasons are not decisive and that the rejection calls for further attention, which we provide. Although we end up agreeing with McMahan that the limits of morally acceptable self-defense are not determined by anyone’s deserts, we try to show that deserts may have some subsidiary roles in the morality of self-defense. We suggest that recognizing this might help McMahan to answer some unanswered questions to which his own position gives rise.

The Use Of Force Against States That Might Have Weapons Of Mass Destruction, Matthew C. Waxman

Michigan Journal of International Law

This Article argues that the most difficult future crises for which this legal debate is most consequential will not resemble those described by Prime Minister Thatcher or Director ElBaradei. Rather, in confronting potentially hostile and aggressive states believed to pose a WMD threat, decisionmakers contemplating the use of force will face an intelligence picture that is open to reasonable debate (contra Thatcher) and irresolvable to high levels of certainty (contra ElBaradei). This paper examines how competing legal approaches deal with this epistemic problem.