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Full-Text Articles in International Humanitarian Law

Syria: Can International Law Cope? Workshop Report, Christopher M. Ford Jun 2016

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 …

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Mapping War Crimes In Syria, Beth Van Schaak Jun 2016

Mapping War Crimes In Syria, Beth Van Schaak

International Law Studies

This article maps the range of war crimes being committed in Syria with reference to the applicable treaty and customary international law and prospects for prosecution. It begins by presenting the international legal framework employed to determine when an armed conflict began in Syria, how this conflict is classified under international law and which multilateral treaties and customary rules are operative. This framework underlies the determination of which war crimes can be prosecuted, which tribunals might have jurisdiction and which perpetrators may be made subject to indictment. The article next focuses on some open legal and factual issues around certain …

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Japan’S 2015 Security Legislation: Challenges To Its Implementation Under International Law, Hitoshi Nasu Jun 2016

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 …

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Foreign Terrorist Fighters In Syria: Challenges Of The “Sending” State, Marten Zwanenburg Apr 2016

Foreign Terrorist Fighters In Syria: Challenges Of The “Sending” State, Marten Zwanenburg

International Law Studies

This article discusses domestic measures taken by the Netherlands to combat the phenomenon of foreign terrorist fighters, predominantly in the context of the Syrian conflict. It discusses criminal prosecution, asset freezes, deprivation of nationality and revocation of travel documents. The author concludes that in each of these fields, there is a close relationship between international law and national law.

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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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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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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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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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Applying The European Convention On Human Rights To The Use Of Physical Force: Al-Saadoon, David S. Goddard Jun 2015

Applying The European Convention On Human Rights To The Use Of Physical Force: Al-Saadoon, David S. Goddard

International Law Studies

In Al-Saadoon and Others v. Secretary of State for Defence, the High Court of Justice of England and Wales has found that the United Kingdom’s obligations under the European Convention on Human Rights (ECHR) can be activated extraterritorially simply through the use by State agents of physical force against an individual. This article explains the judgment and places it in the context of the development of the law both in the United Kingdom and at the European Court of Human Rights (ECtHR). While it remains subject to appeal domestically and its approach may not be followed by the ECtHR, …

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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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The Doctrine Of Legitimate Defense, Jens Ohlin Mar 2015

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.

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Targeting And Detention In Non-International Armed Conflict: Serdar Mohammed And The Limits Of Human Rights Convergence, Aurel Sari, Sean Aughey Feb 2015

Targeting And Detention In Non-International Armed Conflict: Serdar Mohammed And The Limits Of Human Rights Convergence, Aurel Sari, Sean Aughey

International Law Studies

In recent years, the United Kingdom has seen a steady flow of legal challenges arising out of its involvement in the armed conflicts in Afghanistan and Iraq. Among these, the case of Serdar Mohammed, decided by the English High Court in May 2014, is of particular interest because of its wider implications. In essence, the High Court’s judgment in Mohammed questions the existence of a legal basis under the law of armed conflict for the conduct of status-based operations in non-international armed conflicts. This article demonstrates that the restrictive approach adopted by the High Court in Mohammed is mistaken as …

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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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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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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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International Law Applicable To Naval Mines, Chatham House Oct 2014

International Law Applicable To Naval Mines, Chatham House

International Law Studies

This report summarizes the workshop held on February 26–27, 2014 on the law governing the use of naval mines in times of both peace and war. The workshop, organized by Chatham House, the Royal Navy and U.S. Naval War College, brought together a group of international law scholars, operational lawyers and other legal experts in the field. The objective of the workshop was to clarify existing law and identify areas of legal uncertainty to assist States to conduct their operations lawfully.

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The Legality And Implications Of Intentional Interference With Commercial Communication Satellite Signals, Sarah M. Mountin May 2014

The Legality And Implications Of Intentional Interference With Commercial Communication Satellite Signals, Sarah M. Mountin

International Law Studies

Commercial communication satellite signals have become increasingly attractive targets for intentional interference by State and non-State actors. This article discusses the law applicable to satellite signal interference in peacetime, as well as during armed conflict. Specifically, the piece discusses the threshold at which intentional interference may constitute a use of force.

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The United States’ Position On The Extraterritorial Application Of Human Rights Obligations: Now Is The Time For Change, Beth Van Schaack Feb 2014

The United States’ Position On The Extraterritorial Application Of Human Rights Obligations: Now Is The Time For Change, Beth Van Schaack

International Law Studies

This article contends that in the upcoming Human Rights Committee proceedings, the U.S. should abandon the categorical argument that its human rights obligations do not apply extraterritorially in favor of a more nuanced approach that reflects the majority position reached by the range of human rights treaty bodies and courts as well as the legal framework applicable to our coalition partners and other allies. The U.S. failure to acknowledge limited, well-established, and principled exceptions to a strictly territorial application of its human rights obligations ultimately undermines the legitimacy of other, more efficacious, arguments at its disposal—such as its position on …

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Charting The Legal Geography Of Non-International Armed Conflict, Michael N. Schmitt Jan 2014

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.

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The Syrian Intervention: Assessing The Possible International Law Justifications, Michael Schmitt Dec 2013

The Syrian Intervention: Assessing The Possible International Law Justifications, Michael Schmitt

International Law Studies

No abstract provided.

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Cyber War And International Law: Concluding Remarks At The 2012 Naval War College International Law Conference, Yoram Dinstein Dec 2013

Cyber War And International Law: Concluding Remarks At The 2012 Naval War College International Law Conference, Yoram Dinstein

International Law Studies

No abstract provided.

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