Search

Conclusion I Russia's aggression against Ukraine constitutes an attack against general public order of a magnitude and kind without precedent since 1945. Conclusion II Ukraine as a State and Ukrainian [...]

I. INTRODUCTION 95 II. STEPS TOWARD REPARATION: DEVELOPMENTS SINCE THE DRAFT CONCLUSIONS 101 A. General Assembly Resolution 101 ES-11/5 of November 14, 2022 1. Recitals 101 a. The ICJ's Provisional [...]

In 2015, the United States military struck a hospital in Afghanistan run by Medecins Sans Frontieres, killing forty-two staff and patients. Testifying afterwards before a Senate Committee, General John F. Campbell explained that '[t]he hospital was mistakenly struck.' In 2019, while providing air support to partner forces under attack by ISIS, the U.S. military killed dozens of women and children. Central Command concluded that any civilian deaths 'were accidental.' In August 2021, during a rushed withdrawal from Afghanistan, the U.S. military executed a drone strike in Kabul that killed ten civilians, including an aid worker for a U.S. charity and seven children in his family. The Pentagon later admitted it was a 'tragic mistake.' In these cases and others like them, no one set out to kill the civilians who died. Such events are usually chalked up as sad but inevitable consequences of war--as regrettable 'mistakes.' This Article examines the law on 'mistakes' in war. It shows that, while those responsible for 'mistakes' are often not held accountable, there is significant evidence that certain 'mistakes' are criminally culpable. It also shows that the law holds not just individuals, but also States, responsible for preventing certain 'mistakes.' To see how the law works, or fails to work, in practice, the Article examines the U.S. military's own assessments of civilian casualties. The analysis focuses on the United States, both because of its global military operations and because of the power of its example to shape global practices. It demonstrates that 'mistakes' in the U.S. counterterrorism campaign have been far more common than generally acknowledged. Moreover, it argues that the repeated errors that these reports reveal--not just one mistake, but an unmistakable pattern of mistakes--are the predictable result of a system that, during the period examined, did too little to learn from its mistakes. It concludes by advocating reforms to address individual and systemic 'mistakes' through changes in U.S. law and targeting practices and in the law of armed conflict., INTRODUCTION 3 I. INDIVIDUAL CRIMINAL RESPONSIBILITY FOR 'MISTAKES' 9 A. The Legal Framework 9 B. International Committee of the Red Cross 12 C. Case Law 13 1. ICTY 13 2. [...]

CONTENTS I Introduction 1 II The Crisis Model: Then and Now 2 III What Is an Epoch Approach? 5 IV Case Study of the Russian Federation's Aggression Against Ukraine 9 [...]

Article 51 of the Charter of the United Nations provides states who are subject to an armed attack the right to respond in self-defence through the use of force, a form of recourse prohibited in all other circumstances, absent Security Council authorisation, by art 2(4). Despite unequivocal agreement that the Charter of the United Nations applies to the cyber realm, there remains no consensus as to how arts 2(4) and 51 apply to cyber attacks. This uncertainty is significantly more pronounced vis-a-vis 'non-kinetic' cyber attacks which do not manifest physically. Given the imperatives underpinning the ability to defend against ever-increasing cyber attacks which may have ramifications far greater than traditional weaponry, a novel approach is required. This article provides a bespoke framework to appropriately fill this lacuna, termed the 'Substantive Necessity' approach. In arguing that notions of 'force' and 'gravity' do not have inherent requirements of physicality, it proposes that a non-kinetic cyber attack will amount to an 'armed attack' animating the right to forcible self-defence where it is apprehended by the victim state based on clear and convincing evidence as a hostile act or set of acts which (a) has fundamentally compromised, or (b) is imminently poised to fundamentally compromise, the (i) functioning or (ii) security of (c) infrastructure crucial to a state's ability to function as such. This framework, it is argued, protects state interests and reinstates critical deterrents for aggressor states, yet crucially does not 'open the floodgates' to enable the unacceptable escalation of unlawful force., CONTENTS I Introduction 2 II Forcing the Issue? Why the Jus ad Bellum 7 A Can Non-Kinetic Cyber Attacks Ever Be 'Force'? 8 1 Defining 'Non-Kinetic Cyber Attacks' 8 2 [...]

I. INTRODUCTION 308 A. Summary 310 II. THE WESTERN SAHARA 312 A. Overview of Modernized Western Sahara 312 B. Demographic and Cultural Background 315 III. LAW AND GOVERNANCE IN THE [...], The Western Sahara is often called the "Last Colony in the World," in reference to its anachronistic status as a territory deemed to have self-determination by the United Nations and ICJ, but still under the rule of another country. Scholarship on the Western Sahara tends to concentrate on the protracted stalemate in their war of independence against Morocco, highlighting the roles of several individual actors, such as France, the United States, the United Nations, and the Polisario, and how these actors create a particular structure to the conflict. This Note focuses on the role of the International Legal Order, as created and upheld by actors such as the United Nations and the United States, in developing and maintaining the stalemate. First, this Note examines the way the rules on the prohibition on the use of force have asymmetrically limited the ability of the Sahrawi people and the Polisario to respond to colonial violence and to pursue their right to self-determination. Second, this Note examines how the principles of self-determination as defined by the International Legal Order further the power imbalances which allow the oppression of the Western Sahara to continue. Following in the tradition of Third World Approaches to International Law, this Note highlights the displacement of the local legal order in the Western Sahara, and aims to demonstrate that by stifling the right to resistance in the Western Sahara, the International Legal Order merely perpetuates the power imbalances of colonialism.

TABLE OF CONTENTS I. CYBER THREATS TO CIVILIANS IN ARMED CONFLICT 361 II. OLD LAW, NEW WEAPON 364 A. Offensive Cyber Operations in Armed Conflict 365 B. International Humanitarian Law, [...], Russia's use of offensive cyber operations to further its illegal war against Ukraine has prompted calls for a response to these cyber operations from the International Criminal Court. However, the International Criminal Court is an inadequate forum for adjudicating cyber conduct in armed conflict because cyber operations fit awkwardly into the traditional war crimes legal framework. Furthermore, the Rome Statute's strict substantive and procedural features provide strict limitations on the kinds of cyber conduct that might constitute a war crime against which the Prosecutor of the International Criminal Court could bring an effective case. Because most cyber conduct does not produce kinetic effects, the established framework of international humanitarian law that the Rome Statute reflects does not comprehensively regulate the unique domain in which cyber operations occur. This Note argues that observers have overlooked a more promising way of addressing illegal cyber operations in armed conflict: the right to life under international human rights law. As a more malleable body of law that mutually reinforces international humanitarian law, human rights law--and the right to life, in particular--can capture more cyber conduct and hold armed actors accountable for their harmful effects on civilians. Addressing cyber operations through human rights law will also accelerate the development of the law governing cyber operations and encourage a more interdisciplinary approach to evaluating how the cyber domain is governed by complementary fields of international law.

In war powers analysis, reliance on the interpretive method of historical practice, also called the "gloss of history," has made history a technology of the forever war. This approach draws [...]

I. Introduction This paper considers how widescale economic sanctions against Russia, implemented due to the invasion of Ukraine, have impacted foreign investors and their ability to bring claims through international [...]

I. INTRODUCTION A. Eastern Society v. Western Society In 1648, the Western World, in a symbol of camaraderie, signed a unilateral treaty to end the decades of bloodshed and religious [...]

This panel was convened at 10:30 a.m. on Friday, April 8, 2022, by its moderator, Heather Brandon-Smith of the Friends Committee on National Legislation, who introduced the speakers: Shiri Krebs [...]

INTRODUCTION In the conduct of military operations throughout history, soldiers serving on the battlefield have returned home with souvenirs and relics to remember their tours. When David fought with an [...]

TABLE OF CONTENTS 1. INTRODUCTION 1164 11. THE TRADITIONAL NOTION OF COMBATANCY 1169 III. UNLAWFUL COMBATANCY AND THE BUSH DOCTRINE 1173 IV. OBAMA AND THE TARGETING OF NONSTATE ACTORS 1178 [...], With the killing of Iranian general Qassim Soleimani, the United States crossed a new frontier in the use of extrajudicial lethal operations outside of armed conflict. As a state actor, Soleimani once would have been entirely off-limits as a target outside the context of a formal armed conflict between the United States and Iran. The Trump administration's choice to conduct a one-off strike on a state military leader indicates that conflicts among state adversaries are increasingly fought using the hybridized tools of the war on terror. This Article will argue that the increasing use of such techniques and the perceived relaxation of the constraints of international law in conflicts among states is a regrettable, but foreseeable, result of a certain conception of violent nonstate actors that immediately followed the 9/11 attacks. Greater clarity about the legal boundaries governing the use of Bush-era interrogation methods and President Obama's dramatic increase in the use of extrajudicial killing against nonstate actors might have forestalled this development. This Article focuses on the decision to treat violent nonstate actors in the war on terror as "unlawful combatants,"--a framework that deprives them of the traditional protections of both the Law of Armed Conflict (LOAC) and the constitutional guarantees ordinarily extended to criminal defendants. This ambiguity provided legal impunity for abuse, the impossibility of achieving convictions at trial for those detained, and an uncertain legal basis for those who are targeted rather than captured. The question of status now arises with urgency for violent state actors like Qassim Soleimani, who was killed by a US drone strike in January of 2020. This Article will argue that violent nonstate actors are more properly thought of as civilians than combatants but that this approach should not be permitted to affect the treatment of state actors like Soleimani, whose status as a state actor implies that he can only be targeted as a state combatant and then only if in the context of armed conflict.

CONTENTS I Introduction 1 II Background and Summary of the Case 2 III Jurisdiction 5 A Introduction 5 B Active Phase of Hostilities 6 C Occupation Phase 10 IV The [...]

INTRODUCTION When the United Nations (UN) was formed, one of its most important goals was to render war obsolete. The UN Charter states as a goal the hope to "save [...]

I. INTRODUCTION 310 II. NON-STATE INTELLIGENCE FUNCTIONS AND ORGANIZATION 314 III. THE LEGAL FRAMEWORK 318 IV. STATUS OF OAG INTELLIGENCE ORGANIZATIONS AND THEIR PERSONNEL 322 A. Definition of Organized Armed [...], This Article examines the targetability of individuals and organizations performing intelligence functions for a non-State group involved in an armed conflict. Specifically, it considers the circumstances under which they lose the international humanitarian law (IHL) protections from, and during, attacks that they would otherwise enjoy as civilians. To do so, the piece deconstructs IHL's "organized armed group" construct to determine when an intelligence organization can be characterized as a component thereof. Noting that some non-State groups consist of both entities involved in the hostilities and organizations having no relationship to them, the Article introduces the concept of a non-State group's "overall OAG," a notion that parallel's the characterization of a State's various military units as its "armed forces." Additionally, the Article assesses the circumstances under which individuals engaged in activities intelligence who are not members of an OAG may be targeted on the basis of their "direct participation in the hostilities."

As one of the first U.S. Symposia on the topic, speakers at the Duke Journal of Comparative & International Law Symposium on National Security and Trade Law held at Duke [...], Within the context of enhanced rhetoric about the need for national security measures to protect domestic economic interests, the Duke Journal of Comparative & International Law hosted a Symposium on National Security and Trade Law in which speakers raised questions as to not only what is meant by national security today, but also the significance of invoking national security exceptions in trade. This Introduction provides an overview of issues discussed as well as some reflections on the use of the national security exception in trade during a time when nations are moving away from international cooperation towards unilateralism and facing global crises such as the COVID-19 pandemic. With the World Trade Organization's recent panel decision, Russia--Measures Concerning Traffic in Transit, the international community received some guidance as to the limited use of this exception under GATT Article XXI and the need for good faith by nations invoking it, but larger questions remained as to its applicability in the context of economic insecurity and in the context of broader global challenges such as cybersecurity and climate change. Furthermore, with the current dysfunction of the Appellate Body of the WTO, there is no central adjudicatory body to address these issues in a systematic fashion, leaving it up to the nations or ad hoc adjudicatory processes to decide, rendering the multilateral trade framework an even more fragmented system. New ways of imagining the role of trade in the context of global and economic crises are needed, as well as more resilient institutional frameworks that can adapt to future forms of insecurity and allow for varied, constructive forms of dialogue among nations.

I INTRODUCTION On 19 November 2020, the Chief of the Australian Defence Force announced the findings of a landmark inquiry by the Inspector-General of the Australian Defence Force (TGADF') into [...], Despite many States having incorporated war crimes offences in their domestic legislation, prosecutions under these offences remain remarkably rare. Instead, relevant conduct is often charged relying on military or ordinary criminal law offences, such as murder. At a time when Australia has launched criminal investigations into alleged war crimes committed by members of its armed forces in Afghanistan, it is worth asking whether there are legal or policy reasons for prosecutors to consider preferring charges under Australia's specialised international crimes provisions. This article canvasses the potential challenges that may generally deter States from bringing such charges. It then critically analyses three arguments that may be made in favour of such a course of action.

TABLE OF CONTENTS I. INTRODUCTION 389 II. THE LAWS OF WAR AND ORIGINS OF THE DOCTRINE 394 A. Jus ad Bellum Regime Assumptions 395 B. Jus ad Bellum and IHL [...], This Article challenges and proposes refinements to the "unwilling or unable" doctrine. Governments after 9/11 have invoked the doctrine to justify the use of force in self-defense against non-state actors (NSAs) operating within the territory of nonconsenting states. Responding to criticism that it lacked substance and a legal foundation, Daniel Bethlehem famously developed more detailed principles to embed the policy firmly in law, strike a balance between the interests of target states and territorial states, and bridge the gap between scholars and policy makers. His principles were embraced by governments as reflecting custom. The effort was laudable, but the principles fell short of their objective, and they create a risk of destabilizing the jus ad bellum regime. This Article notes that the principles do not reflect custom, and it examines some of the ways in which they are inconsistent with the established understanding of the jus ad bellum regime. Specifically, they: lower the threshold for what constitutes an armed attack; eviscerate the temporal component from the concept of imminence, thereby destabilizing the core principle of necessity; improperly import the law of state responsibility into the jus ad bellum analysis; and undermine the independence of the international humanitarian law (IHL) and the jus ad bellum regimes. Finally, the principles do not provide sufficient guidance on how or by whom a range of key determinations are to be made, particularly regarding the "ability" or "unwillingness" of the territorial state. The principles lump all these determinations together and suggest that they may all be made unilaterally by the target state, governed only by a single, low reasonableness standard. All of this weakens the constraints of the jus ad bellum regime more generally, thus raising the risk of inter-state war. The Article takes seriously the operational imperatives in dealing with the threat posed by terrorist organizations but proposes refinements to the principles to address each of these problems, so as to achieve greater consistency with established principles of the jus ad bellum regime. It develops new ideas on imminence, and drawing upon theories of self-judgment in international law, it disaggregates the decisions that have to be made and proposes differentiated standards to govern their execution and later assessment.

I INTRODUCTION CAAT v SOS concerned a judicial review application relating to the legality of the decisionmaking process employed by the Secretary of State for International Trade ('Secretary') in licensing [...]

I INTRODUCTION The prevalence of criminal behaviour among United Nations (UN) peacekeepers is not known. (3) In particular, despite the relatively well defined obligations of jus in hello, or international [...], On 31 March 2020 there were 81,370 uniformed military personnel, (1) from 127 contributing countries, deployed on UN Peacekeeping operations. This article will ask what sort of immunity these peacekeepers should have if justice is to be achieved specifically for victims of war crimes. In particular, this article will address the role of the international law applicable to peacekeeping in supporting both effective peacekeeping operations and enforcement of international criminal law. It will then examine the key sources of the two interacting regimes in this question: international criminal/humanitarian law, and the law surrounding the immunity of and jurisdiction over military peacekeepers. Finally, it will discuss possible options for achieving justice for victims of war crimes committed by military peacekeepers.

I INTRODUCTION Medical personnel assigned to armed forces are non-combatant members of armed forces who are entitled to certain protections under international humanitarian law ('IHL'). Under the Geneva Conventions (1) [...], This article explores a question which has received inadequate attention in the international humanitarian law ('IHL') literature to date: what is the status under IHL of medical personnel providing biomedical enhancements to combatants and when do they participate directly in hostilities? While earlier forms of enhancements were mainly biochemical pills, modern technologically-advanced enhancements such as cybernetic and neuro-prosthetic enhancements both require more direct involvement by medical personnel and potentially integrate the combatant and the weapon in their mode of operation and use. Such enhancements threaten to transform the status of the medical personnel providing them, calling for re-assessment of whether their provision amounts to direct participation in hostilities. The article also initiates pertinent discussion of the question of when biomedical treatment amounts to biomedical enhancement and how medical personnel and legal advisers should approach the relevant assessment.