forthcoming scholarship

* Forthcoming Scholarship

"Post-Human Humanitarian Law: The Law of War in the Age of Robotic Warfare"

Indian Yearbook of International Law and Policy, Vol. 1, 2010

VIVEK (VIK) KANWAR, JGLS
Email: kanwar

This Review Essay, to be published in the Indian Yearbook of International Law and Policy (2010) surveys the recent literature on the tensions between of autonomy and accountability in robotic warfare. Four books, taken together, suggest an original account of fundamental changes taking place in the field of IHL: P.W. Singer’s book Wired for War: the Robotics Revolution and Conflict in the 21st Century (2009), William H. Boothby’s Weapons and the Law of Armed Conflict (2009), Armin Krishnan’s Killer Robots: Legality and Ethicality of Autonomous Weapons (2009), and Ronald Arkin’s Governing Lethal Behavior in Autonomous Robots (2009). This Review Essay argues that from the point of view of IHL the concern is not the introduction of robots into the battlefield, but the gradual removal of humans. In this way the issue of weapon autonomy marks a paradigmatic shift from the so-called “humanization” of IHL to possible post-human concerns.

"None to Be Trusted: Israel’s Use of Cluster Munitions in the Second Lebanon War and the Case for the Convention on Cluster Munitions"

American University International Law Review, Vol. 25, No. 3, p. 423, 2010

EITAN BARAK, Hebrew University of Jerusalem
Email: eitanbarak

Israel’s extensive use of the Cluster Munitions in the 2006 Lebanon War provided a major impetus for drafting the 2008 Convention on Cluster Munitions (CCM). Israel, blamed for severe humanitarian post-conflict harm to civilians in South Lebanon, simultaneously faced an extensive diplomatic entanglement with the U.S. based on suspicions that Israel had violated U.S. legislation as well as a classified bilateral end-use agreement specifying the conditions of use of U.S.-made CMs. Relying on numerous sources, especially the recent declassified (June 2008) IDF’s Military Advocate General’s legal opinion into whether Israel’s CM use complied with International Humanitarian Law (IHL) and the 2008 Israel’s Inquiry Commission into the 2006 War final report, this Article lists seven intriguing lessons learned from that War regarding the legality of CM under IHL. These lessons also highlight the fundamental differences in the approaches taken by CCM supporters vis-á-vis the U.S. and other major CM stockpilers, which hold that restricting and regulating the use of CMs (through adopting a new Protocol to the Convention on Certain Conventional Weapons) is sufficient to avoid future harm to civilians from these weapons. Beyond the legality issue, this Article draws conclusions to the Protocol’s fragility and, importantly, to the CCM’s necessity

"Prosecuting Terrorism – Models for Confronting Organized Violence"

WAYNE MCCORMACK, University of Utah – S.J. Quinney College of Law
Email: mccormackw

This article reviews application of the two existing paradigms of law and crime to international terrorism. Terrorism is not an entity with which the model of war makes sense, and ordinary crime is not an adequate model for addressing the problem. Rather than contorting the traditions of either existing paradigm, it would be better to recognize the applicability of a third paradigm that has been applied successfully to piracy and slavery – the model of crimes erga omens under jus cogens which can be supported by military operations other than war (MOOTW). There is already the emerging supra-state body of international humanitarian law (IHL) to address offenses that are characterized by ongoing violence against civilians that is "widespread or systematic."

A valuable corollary is the US experience with racial terrorism and the so-called KKK statutes. The reason for supra-state intervention by international organizations into the affairs of a nation-state is the same as the reason for supra-state intervention by the U.S. federal government into the affairs of a U.S. state. It is the presence of an organization (whether recognized as the state or not) with sufficient resources to carry out violent actions against a civilian population without the state’s being willing or able to control it. This is the identical problem with terrorism today.

This realization feeds into the need for recognition of an international norm of counter-terrorism in which "widespread or systematic" attacks on civilians can be addressed by any nation with use of MOOTW. The model avoids most, but not all, of the confusion and problems that have surrounded the concept of "enemy combatant" in recent U.S. initiatives. Some of the problems not addressed are what to do with tortured miscreants such as KSM and how to address targeted killings – those are to be resolved by other analysis suggested at the end of this article.

"The Requirement of ‘Belonging’ Under International Humanitarian Law"

European Journal of International Law, Vol. 21, Issue 1, pp. 105-124, 2010

KATHERINE DEL MAR, affiliation not provided to SSRN

This article argues that the notion of ‘belonging to a Party’ to an international armed conflict under Article 4A(2) of the Third Geneva Convention is a necessarily low-threshold requirement. It is submitted that the requirement of ‘belonging’ demands no more than a de facto agreement between a state and an irregular armed group to the effect that the latter will fight on the state’s behalf against another state. The article critically examines how the ICTY Appeals Chamber in the Tadić case applied the requirement to ‘belong’ under Article 4A(2) not in order to classify persons, but rather to classify the conflict in the former Yugoslavia as ‘international’. The Appeals Chamber also considered that the same test should apply for the purpose of attributing state responsibility. It will be argued that there should be no underlying assumption that the same test applies for different purposes. Rather, it is to be expected that different tests developed for different purposes are different. This heterogeneous content of international law does not mean that international law is fragmented. Rather, an argument is made for the application of tests according to their respective purposes.

"A Critique of the Goldstone Report and its Treatment of International Humanitarian Law"

American Society of International Law Proceedings, Vol. 104
San Diego Legal Studies Paper No. 10-019

ABRAHAM BELL, University of San Diego School of Law, Bar Ilan University – Faculty of Law
Email: avibell

This essay was prepared for a panel discussion on The Goldstone Report and the Modern Law of War at the 2010 Annual Meeting of the American Society of International Law.

The essay briefly examines the controversial Goldstone Report’s treatment of four legal issues: (1) collective punishment; (2) terrorism; (3) distinction and proportionality and (4) human shielding and perfidy.

The essay finds that the Goldstone Report’s treatment of these issues does not comport with commonly accepted understandings of the meanings of the doctrine. Specifically, on collective punishment, the Report expands the term to cover legal acts of retorsion such as economic and political sanctions. On terrorism, the Report rejects recent treaties and Security Council Resolutions and creates legal duties to support terrorist organizations and respect their alleged rights of free association. The Report erases the intent and anticipation components of distinction and proportionality, and also appears to find all collateral damage disproportionate. And the Report functionally grants some parties immunity from the rules of human shielding and perfidy by finding such acts unworthy of investigation or notice.

In addition, the essay highlights several problems in the Report’s treatment of evidence, as well as its decision to apply its revolutionary new legal standards only to Israel.

"Two Ships in the Night or in the Same Boat Together? Why the European Court of Justice Made the Right Choice in the Kadi Case"

College of Europe EU Diplomacy Paper No. 3/2009

JORIS LARIK, European University Institute – Department of Law (LAW), Dresden University of Technology
Email: joris.larik

This paper investigates the approaches to the recent Kadi case taken by both the Court of First Instance and the Advocate General and asks whether the European Court of Justice made the right choice with regard to the case’s implications for the relationship between European and international law. It argues that the Court’s judgement of 3 September 2008 in Kadi is to be welcomed, also from an international perspective. It rightly rejected the approach presented by the Court of First Instance, which, albeit stressing the importance of the UN Charter, ultimately turned out to be a ‘false friend’ of international law. By largely following the Advocate General’s Opinion, the Court maintained the integrity and the superior human rights standard of the EU legal order. Without jeopardizing the compliance of the Member States with their UN Charter obligations right away, it sent a clear warning signal to the United Nations Security Council to exhaust its potential for reform of the targeted sanction regime to the fullest. The Court showed that in an interdependent world of multilevel governance, the different components cannot ‘pass by each other like ships in the night’. In the face of threats like global terrorism as well as undue curtailing of human rights, we are all in the same boat together after all.

"Burdens of Proof and Evidentiary Standards in U.N. Weapons Inspections"

ROB BEJESKY, affiliation not provided to SSRN
Email: rb_775

The article analyzes the role of evidentiary standards under international law and how perceptions of evidence on weapons of mass destruction (WMD) allegations led to the 2003 invasion of Iraq. The evidentiary record is built by using the five-year Senate Select Committee on Intelligence investigation of the pre-invasion intelligence information (concluded in June 2008), the Iraqi Survey Group physical inspection findings during occupation, other government studies, and verified media releases over the past six years. Findings are juxtaposed with the domestic level issue formation, the UN Security Council interactions, and the four months of UN inspection reports. The chronological case study builds a structure of evidentiary standards, explains why Security Council interactions were logistically effective but ultimately unavailing, and is applied to a two-level domestic/international interactive game framework that distinguishes between established evidence and media assertions. Diplomatic and inspector evidentiary perceptions are analyzed as they progressed and are applied to resolution language that should have been the legal frame of reference for breach. Evidentiary standards of proof for breach were required in Security Council resolutions, all UN processes, UN inspection obligations, under good faith diplomacy principles, and even the language of Congress’s October 2002 Authorization for Use of Military Force Against Iraq. However, preconditions were bypassed. Since the UN Security Council does not possess a formal and dispassionate evidentiary fact-finding institution and diplomatically-produced information can commingle with potentially irreconcilable prerogatives of sovereign authority, an augmenting pressure dynamic can arise to supplant objectivity and relegate impartial, sober, and dispassionate legal processes to the realm of politics.

"Neighbourhood Watch? The African Great Lakes Pact and Ius Ad Bellum"

Zeitschrift für Ausländisches öffentliches Recht und Völkerrecht, Vol. 69, pp. 931-959, 2009

MARCO ROSCINI, University of Westminster School of Law, King’s College London School of Law, Queen Mary University of London School of Law
Email: mroscini

This article focuses on the ius ad bellum provisions contained in the Protocol on Non-aggression and Mutual Defence which forms an integral part of the 2006 African Great Lakes Pact. The Protocol contains peculiar provisions that provide the opportunity to develop broader considerations on the alleged African unorthodox approach to the regulation of the use of armed force. The Protocol is not considered in isolation and is analysed taking into account other analogous African treaties, with the ultimate purpose of establishing whether or not its provisions are consistent with existing law. Section 2 deals with the prohibition of aggression and compares the definition contained in the Great Lakes Protocol with that adopted by the UN General Assembly in 1974. Section 3 analyses the right of individual and collective self-defence as contained in the Protocol and discusses its consistency with Article 51 of the UN Charter and customary international law. Finally, the last two sections investigate whether and under what conditions the Protocol provides for further exceptions to the prohibition of the use of force in addition to self-defence, in particular the ‘responsibility to protect’ populations by military means and the right of pro-democratic intervention.

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