nationalsecuritylaw forthcoming scholarship

Debates and Dichotomies: Exploring the Presumptions Underlying Contentions about the Geography of Armed Conflict

Laurie R. Blank (Emory)

Boundaries of the Battlefield (TMC Asser Press, 2014)

An examination of the growing literature on the topic of the geography of armed conflict, including chapters in this volume, suggests that the differences of opinion, between and among academics, policymakers and military lawyers, for example, are nearly intractable. Statements about the propriety of a certain target under the law of armed conflict are often met by pronouncements regarding the role of jus ad bellum in cabining the use of force in the territory of another state or the restrictive parameters of the international human rights/law enforcement regime for addressing individuals who pose a threat or danger to others. Indeed, one might easily conclude that the participants in these debates are simply operating in entirely separate analytical paradigms, leading to interesting and challenging intellectual discussions but not to productive conversations that advance the analysis and move beyond the debate to effective potential resolution of a complicated and multi-layered issue. However, unlike pornography or terrorism, where notwithstanding a myriad of different definitions, “you know it when you see it,” little agreement exists even on whether there is a specific, definable geography of armed conflict at all.

To help move beyond this impasse, this chapter explores the presumptions underlying the ongoing debates regarding the geography of armed conflict, in an effort to untangle the debates and provide new opportunities and venues for discussion — and thus to help advance the development of the law of armed conflict (LOAC) and other relevant bodies of law. These presumptions appear in particular in four dichotomies that inherently help drive the debates but are brushed aside or not taken into consideration: law vs. policy; authority vs. obligation; territory vs. threat; and submission of the collective enemy vs. elimination of an individual threat. For each or any of these dichotomies, the lens through which one views the contrasting positions will then have a significant — if not determinative — effect on considerations and conclusions regarding questions of geography and the battlefield. As a result, recognizing these dichotomies and understanding how they impact the current discourse is critical to any effective conversation, whether in the academic or policy arenas.

Wound, Capture, or Kill? A Reply to Professor Ryan Goodman’s ‘The Power to Kill or Capture Enemy Combatants’

Michael N. Schmitt (Exeter)

24 European Journal of International Law 855 (2013)

This article explores the international humanitarian law rules that govern whether enemy combatants must be captured on the battlefield whenever possible. It replies to Professor Ryan Goodman’s piece on the same topic in the European Journal of International Law. It argues that no such duty exists, although it also acknowledges that doing so is typically done for operational reasons.

What Future for Australia’s Control Order Regime?

Lisa Burton and George Williams (University of New South Wales)

Public Law Review, Vol. 24 (2013)

Control orders restrict the liberty of an individual in order to protect the community from future terrorist acts. Australia introduced control orders following the example of the United Kingdom, the first and only other nation to enact such measures. Yet in 2011 the UK abolished its control order regime, and replaced it with a more targeted system of Terrorism Prevention and Investigation Measures (TPIMs). In light of these reforms, what future is there for the Australian control order regime? This article compares the design and use of the Australian control order regime with the UK regime on which it was based, and the new system of TPIMs. The authors question whether there was, or is now, any adequate justification for the Australian control order regime.

Under the UN Security Council’s Watchful Eyes: Military Intervention by Invitation in the Malian Conflict

Karine Bannelier and Theodore Christakis (University Genoble-Alpes)

Leiden Journal of International Law (2013)

Responding to an urgent request by the authorities of Mali, France launched in January 2013 “Operation Serval” against several terrorist armed groups. The French troops were assisted by a Chadian contingent and by forces progressively deployed by other African countries within a UNSC authorized African force (resolution 2085). While the French and African military Operations in Mali were clearly legal, they raise important questions of jus ad bellum in relation with the two legal arguments put forward to justify them: intervention by invitation and UNSC authorization. In this paper we first discuss the general rules of international law applying on intervention by invitation. We explain that such an intervention could sometimes be contrary to the principle of self-determination and we propose a purpose-based approach. We then apply these rules to the situation in Mali and conclude that the French and Chadian interventions were legal because, on the one hand, the request was validly formulated by the internationally recognised government of Mali and, on the other hand, their legitimate purpose was to fight terrorism. The UNSC approved this legal basis and “helped” France and Chad appeal validly to it by listing the enemy as “terrorist groups”. It gave its “blessing” to these interventions, without authorizing them and observed the events with relief. The adoption of resolution 2100 on 25 April 2013 raises new legal questions. The Council creates a UN peace enforcement mission in Mali, MINUSMA, which has a robust use of force mandate. Created just a few weeks after the DRC “Intervention Brigade”, this force seems to indicate an ongoing evolution (revolution?) in UN peacekeeping, notwithstanding the assurances by some UNSC member States that MINUSMA will avoid “offensive counter-terrorism operations”. At the same time resolution 2100 gives a restricted use of force mandate to France (to protect MINUSMA), without challenging the legal validity of intervention by invitation for all other tasks! The conflict in Mali might thus remain for some time yet between the latitude of UNSC authorization and the longitude of unilateral intervention by invitation.

The Law of Armed Conflict’s ‘Wicked’ Problem: Levée En Masse in Cyber Warfare

David A. Wallace and Shane R. Reeves (West Point)

International Legal Studies (2013)

The Law of Armed Conflict is often ill-suited for application in the cyber context. One particular example — trying to reconcile the concept of levée en masse with the cyber conflicts between nations and ad hoc assemblages — starkly illustrates this truth. To support this proposition this article begins with a brief discussion on the history of a levée en masse. An explanation of how the law of armed conflict defines and characterizes the individual battlefield status associated with levée en masse follows. The article then explores the unique aspects of hostilities in cyberspace and delves into the impracticality of applying the concept of levée en masse in the context of cyber warfare. It concludes with specific recommendations in terms of the reconceptualising of a levée en masse in cyber warfare and a hope that, by focusing on this nuanced provision of the law of armed conflict, a broader discussion will ensue

Are We Reaching a Tipping Point? How Contemporary Challenges are Affecting the Military Necessity-Humanity Balance

Shane R. Reeves (West Point) and Jeffrey S. Thurnher (United States Naval War College)

Harvard National Security Journal (Online Features) (2013)

The contemporary Law of Armed Conflict is predicated on the existence of a balance between the traditionally recognized principles of military necessity and humanity. This equilibrium permeates the entirety of that field of law, thereby ensuring that force is applied on the battlefield in a manner allowing for the accomplishment of the mission while simultaneously taking appropriate humanitarian considerations into account. This longstanding equipoise is at risk as illustrated by three contemporary examples. The first involves the recently revived claim that the Law of Armed Conflict imposes a strict obligation on a combatant to attempt to capture before employing deadly force against an enemy combatant under a least-restrictive-means of force construct, which is designed to ensure a belligerent uses the least harmful approach to incapacitate an enemy. The second issue concerns the lawfulness of autonomous weapon systems and whether they should be preemptively banned, as has been suggested by some nongovernmental organizations (NGOs). The third includes the backlash emanating from efforts to establish rules and ways to respond to attacks in the cyber context, including using lethal kinetic responses. The legal and public discourse stemming from these current debates represents a potential tipping point that could upend the historical framework by disproportionally favoring humanitarian considerations thus eroding the ability of the Law of Armed Conflict to effectively regulate warfare.

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