nationalsecuritylaw forthcoming/recent scholarship (targeting; sovereignty)

Targeting/Drones/Use of Force at the Individual Level

Autonomous Weapons: Are You Sure These are Killer Robots? Can We Talk About It?

Shane Reeves (US Military Academy), William J. Johnson (JAG Legal Center)
The Army Lawyer, 1 (2014)

The rise of autonomous weapons is creating understandable concern for the international community as it is impossible to predict exactly what will happen with the technology. This uncertainty has led some to advocate for a preemptive ban on the technology. Yet the emergence of a new means of warfare is not a unique phenomenon and is assumed within the Law of Armed Conflict. Past attempts at prohibiting emerging technologies use as weapons — such as aerial balloons in Declaration IV of the 1899 Hague Convention — have failed as a prohibitive regime denies the realities of warfare. Further, those exploring the idea of autonomous weapons are sensitive not only to their legal obligations, but also to the various ethical and moral questions surrounding the technology. Rather than attempting to preemptively ban autonomous weapons before understanding the technology’s potential, efforts should be made to pool the collective intellectual resources of scholars and practitioners to develop a road forward. Perhaps this would be the first step to a more comprehensive and assertive approach to addressing the other pressing issues of modern warfare

"On Target": Precision and Balance in the Contemporary Law of Targeting

Eric Widmar (Naval War College), Michael Schmitt (Exeter)
Journal of National Security Law and Policy, Vol. 7 No. 2 (2014)

The law of targeting lies at the heart of international humanitarian law (IHL). As such it is the fulcrum around which discussion of combat operations revolves. The efficacy of this body of law depends on maintenance of the delicate balance between military necessity and humanitarian concerns. Mischaracterization or misapplication of IHL norms risks imbalance, thereby jeopardizing the innocent and potentially eroding State support for IHL’s application. Regrettably, while some of the current debate and commentary surrounding, inter alia, drone operations, autonomous weapons systems, cyber operations, and the current conflicts in Afghanistan, Syria, Yemen, Somalia, and Ukraine, to name just a few, is highly sophisticated, much of it has been characterized by imprecise, skewed, or wrong assertions regarding the law of targeting. It is therefore a propitious moment to revisit the structure and content of targeting law. After briefly placing the law of targeting in the broader context of IHL, this article examines the five constituent elements of a targeting operation: (1) target; (2) weapon; (3) execution of the attack; (4) collateral damage and incidental injury; and (5) location. The legality of an engagement depends on full compliance with the rules falling into each category.

The Problem of Imminence in an Uncertain World

Noam Lubell (University of Essex)

The Oxford Handbook of the Use of Force in International Law (Forthcoming, 2014)

This paper sets out to analyse the meaning of imminence in the context of self-defence, how it is to be interpreted, what it might justify and what it might exclude, and whether it is in fact a criterion that can be upheld in light of modern challenges. In particular, it covers:

• The development of the imminence requirement as a criteria for anticipatory self-defence.
• The meaning of ‘imminence’, the links to immediacy and specificity.
• Why do terrorism and WMD cause a challenge with regard to imminence, and what are the particular concerns with each of these?
• What would a new notion of imminence actually mean?
• Does imminence require certainty and can we ever be ‘certain’?
• Does the nature of the threat affect the risk analysis and approach to imminence?

International Law & Sovereignty

To Russia with Love: How Moral Arguments for a Humanitarian Intervention in Syria Opened the Door for an Invasion of the Ukraine

Shane R. Reeves (U.S. Military Academy)

Michigan State International Law Review Volume 22, Issue 1 (Forthcoming, 2014)

The United Nations has been incapable of authorizing an international response to stop the mass atrocities taking place in the Syrian Civil War. This has led some concerned nations to argue for a unilateral military operation based upon the controversial international legal concept titled humanitarian intervention. Humanitarian intervention provides a distinct legal basis for the use of force when there is a moral obligation to protect victims of war crimes, genocide, or other crimes against humanity. This is in contrast to the more conservative approach known as the Responsibility to Protect. Despite the obvious appeal of invoking a progressive use of force doctrine in Syria, relying on moral authority to authorize military action raises a particularly troubling international law question: What keeps an aggressive state from invading another nation under the pretext of stopping a "humanitarian crisis"?

The legal justifications for the recent military acts by the Russian Federation in the Ukraine’s Crimean Peninsula starkly illustrate the impossibility of objectively answering this question. The Ukrainian crisis has instead demonstrated that determining when a humanitarian intervention is necessitated is a subjective and political decision. It is this subjectivity which underscores the logic of the post-World War II jus contra bellum prohibition on acts of aggression and is why using a moral argument to legally justify the use of military force dramatically increases the potential for a new age of nation-state warfare.

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