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Last Year's List |
Date | Title | Author | Reference |
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***New*** May |
Reconceptualising the right of self-defence against 'imminent' armed attacks | Chris O'Meara | Journal On The Use Of Force
and International Law, 2022 |
A state's right to act in self-defence against 'imminent' armed attacks remains an unsettled question of international law. Yet, states persist in justifying military actions on this basis. Absent a common definition of imminence, assessing the legality of these operations is practically impossible. Although imminence is traditionally understood as referring solely to the temporal proximity of an armed attack, for some this approach is insufficient. This paper examines scholarship and examples of state practice that indicate that imminence may be viewed as comprising several contextual indicators that determine whether states may have recourse to self-defence. This conception of imminence raises fears of an expansive right of self-defence. Yet, this author concludes that such 'contextual imminence' stands as a proxy for jus ad bellum necessity. This conflation is perhaps unfortunate, but an orthodoxy regarding all forms of self-defence is thereby maintained, subject to the enduring legacy of the Caroline formula.
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***New*** May |
Limiting the Veto in the Face of Jus Cogens Violations: Russia's Latest (Ab)use of the Veto | Florent Beurret | Opinio Juris, 6th May 2022 |
No international lawyer was surprised when on 25 February 2022, the day after Russia started its invasion of Ukraine, Russia vetoed a UN Security Council (UNSC) draft resolution supported by 11 UNSC members, which would have ordered Russia to "immediately cease its use of force against Ukraine" and "immediately, completely, and unconditionally withdraw all of its military forces from the territory of Ukraine." In the past, much commentary has focused on the paralysis of the UNSC due to the fact that the five Permanent Members (P5) have often used their right of veto as found in Article 27 of the UN Charter for their own (political) interests, including when coordinated UNSC action could have ended or prevented mass human rights violations or atrocity crimes. This latest use of the veto by Russia very strongly reconfirms the already-existing proclamations by the international community that the UNSC, through the use and abuse of the veto by P5 members, is failing to fulfil its main responsibility to maintain international peace and security, and more importantly, to protect (potential) victims. However, less attention has been given to the fact that the veto is often being used in specific circumstances involving jus cogens violations, and consequently to the veto's position vis-à-vis these peremptory norms that enjoy hierarchical superiority compared to all other norms and principles of international law.
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***New*** April |
Ukraine Symposium - Defiance of Russia's Demand to Surrender and Combatant Status | Chris Koschnitzky, Steve Szymanski | Articles of War, 22 April 2022 |
Before its latest shelling of Mariupol, Russia demanded that fighters defending the city surrender, lest they face a "military tribunal." More recently, there were rumblings that Russia was preparing to send law enforcement officers, prosecutors, and court officials to Ukraine. While it is unclear where in Ukraine these officials would go, it seems that any prosecution of the Mariupol fighters would stem from their mere refusal to surrender. If carried out, Russia's threat would unlawfully deny to Ukrainian combatants two key benefits they enjoy under the law of armed conflict—combatant immunity and prisoner of war (POW) status. Moreover, Russia's actions would constitute a war crime and grave breach of the Third Geneva Convention Relative to the Treatment of Prisoners of War (GC III) because it would "willfully depriv[e] a prisoner of war of the rights of fair and regular trial prescribed in this Convention." (GC III, Article 130). Summary extracted by Aspals![]() |
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***New*** April |
The ICRC vs. fake news: Setting the record straight in the First World War | Cédric Cotter | ICRC, 22 April 2022 |
The term "fake news" has been a constant presence in the media for several years now. The deliberate spread of false information seems to have become one of the great perils of our time. Yet the issue is nothing new. In fact, all conflicts give rise to propaganda, in which fake news is mixed in with rumours, information becomes a real weapon of war and the facts seem to be entirely relative. The First World War was no exception and many historians have taken an interest in the spread of rumours about atrocities perpetrated by the enemy, brainwashing and how propaganda was received by civilians at the time.
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***New*** April |
Can the United Nations General Assembly Authorize a No-fly-Zone over Ukraine? | Florian Kriener | Opinio Juris, 15 April 2022 |
As the Russian aggression against Ukraine continues, calls for a no-fly-zone over Ukraine have gotten louder. One of the recipients of this call is the United Nation's General Assembly (GA). In its historic resolution A/ES-11/1 of 2 March 2022, the GA declared that it would only "adjourn" the emergency special session and authorized its President to resume the meeting in order to take further measures (para. 16). Just last week, the GA convened to suspend Russia from the Human Rights Council. Against this backdrop, this post asks whether the GA could authorize UN member states to militarily intervene in the current situation by recommending the establishment of a no-fly-zone. The text of the United Nations Charter (UNCh) suggests otherwise. Yet, in the Uniting for Peace resolution of 1950 the GA assumed that it had the capacity to make such orders
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***New*** April |
The Military Situation In The Ukraine | Jacques Baud | The Postil Magazine, 1 April 2022 |
The "experts" who take turns on television analyze the situation in Ukraine on the basis of dubious information, most often hypotheses erected as facts—and then we no longer manage to understand what is happening. This is how panics are created. The problem is not so much to know who is right in this conflict, but to question the way our leaders make their decisions. Let's try to examine the roots of the conflict. It starts with those who for the last eight years have been talking about "separatists" or "independentists" from Donbass. This is not true. The referendums conducted by the two self-proclaimed Republics of Donetsk and Lugansk in May 2014, were not referendums of "independence" , as some unscrupulous journalists have claimed, but referendums of "self-determination" or "autonomy". The qualifier "pro-Russian" suggests that Russia was a party to the conflict, which was not the case, and the term "Russian speakers" would have been more honest. Moreover, these referendums were conducted against the advice of Vladimir Putin...
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April | Command Responsibility And The Ukraine Conflict | Noelle Quenivet | Articles of War, 30 March 2022 |
News on the conflict in Ukraine is replete with violations of international humanitarian law (IHL), conveying the impression that soldiers have either been ordered to commit these crimes or have been allowed to do so (or a combination thereof). In the latter case, their commanders could be held responsible for their crimes. Commanders are considered particularly empowered to ensure compliance with IHL (Bemba 2016, para. 172). Therefore, they are responsible for crimes committed by their subordinates should they fail to take measures to prevent or punish the commission of such crimes.
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March | Command Responsibility, Australian War Crimes in Afghanistan, and the Brereton Report | Douglas Guilfoyle, Joanna Kyriakakis, Melanie O'Brien | International Law Studies, Stockton Center for International Law Vol. 99 2022 |
This article examines the question of command responsibility for war crimes under international and Australian law, and how far such responsibility extends. It uses the results of the Brereton Report, an Australian investigation into alleged crimes committed by its special forces in Afghanistan, as its starting point. While this is very much an Australian case study, the concerns it raises should be of interest to all professional militaries. In any command responsibility case, key questions will usually include: who knew what, when; and what were they obliged to do about it? The article also provides an important case study of the implications when national legal standards adopted for war crimes prosecutions differ from the provisions of international law.
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March | Was Russia's Attack on the Maternity Hospital in Mariupol a Violation of International Humanitarian Law? | Professor Noelle Quenivet | University of Bristol Law School Blog, 28 March 2022 |
The press has reported numerous instances of attacks by Russian forces on cities, hospitals, airports, nuclear power plants, places of worships, etc. The list is very long. But are all these attacks automatically unlawful, as often claimed in press reports? After explaining the legal framework to determine the lawfulness of these attacks, this post, using the example of the attack on hospitals, and more specifically the maternity hospital in Mariupol, illustrates how the targeting rules apply and argues that, even in the case of an attack against medical facilities, the answer is not always a straight: 'it is unlawful'.
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March | The NATO Treaty Does Not Give Congress a Bye on World War III | Michael J. Glennon | LawFare, 23 March 2022 |
The NATO treaty is widely thought to be an ironclad guarantee that the allies will automatically come to the defense of any member state subject to an armed attack. In the United States, the treaty is popularly understood, further, as authorizing the president to use force under such circumstances without congressional approval. In other words, the belief is that neither the president nor Congress has a choice if a NATO ally is attacked — the United States, like it or not, is then at war.
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March | The War at Sea: Is There a Naval Blockade in the Sea of Azov. | Martin Fink | Articles of War, 24 March 2022 |
Although land operations have garnered most attention, the war between Ukraine and the Russian Federation also rages at and from the sea. During these last weeks, several merchant vessels were attacked and seized, some apparently within the territorial sea of a NATO Member State. Naval mines have been spotted, amphibious operations undertaken, naval fires used on objectives on land, and in the weeks leading up to the war much mention was made of Russia effectively blockading the Sea of Azov. Talks of blockade have since continued, also within the context of the need to find safe corridors for civilians and seafarers to escape the war. But is there really a naval blockade in the Sea of Azov?
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March | Between Relief and War Crimes - 'Humanitarian Corridors' in the Russia-Ukraine War | Kilian Roithmaier | Völkerrechtsblog, 16 March 2022 |
While regularly not compulsory, IHL encourages evacuations of civilians from besieged and encircled cities. Evacuees are protected by the general rules protecting civilians and enjoy absolute immunity against attacks. Hence, attacks against evacuees not only violate the evacuation agreements but also constitute unlawful attacks against civilians under IHL and war crimes.
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March | Sanctions and Self Defence | Anthony Paphiti | LinkedIn, March 12, 2022 |
The United Nations Charter does not authorise any state to use force against another member state, save for the exceptions provided in the event of self defence. Sanctions may be employed, under authorisation of the Security Council, by virtue of art 41. The Security Council has given no such authorisation in the case of Russia's intervention in Ukraine. Clearly, as an aggressor Russia can not legitimately claim to be acting in self defence by taking action against a state, Ukraine, that is itself defending itself or an ally assisting lawfully in its defence. All the same, the imposition of directed sanctions by any state is a measure that may be perceived by the targeted state as hostile, so that it subjectively regards that state as a party to the conflict. In any event, sanctions that have, as one of their purposes, the aim of changing the government (regime change) would constitute a breach of art 2(4) of the Charter and Customary International Law. They would raise the stakes considerably. It is by no means clear that, although the sanctions imposed on Russia are the most severe ever imposed by the United Kingdom, to have had an impact on Russia and its economy, they are not yet at the level where they are causing economic pain that Russia did not anticipate. Indeed, the Russians are contemplating retaliatory measures by reducing gas supplies to Europe and seizing foreign aircraft. If there does come a time when sanctions prompt illegal regime change in Russia, or severely impact Russian life, or the economy, one must try and understand whether the Russian leader of a nuclear power state will perceive this as posing an existential threat.
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March | Model Indictment for Crime of Aggression Against Ukraine: Prosecutor v. President Vladimir Putin | Ryan Goodman and Rebecca Hamilton | Just Security, 14th March 2022 |
The authors present a model of a criminal indictment against President Vladimir Putin for the crime of initiating and executing a war of aggression against Ukraine. The indictment represents the type of document international war crimes prosecutors or national prosecutors could file before an international or national court. The model indictment proceeds using the definition of aggression under international criminal law as set out in Article 8bis of the Rome Statute to the International Criminal Court (ICC).
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March | Russia's Recognition of the Independence of the Donetsk People's Republic and the Luhansk People's Republic: The Revival of the Constitutive Theory of Recognition? | Dr. Sava Jankovic | Opinio Juris, 12 March 2022 |
The recognition of the DPR and LPR by Russia reminds us of the legal importance of international recognition, as well as that it is important from whom the recognition stems. By the overwhelming condemnation by the West, it is evident that the institution of recognition cannot be understood as a mere, insignificant, confirmatory declaration of certain facts. To the contrary, the act of recognition of the DPR and LPR created a new bond between the 'Republics' and Russia creating a sphere of legal interactions, which by non-recognizing states will be considered as a breach of international law.
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March | Accountability And Ukraine: Hurdles To Prosecuting War Crimes And Aggression | Lauren Sanders | Articles of War, 9th March 2022 |
Social media and news outlets are replete with examples of misconduct occurring during the Russian invasion of Ukraine. In fact, this conflict is being conducted under the public eye—more so even than recent conflicts in Syria or Iraq—given the absence of communications denial in the conflict area so far. In the lead up to the invasion, the United States took the unusual step of making its intelligence public, with the intent of stemming the potential for Russia to use disinformation to legitimize its unlawful entry into Ukraine. As the conflict continues to unfold online, so too do reports of breaches of the laws of armed conflict. The documentation by open-source intelligence (OSINT) agencies seeking to provide a service to, among other things, support the eventual prosecution of war crimes committed in the conflict, reinforces a new paradigm for furthering accountability for these crimes.
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March | Special Forces, Unprivileged Belligerency, And The War In The Shadows | Ken Watkins | Articles of War, 8 March 2022 |
The February 24, 2022 invasion of Ukraine resulted in news reports of fear in the streets of Kyiv as Ukrainian forces engaged in "a frantic hunt for spies and traitors," as well as saboteurs and teams seeking to kill President Zelensky and 23 other leaders within Ukraine. Russian forces are reported to have included special forces troops (in U.S. terminology: Special Operations Forces), as well as private militia from the Wagner Group. In addition to Russians being found in civilian clothes it is alleged that special forces may have also donned Ukrainian military uniforms, and used captured Ukrainian and Organization for Security and Cooperation in Europe vehicles to mask operations.
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March | Armed Ukrainian Citizens: Direct Participation in Hostilities, Levée en Masse, or Something Else? | Emily Crawford | EJIL Talk!, 1 March 2022 |
As Russia began its invasion of Ukraine, media reports were noting the increasing involvement of Ukrainian civilians in the defence of their country. Initial reports spoke of civilian volunteers, spontaneously taking up arms to resist the Russian invaders. As the situation rapidly progressed, news emerged that the Ukrainian government had called on all Ukrainians to defend their homeland with reports that, by Friday 25 February, more than 18,000 rifles had been passed out to civilian defence forces in Kyiv. This civilian involvement in the defence of Ukraine takes place alongside both the conventional military defence of the state, and more organised paramilitary and militia groups who have been training for the potential invasion of Ukraine since Russia annexed Crimea in 2014.
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February | Aggression and the Veto | Jennifer Trahan | Opinio Juris, 28 February 2022 |
Let us be clear why the United Nations is largely paralyzed in the face of one of the clearest cases of aggression since 1939: it is because of the veto power of a permanent member of the UN Security Council, used without any regard for other aspects of international law. Friday's veto has shown the Security Council unable even to condemn unprovoked aggression by the Russian Federation into Ukraine (see GIPA statement), which is a strong indication that the Security Council will also be unable to take any actual measures, such as referral to the International Criminal Court ("ICC"), which has jurisdiction to investigate and prosecute the crime of aggression (Rome Statute, Arts 5(1), 8bis, 15bis, 15ter.
Summary extracted by AspalsPurposes and Principles(UN Charter, Arts. 1-2), and (3) other treaty obligations. ![]() |
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February | Ukraine: Debunking Russia's legal justifications - Russia is violating international law in Ukraine using baseless allegations, and states' responses should be guided accordingly. | Elizabeth Wilmshurst CMG | Chatham House, 24 February 2022 |
Russia has begun a large-scale military attack on Ukraine, having first declared it recognizes Donetsk and Luhansk as separate states. It scarcely needs saying Russia is violating international law – violating the prohibition in the United Nations (UN) Charter on the use of force, violating the obligation to respect the sovereignty and territorial integrity of other states, and violating the prohibition on intervention.
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February 2022 | What is Russia's Legal Justification for Using Force against Ukraine? | Marko Milanovic | EJIL Talk February 24, 2022 |
With missile and aerial strikes across Ukrainian territory and Russian ground forces entering Ukraine from multiple directions, there is now no doubt that the Russian Federation has used 'force' in the sense of Article 2(4) of the UN Charter against Ukraine, and has done so on a large scale. The burden is now on Russia to attempt to justify this use of force in legal terms. As the ICJ held in Nicaragua, para. 266, it is not for the Court to 'ascribe to States legal views which they do not themselves formulate.' We should take into account only those justifications that Russian government officials themselves formally offer, and evaluate them objectively.
Summary extracted by AspalsPresident Putin's speech made three possible arguments. First, that Russia is using force in self-defence, pursuant to Article 51 of the Charter, to protect itself from (some kind of) threat emanating from Ukraine. This on the facts looks like a theory of preemptive self-defence (shades of George W. Bush). Needless to say, 99.9% of international lawyers, would hold that any such theory of preemption is categorically incompatible with Article 51. Second, as an argument of collective self-defence of the (supposedly independent) Donetsk and Luhansk republics. The validity of that argument would of course depend on whether these two entities are in fact states (they are not, and they did not become such simply because President Putin signed a piece of paper), and on whether Ukraine attacked these two new supposed states. But even if this argument was taken at face value, the extent of Russia's military intervention appears impossible to square with the customary criteria of necessity and proportionality. Finally, there is something like a humanitarian intervention argument – that Russia is acting to stop/prevent a 'genocide' of Russians in Eastern Ukraine. But, humanitarian intervention is rejected as a valid exception from the prohibition on the use of force by the vast majority of international lawyers. And President Putin's speech does not emphasize this point anyway, nor does he use the words 'humanitarian intervention' or anything similar. His argument does appear to be primarily or solely one of self-defence, individual or collective, and should be evaluated as such. ![]() |
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February | Moscow's fabrication of excuses for renewed war - - Creating reasons to 'legitimize' a military intervention has long been part of the Kremlin playbook, and the Ukraine crisis has proved no different | Mathieu Boulègue | Chatham House, 24 February 2022 |
Many 'false flag' operations recently deflected attention and concealed Russia's plans for military action against Ukraine, such as the reported explosion of a gas pipeline in Luhansk, the use of a non-existent 'threat' that Ukraine might try to retake Donbas by force because of a reported 'genocide', or the general mobilization of separatist troops in occupied Donbas.
Summary extracted by AspalsRussia's war termination strategy will unfold only if, and when, the Kremlin believes it has reached an acceptable outcome – in other words, when Moscow can credibly declare a form of victory. The problem is no-one knows what endgame is acceptable to the Russian elite, what 'success' looks like for the Kremlin, and what Russia considers its desired end state over Ukraine. One thing is sure however – the human cost is likely to be extremely high, both in terms of casualties and refugees. Three main factors are now impacting Moscow's timeline. The first is Ukraine's broader military response – especially the ability of the Ukrainian armed forces to mount a rapid counter-offensive to protect the country. The second is Russian public sentiment regarding the war, especially when the 'body-bag count' starts piling up. And the third is the scope and scale of the international response. ![]() |
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February | Democracies and War Propaganda in the 21st Century | Dr Piers Robinson | Researchgate, January 2022 |
In general academics, politicians and publics do not have a very strong grasp of the role of propaganda within democracies. Indeed, across elite groups in society, which include politicians, journalists who work for the corporate media and major public service outlets and academics, the idea that propaganda is central to democratic societies is usually met with laughter or anger. The idea that the public mind is being manipulated by powerful actors is sometimes treated as absurd or simplistic. At the same time, those people who are a part of the elite political centre ground perceive themselves as free from the influences of propaganda, uniquely positioned to understand what is true and what is false in the world around them. Propaganda might be something that the extreme right or the extreme left partake in, or it might be a problem with respect to foreign interference (witness the claims regarding alleged Russian meddling in Western politics), but it is not a problem vis-à-vis 'mainstream' media and political discourse.
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January | Cyber in Hybrid Threats – Acute and Present Danger to Our Society | Carmen Marsh, Håkan Gunneriuson, Josef Schroefl, Madeleine Myatt | Cyber Security Winter 2022 Issue |
The power of cyber in hybrid conflicts" was a hot topic at the recent European Center of Excellence (CoE) for Countering Hybrid Threats – "Cyber Power Symposium 2021" in Helsinki, Finland on November 10, 2021. This exclusive symposium brought together international experts to discuss critical subjects and share their insights about ways to counter hybrid threats. Research findings of "Countering Hybrid Threats and Securing Global Supply Chain with Help of AI" were presented to this group of global experts. It becomes too apparent that we must no longer stay siloed in our approach to securing our digital and physical infrastructure; however, we must actively engage in serious conversations with our global cybersecurity/hybrid threats community. We acutely need an improved global strategy for countering hybrid threats.
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