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Last Year's List

Date Title Author Reference
***New***
August
Information Warfare in Russia's War in Ukraine - The Role of Social Media and Artificial Intelligence in Shaping Global Narratives Christian Perez Foreign Policy,
August 2022
In the lead-up to Russia's invasion of Ukraine, and throughout the ongoing conflict, social media has served as a battleground for states and non-state actors to spread competing narratives about the war and portray the ongoing conflict in their own terms. As the war drags on, these digital ecosystems have become inundated with disinformation. Strategic propaganda campaigns, including those peddling disinformation, are by no means new during warfare, but the shift toward social media as the primary distribution channel is transforming how information warfare is waged, as well as who can participate in ongoing conversations to shape emerging narratives.
Summary extracted by Aspals

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***New***
August
The Underwhelming Performance of Russian Land Forces Electronic Warfare - What Happened? Thomas Withington Defence Horizon Journal
August 19, 2022
On the 24th of February 2022, the Russian Armed Forces invaded Ukraine. Spearheaded by the army, the land element saw Russia's largest ever combat deployment of Electronic Warfare (EW) systems. This article examines the application of EW by Russia's land forces during the first phase of the invasion, which concluded in early April when Russian troops pulled back from Kyiv. It will detail the EW assets deployed by Russian ground forces, their targets, and their effectiveness. The article will draw conclusions on Russia's deployment of EW to support its manoeuvre forces during this phase of the conflict.
Problem statement: How to understand the role of EW assets in the Russian Land Forces' operations in Ukraine in the war's initial phase and what this may mean for NATO and allied nations in the future?
Bottom-line-up-front: The indispensable role that the electromagnetic spectrum plays in modern military operations means that it cannot be ignored.
So what?: Forces must learn to manoeuvre in this spectrum as they do on the oceans, on land, in the air, and in space. Failure to master manoeuvre in the electromagnetic spectrum can risk the success of manoeuvre in the physical domains.
Summary extracted by Aspals

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***New***
August
What was the International Legal Basis for the Strike on al-Zawahiri? Craig Martin Just Security,
9 August 2022
The killing of al-Qaeda leader Ayman al-Zawahiri in a CIA drone strike has been touted as a political win for President Joe Biden, a vindication for an over-the-horizon counter-terrorism strategy, and even as "justice served." Yet there appears to be little interest in whether it was lawful. The media has not seriously raised the question, the punditry has not addressed it, and the government has not yet provided any official legal basis for the killing (to be fair, some law and policy blogs, such as Lawfare, Just Security, and Articles of War, have begun to address it). This disregard is problematic, as there are indeed serious questions as to the lawfulness of this strike – and people should be demanding answers.
Summary extracted by Aspals

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***New***
August
To Surrender or to Fight On? A Human Rights Perspective on Self-Defense Frédéric Mégret Springer,
9 August 2022
The traditional international law of self-defense provides little indication about how far states should be willing to defend. That choice is better understood as constrained, beyond the jus in bello and the jus ad bellum, by human rights norms that implicate responsibilities of the sovereign vis-à-vis its own population. Different conceptions of human rights, however, underscore different possible theories of the extent of self-defense. The main polarity is between a conception of self-defense as protecting bare life and a conception of self-defense as protecting collective self-determination. In the practice of justifying particular uses of self-defense, these foundations are constantly and dynamically re-articulated to justify fighting on, surrendering, or negotiating. This raises questions about the impact of conditions of uncertainty, different conceptions of agency, and the role of the international community. Ultimately, the article suggests that self-defense radicalizes anxieties about the foundation and finality of rights.
Summary extracted by Aspals

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***New***
August
Ukraine: Ukrainian fighting tactics endanger civilians Amnesty International Report,
4 August 2022
Ukrainian forces have put civilians in harm's way by establishing bases and operating weapons systems in populated residential areas, including in schools and hospitals, as they repelled the Russian invasion that began in February. Such tactics violate international humanitarian law and endanger civilians, as they turn civilian objects into military targets. The ensuing Russian strikes in populated areas have killed civilians and destroyed civilian infrastructure. "We have documented a pattern of Ukrainian forces putting civilians at risk and violating the laws of war when they operate in populated areas," said Agnès Callamard, Amnesty International's Secretary General.
Summary extracted by Aspals

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***New***
August
The Law and Politics of Ransomware Asaf Lubin Vanderbilt Journal of Transnational Law,,
Vol. 55, 2022
What do Lady Gaga, the Royal Zoological Society of Scotland, the city of Valdez in Alaska, and the court system of the Brazilian state of Rio Grande do Sul all have in common? They have all been victims of ransomware attacks, which are growing both in number and severity. In 2016, hackers perpetrated roughly 4,000 ransomware attacks a day worldwide, a figure which was already alarming. By 2020, however, "attacks leveled out at 20,000 to 30,000 per day in the US alone." That is a ransomware attack every 11 seconds, each of which cost victims on average 19 days of network downtime and a payout of over $230,000. In 2021, global costs associated with ransomware recovery exceeded $20 billion.
This Article offers an account of the regulatory challenges associated with ransomware prevention. Situated within the broader literature on underenforcement, the Article explores the core causes for the limited criminalization, prosecution, and international cooperation that have exacerbated this wicked cybersecurity problem. In particular, the Article examines the resource allocation, forensic, managerial, jurisdictional, and informational challenges that have plagued the fight against digital extortions in the global commons.
To address these challenges the Article makes the case for the international criminalization of ransomware. Relying on existing international regimes––namely, the 1979 Hostage Taking Convention, the 2000 Convention Against Transnational Crime, and the customary prohibition against the harboring of terrorists––the Article makes the claim that most ransomware attacks are already criminalized under existing international law. In fact, the Article draws on historical analysis to portray the criminalization of ransomware as a "fourth generation" in the outlawry of Hostis Humani Generis (enemies of mankind).
The Article demonstrates the various opportunities that could arise from treating ransomware gangs as international criminals subject to universal jurisdiction. The Article focuses on three immediate consequences that could arise from such international criminalization: (1) Expanding policies for naming and shaming harboring states; (2) Authorizing extraterritorial cyber enforcement and prosecution; and (3) Advancing strategies for strengthening cybersecurity at home.
Summary by Aspals

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July Pathways to Russian Escalation Against NATO from the Ukraine War Bryan Frederick, Samuel Charap, Scott Boston, Stephen J. Flanagan, Michael J. Mazarr, Jennifer D. P. Moroney, Karl P. Mueller RAND Corporation,
July 2022
The potential for further escalation in the ongoing war in Ukraine is a significant concern. Although much of this escalation will surely be directed against Ukrainian forces and civilians, horizontal escalation by Russia - that is, the act of expanding the conflict to include other actors, specifically the United States and its North Atlantic Treaty Organisation (NATO) allies—has become plausible, though not inevitable. It is this prospect of horizontal escalation that poses perhaps the most acute of dilemmas for U.S. policymakers who are trying to help Ukraine while simultaneously avoiding a great power war. This Perspective describes four plausible horizontal escalation pathways. To develop these pathways in a timely manner, we did not conduct new research but instead drew from RAND Corporation expertise in Russian foreign policy, Russian and Ukrainian military capabilities, U.S. and NATO militaries, and deterrence and escalation dynamics.
This Perspective summarizes the most plausible pathways that could lead to a Russian decision to target NATO member states during the current conflict, describes the circumstances under which Moscow might undertake such actions, and lays out how U.S. and allied actions - including ongoing military assistance to Ukraine — could affect each pathway's likelihood.
Summary extracted by Aspals

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July The Modern History of Economic Sanctions, A review of Nicholas Mulder's book Henry Farrell (Nicholas Mulder) [Lawfare]
(Yale University Press, 2022)
March 1, 2022
The reviewer, Professor Farrell, writes that the book remakes debates over European history between the two world wars. It rescues the League of Nations from the enormous condescension of posterity, arguing that the league was neither ridiculous nor doomed. However, it also demonstrates that the league's actual and possible successes helped provoke Germany's and Japan's territorial ambitions. The league's authority rested less on futile moral imprecations than on economic and financial sanctions. Those sanctions were more effective than most modern commentators have accepted, but they spurred a fierce counterreaction. Liberal politicians' ambition to create a world that was safe from territorial aggression provoked illiberal states into greater aggression. Today—in a world in which sanctions have again come to play a crucial role in international politics—we need to understand why they went so very badly in the past.
No amount of lawyers' arguments can conceal the relationship between sanctions and war. The more that sanctions bite, the more willingly their targets will turn to other means, including military aggression, to retaliate. International economic coercion is the dark shadow cast by the global liberal economy. Sanctions would not be nearly so effective in a world where liberalism had not won. Sanctions are often unpredictable in their consequences. Targeted countries might see sanctions as an "existential threat … requiring a military response … initiating [what one of Nazi Germany's] historians has called 'a spiral of insecurity whose end could not be foreseen.'"
Summary extracted by Aspals

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July Situation Of Human Rights In Ukraine In The Context Of The Armed Attack By The Russian Federation 24 February-15 May 2022 Office of the Human Rights Commission OHCHR Report,
29 June 2022
This report by the Office of the High Commissioner for Human Rights (OHCHR) covers violations of international humanitarian law (IHL) and international human rights law that have occurred in the course of the ongoing armed attack by the Russian Federation against Ukraine. It covers the period from 24 February 2022 until 15 May 2022 and is based on the work of the United Nations Human Rights Monitoring Mission in Ukraine. During the reporting period, OHCHR recorded a total of 8,368 civilian casualties, with 3,924 persons killed and 4,444 persons injured. At least 95 girls, 98 boys, 985 women, 1,519 men and 1,227 persons whose sex is still unknown were killed from 24 February to 15 May, and at least 104 girls, 126 boys, 604 women, 907 men and 2,703 persons whose sex is still unknown were injured. However, actual casualty numbers are much higher, since these figures only include the cases that OHCHR has been able to fully verify. The armed conflict has led to a wide range of human rights violations of both civilians and combatants, including the rights to life, liberty and security of persons. OHCHR verified numerous allegations of killings and summary executions, of arbitrary detention and enforced disappearance, of torture and ill-treatment, and of conflict-related sexual violence.
OHCHR documented numerous cases of the widespread use of extrajudicial punishment against individuals alleged to be marauders, thieves, bootleggers, fake volunteers (fraudsters), drug dealers and curfew violators. During the reporting period, OHCHR documented 89 such cases (80 men and 9 women) in territory controlled by the Government of Ukraine and 3 cases in territory controlled by the Russian Federation and affiliated armed groups.
The treatment of prisoners of war by the parties also raised serious concerns. OHCHR viewed an abundance of videos publicly available online depicting interrogation, intimidation, insults, humiliation, ill-treatment, torture and summary executions of prisoners of war on both sides. It has also received numerous other allegations of torture of prisoners of war by both sides, including through 44 interviews with prisoners of war.
Summary extracted by Aspals

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July Considerations for the Setting up of The Special Tribunal for Ukraine on the Crime of Aggression Professor David M. Crane, Kanalya Arivalagan, Rohan Bhattacharjee, Lotta Lampela Ukraine Task Force of The Global Accountability Network,
2022
The international crime of aggression, stemming from the crimes against peace theories of Nuremberg, has risen to the forefront of international concern related to the invasion of Ukraine by Russian Federation forces. The invasion is, purely and simply, an act of aggression. Aggression has not yet been prosecuted in the modern era, as the International Criminal Court currently does not have the jurisdiction to prosecute this international crime perpetrated in Ukraine as discussed in Section IV.A.2. Thus, a new justice mechanism must be created.
This white paper lays out a practical way by which the crime of aggression can be investigated and prosecuted through the establishment of an international tribunal for Ukraine just as it has been done successfully in Sierra Leone. The Special Court for Sierra Leone (SCSL) showed that the UN and a Member State can enter into a bilateral treaty to create an international court to prosecute military and political leaders for committing international crimes, including the prosecution of a sitting Head of State.
Summary extracted by Aspals

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July NATO 2022 Strategic Concept NATO/OTAN NATO,
June 2022
The Heads of State and Government of the NATO Allies (HoS), came together in Madrid at a critical time for our security and for international peace and stability and endorsed a new Strategic Concept to ensure our Alliance remains fit and resourced for the future. For more than seventy years, NATO has ensured the freedom and security of Allies. Its success is the result of the service and sacrifice of the women and men of our armed services. We owe them and their families a great debt of gratitude.
HoS remain steadfast in their resolve to protect their one billion citizens, defend their territory and safeguard their freedom and democracy. HoS will reinforce their unity, cohesion and solidarity, building on the enduring transatlantic bond between their nations and the strength of their shared democratic values. They reiterate their steadfast commitment to the North Atlantic Treaty and to defending each other from all threats, no matter where they stem from.
Summary extracted by Aspals

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June 2022 The Sad and Cynical Spectacle of the Draft British Bill of Rights Marko Milanovic EJIL Talk!,
23 June 2022
It is a habit peculiar to autocracies to choose names for themselves that are the exact opposite of their true nature - viz. the 'Democratic People' s Republic of Korea' - and to have constitutions loudly proclaiming the protection of individual rights that are routinely trampled upon in practice. You would have hoped that one of the world' s oldest democracies, the United Kingdom, would not work from the same style manual. But it's 2022 and apparently anything goes - so yesterday the UK Government thus finally unveiled its long-promised and awaited draft Bill of Rights, which will now be considered by Parliament. Let's hope that Parliament actually manages to do so something with this Bill - not that we should hope much - because what the Government has produced, contrary to the conclusions of even the independent review that it had itself set up, is nothing short of an embarrassment.
Bottom line: there is no normative justification of any kind to give British armed forces a form of domestic judicial immunity, which is what the Bill does. Imagine if some other state enacted the same law. Would we really be content to say that the conduct of the Russian armed forces in Ukraine is not a human rights issue, or should not be properly scrutinised by courts? None of the killing, none of the destruction of the cities, none of the rape, none of the deportations, none of the surveillance of the population - none of it? How could this position by justified by any broader principle other than political expediency? And even on political expediency, how can British politicians argue to their electorate that British soldiers should also have no judicial remedies against the state?
Summary extracted by Aspals

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June China's New Way of War Judith Bergman Gatestone Institute,
17 June 2022
"Chinese thinkers have clearly stated that the core operational concept of intelligentized warfare is to directly control the enemy's will. The idea is to use AI to directly control the will of the highest decision-makers, including the president, members of Congress, and combatant commanders, as well as citizens." — Colonel Koichiro Takagi, senior fellow of Training Evaluation Research and Development Command, Japan Ground Self-Defense Force, War on the Rocks, April 13, 2022.
"War has started to shift from the pursuit of destroying bodies to paralyzing and controlling the opponent. The focus is to attack the enemy's will to resist, not physical destruction" and to cause "the brain to become the main target of offense and defense of new concept weapons... To win without fighting is no longer far-fetched."
Summary extracted by Aspals

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June Sexual and Gender-Based Violence against Women in the Russia-Ukraine Conflict Melanie O'Brien and Nöelle Quénivet EJIL Talk,
8 June 2022
In April 2022, it was reported that Ukrainian law enforcement intercepted a phone call between a Russian soldier and his wife. In the phone call, they joked about the soldier raping Ukrainian women. His wife told him, "Yes, I allow it. Just wear protection". The shockingly cavalier attitude of these two young Russian people towards rape emanates from the traditionally gendered nature of war and a history of Russian soldiers carrying out the rape of women with impunity.
Since Brownmiller's book Against our Will, which retraced the history of rape in armed conflicts and propounded the idea of the almost inevitability of sexual violence perpetrated by women against men in armed conflict, masculinity has emerged in academic scholarship as a category of analysis to understand soldiers' behaviour.
The Office of the Prosecutor (OTP) of the ICC is already deep into investigations into crimes under its jurisdiction committed in the Ukraine-Russia conflict. The Rome Statute contains provisions for sexual violence as war crimes (Art. 8(2)(b)(xxii)) and crimes against humanity (Art. 7(1)(g)).
Any domestic prosecutions, including in Ukraine, must also emphasise the gendered nature of these crimes. Past impunity for sexual and gender-based crimes by Russians, in conflict and peacetime, has created a culture of acceptance for violence against women. Whether in international or domestic jurisdictions, ensuring accountability for sexual and gender-based crimes committed in Ukraine will help change culture. Accountability will act as a deterrent for these crimes in the Ukraine-Russia conflict as well as other conflicts around the world, and hopefully also be conducive to a decrease in violence against women in peacetime Russia.
Summary extracted by Aspals

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May War crimes trial of Russian soldier was perfectly legal – but that doesn't make it wise Professor Robert Goldman The Conversation,
22 May 2022
The war crimes trial of a Russian soldier, Vadim Shishimarin, in Ukraine – which concluded on May 23, 2022 with a conviction and life sentence for the defendant – was permissible under international law. And with the eyes of the world on them, Ukrainian authorities would have wanted the proceedings to be played entirely by the book. But nonetheless, conducting a war crimes trial during active hostilities, and by a civilian court, is not normal. Nor may it be wise.
There is nothing in international law prohibiting war crimes trials taking place during hostilities. Nonetheless, some commentators have expressed concerns about the practice. In one of its commentaries on the Geneva Conventions, the International Committee of the Red Cross expressly warned against war crimes trials proceeding during wartime. The commentaries, which collectively are seen as the authorities on interpreting the conventions, note that it is difficult for an accused person "to prepare his defense during hostilities." The trial in Ukraine is unusual for another reason that the author finds concerning: It is taking place in a civilian court, not a military one. And an issue central to the Russian soldier's case – whether the civilian killed could be seen as a legitimate target – is a highly technical area that only an expert of the law of war will understand.
The optics of Vadim Shishimarin being tried during wartime by a detaining authority engaged in conflict raises questions over the confession.
Summary extracted by Aspals

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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.
Summary extracted by Aspals

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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.
Summary extracted by Aspals

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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).
In this post, the authors examine the Russian threat in the context of combatant status. They demonstrate that compliance with or defiance of Russia's surrender demand is an irrelevant consideration when determining whether an individual is entitled to that status and its accompanying privileges...
Summary extracted by Aspals

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April New Tech, New Concepts: China's Plans For AI And Cognitive Warfare Colonel Koichiro Takagi War on The Rocks,
13 April 2022
The United States and its allies may have built the Maginot Line of the information age. But just as the German armored units broke through the Ardennes Forest in ways the French did not expect, so the Chinese People's Liberation Army may break through the United States' information-age arsenal, no matter how cutting-edge, if the technology remains tied to the operational concepts of a previous era. China is developing a new concept of warfare, which they call intelligentized warfare. First mentioned by the government in 2019, it is an innovative military concept with a focus on human cognition, which Beijing intends to use to bring Taiwan under its control without waging conventional warfare. However, only a few of the many studies on intelligentized warfare have focused on this aspect of human cognition.
This article analyzes the essence of China's intelligentized warfare, its possibilities, and limitations, and suggests measures that the United States and its allies should take.
Summary extracted by Aspals

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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.
Summary extracted by Aspals

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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
Summary extracted by Aspals

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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...
Summary extracted by Aspals

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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.
This post examines the responsibility of military commanders in the conflict in Ukraine in light of Article 28(a) of the Statute of the International Criminal Court (ICC). After defining command responsibility, this post categorizes the forces present on the ground. It then delves into and applies the elements of command responsibility to the categories of forces present in Ukraine.
Summary extracted by Aspals

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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.
Summary by Authors

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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'.
The relevant legal framework to determine the lawfulness of a military target is international humanitarian law (IHL), a regime that only applies in the situation of an armed conflict. The conflict in Ukraine is undoubtedly an international armed conflict (Common Article 2 of the Geneva Conventions (GCs)) as it involves two State parties. One might even argue that it is the continuation of the international conflict that started in 2014 when Russia annexed Crimea. Consequently, all four Geneva Conventions of 1949 and their Additional Protocol I (API) of 1977, as well as those rules of customary international humanitarian law (CIHL) that arise based on the practice of States apply.
Summary extracted by Aspals

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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.
That understanding is mistaken. The NATO treaty does not require the United States or any other party automatically to go to war if a party is attacked. The treaty provides that an attack on one is an attack on all—but it leaves each nation free, in accordance with its own "constitutional processes," to determine whether an armed attack has occurred and to take such action "as it deems necessary" in response.
Summary extracted by Aspals

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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?
Summary extracted by Aspals

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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.
In addition, civilians must not be coerced to evacuate as a result of systematic violations of IHL. There is also a strong indication that evacuation routes that require nationals of one belligerent party to relocate into the territory of the adverse party are prohibited. If not complying with these requirements, evacuations can amount to forced displacement. The widespread patterns of indiscriminate attacks and attacks against the civilian population by Russian forces in connection with Russia's proposal of establishing evacuation corridors into its own territory, suggest that the proposed humanitarian corridors indeed amount to forced displacement of civilians.
Summary extracted by Aspals

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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 Chapter VII, including 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).
The ICC does not have jurisdiction to prosecute the crime of aggression in this scenario, but the authors draw on the Rome Statute definition because it is one of the most narrow definitions of the crime of aggression and because it was carefully drafted to ensure that it does not go beyond existing general customary international law.
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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.
It is unrealistic to expect that the inter-subjectivist perception of the DPR and LPR statehoods will broaden, which means that both 'Republics' will not be able to exercise all attributes of statehood universally (avail of international judiciary, join the UN etc.). They will remain de facto states, unless they decide to follow in the Crimean footsteps and become part of Russia.
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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.
As Ukraine is not a member of the ICC, the normal route for an ICC investigation would be a United Nations Security Council Resolution (UNSCR), however, this will obviously not be forthcoming due to Russia's status as a permanent member with a veto power. However, as Ukraine voluntarily subjected itself to the jurisdiction of the ICC for offenses committed on its territory since April 2014, the Prosecutor was able to open a preliminary examination of the conflict. This examination concluded with the Prosecutor indicating he would seek authorization to commence an investigation into the situation. Subsequently, thirty-nine countries promptly referred the situation to the Court which enlivened the jurisdiction of the Prosecutor to investigate the situation without requiring either a UNSCR or Court decision and giving him authority to investigate serious breaches of the laws of armed conflict....
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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.
It is clear that both Russia and the Ukraine are employing specialized forces in circumstances where issues related to lawful combatancy and the possible commission of war crimes may arise. Such employment raises complex factual and legal issues that military commanders of both countries, and those seeking to hold them accountable must direct their attention. In this respect, particularly considering the potential for paramilitary and other groups not part of the armed forces to be engaged in combat treating all captured fighters to the standard of POWs until their status and disposition can be officially determined provides the most efficient, effective, and humane course of action.
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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.
Media reports have called these groups and individuals various terms – paramilitary groups, militia, resistance fighters – often interchangeably. But these terms have distinct definitions and threshold requirements under the international law of armed conflict (LOAC), and it's worthwhile to consider them now – how exactly does international law view civilians engaged in armed conflict against an invader and what are the implications under international law if those civilians are captured or killed by Russian forces? To ascertain this, we need to look to the law on the status of combatants and civilians under LOAC.
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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.
There is, of course, the possibility of using the Uniting for Peace Resolution, which would allow matters blocked before the Security Council to be taken up by the General Assembly (which is also free to debate them without such a resolution). Indeed, all such measures that the General Assembly can utilize should be explored. Yet, the General Assembly does not have the same competence as the Security Council, so there are measures the Security Council may take under the UN Charter that the General Assembly cannot.
The thesis of the author's book is that vetoes in the face of genocide, crimes against humanity, or war crimes need to be measured against the legal obligations within the remainder of the system of international law, and not treated as if they were above all law. Specifically, these include: (1) obligations to respect jus cogens, (2) obligations to respect the UN Charter, including its Purposes 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.
But Russia is using the language of the law to defend its actions. In all the recent verbiage of President Vladimir Putin, some attempts at legal arguments can be elicited – but they do not stand up to scrutiny.
Russia has presented itself as a defender of international law – in 2016, Russia and China made a joint declaration 'on the Promotion of International Law'. Russia would do well now to call to mind the reaffirmation in its declaration of 'the principle that States shall refrain from the threat or use of force in violation of the United Nations Charter' as well as the statement that 'sovereign equality is crucial for the stability of international relations'.
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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.
President 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.
Russia'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.
This chapter takes issue with this belief so far as it applies to war and conflict and argues that war propaganda is central to contemporary democracies and, in fact, so central that democratic credentials of those states is in doubt. The chapter starts by defining what is meant by the term propaganda, describing its historical roots and helping explain the current lack of awareness of propaganda. The chapter then explores the case of the 2011-2019 Syrian war in order to highlight some of the key features of propaganda activities in contemporary democracies (focusing on the United Kingdom). This exploratory case study, based upon on-going research, indicates the multiple sites at which propaganda can be seen to be generated and, more broadly, helps us to understand how and why publics have been misled as to the reality of Western government involvement in the Syrian war. In conclusion, it is argued that it is untenable to see the Syrian War propaganda as an aberration or unique case and that, instead, it is indicative of a malaise in contemporary democracies. Until these propaganda activities are properly addressed, genuinely democratic politics involving honest and consensual debate will remain out of reach.
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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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