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Last Year's List |
Date | Title | Author | Reference |
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***New*** May |
The provision of weapons and logistical support to Ukraine and the jus ad bellum | James Green | Journal on the Use of Force and International Law], Volume 10, 2023 - Issue 1 15 May 2023 |
This editorial considers the support currently being supplied to Ukraine following Russia's ongoing full-scale invasion, which began in February 2022. Western states have provided significant aid to Ukraine in the form, inter alia, of modern weapons and training. This editorial asks whether that support is in itself a use of force in prima facie violation of Article 2(4) of the UN Charter and customary international law. A related question that is also considered is whether NATO member states (and others) are currently exercising the right of collective self-defence in relation to their support for Ukraine.
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***New*** May |
Should Have Known Better? The Standard of Knowledge for Command Responsibility in International Criminal Law | Roee Bloch | Stockton Center for International Law, 100 INT'L L. STUD. 312 (2023) |
The concept of holding commanders responsible for the behavior of their subordinates is as ancient as it is contentious. It is natural to refer to the Chinese strategist and philosopher Sun Tzu for one of the earliest expressions of the impact a commander has over the conduct of subordinates, dating back to the fifth century BCE: "When troops flee, are insubordinate, distressed, collapse in disorder, or are routed, it is the fault of the general. None of these disorders can be attributed to natural causes." The Roman
statesman Cicero resounded the assertion that a commander must bear some responsibility for the transgressions of subordinates as far back as the first century BCE. Historically, various theatres of war have put to the test the question of command responsibility for crimes committed by subordinates, and judicial bodies subjected its legal implications to vehement discourse. This does not come as a surprise when one considers the high stakes involved in such criminal legal discourse where commanders face trial—and the potential loss of life or liberty—for atrocity crimes attributed to them, despite those crimes not being directly committed by the commander.
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***New*** May |
Russia and China expected to renew their espionage vigour | Dries Putter and Sascha-Dominik Dov Bachmann | Journal on Baltic Security 2023; 9(1): X-XX 14 February 2023 |
This article argues that both Russia and China will re-invigorate and expand their international espionage activities. Russia's renewed vigour in engaging in aggressive espionage campaigns is due to the current setbacks that it is facing as a result of its ill-fated invasion of Ukraine. The sanction-induced prohibitions that limit access to state-of-the-art technologies will unleash renewed enthusiasm to obtain these latest technologies by covert means, be it HUMINT and/or cyber espionage. The future robustness of China's aggressive espionage activities is projected to be fuelled by its systematic 'de-coupling' from those nations leading in science, engineering and technology,such as the United States, as well as the growing opposition to the use of developmental institutions such as the Confucius Institute and the Belt and Road Initiative (BRI) as intelligence collection platforms. This article predicts that as Russia and China become 'outsiders', they will becoming increasingly aggressive in their espionage campaigns as pragmatic states acting in survival and developmental mindsets, and it elaborates on some of the more relevant forms of espionage employed.
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***New*** April |
Closing a Legal Gap on Crimes Against Humanity | Melissa Hendrickse | Opinio Juris, 16 April 2023 |
This April, UN member state delegates gathered in New York to start considering the Draft Articles on Prevention and Punishment of Crimes against Humanity at the UN General Assembly's Sixth (Legal) Committee. The meeting represented an important step in the path towards the development of an international treaty specifically on crimes against humanity. The Draft Articles were adopted by the International Law Commission (ILC) in 2019 already, after six years of discussion, but further action by states was blocked since by geopolitical wrangling in the Sixth Committee. This only changed in late 2022. It does not seem far-fetched that Russia's full-scale invasion of Ukraine earlier that year contributed to renewed interest in this topic and the desire to move forward.
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March | The Legality Of Depleted Uranium Shells And Their Transfer To Ukraine | Stuart Casey-Maslen | Articles of War, 24th March 2023 |
The decision by the United Kingdom (UK) in March 2023 to transfer depleted uranium tank shells to Ukraine provoked a fierce reaction from senior Russian political and military officials. President Vladimir Putin warned that Moscow would "respond accordingly, given that the collective West is starting to use weapons with a 'nuclear component'."Sergei Shoigu, Russia's Minister of Defence, claimed that the decision left "fewer and fewer steps" before a potential "nuclear collision" between Russia and the West. Given the heated rhetoric, this post assesses the legality under the law of armed conflict of the use of depleted uranium shells as a means of warfare, as well as the compatibility of the UK's decision on transfer with its obligations under international law, including disarmament law.
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March | Ukraine, Lawfare, and the ICC's Arrest Warrant for Vladimir Putin | Professor Sascha-Dominik (Dov) Bachmann | Australian Institute of International Affairs 23 March 2023 |
Russia is well known for employing hybrid warfare tactics, including the use of lawfare to achieve its aims. Those same tactics are now being used by Ukraine in its pursuit of global sanctions against Putin. This week the International Criminal Court at The Hague (ICC), the world's first permanent criminal court, issued an international arrest warrant for Russia's president Vladimir Putin and Ms Maria Alekseyevna Lvova-Belov, a Russian politician and the Russian Commissioner for Children. The arrest warrant alleges that both are responsible for war crimes, namely the "deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation." Such acts qualify as war crimes under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the ICC's Statute, the Rome Statute of the International Criminal Court. This development is significant in terms of its potential legal and diplomatic consequences, but also in terms of what motivated Ukraine, as a non-state party to the ICC, to accept the court's jurisdiction and allow for any investigation of crimes committed – even by the Ukrainian military.
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March | "Strict" Versus "Qualified" Neutrality | Michael N. Schmitt | Articles of War, 22 March 2023 |
The support neutral States are providing Russia and Ukraine has ignited a debate over neutrality. It is one of existential magnitude for Ukraine. Indeed, the survival of Kyiv in early 2022 can be attributed in significant part to external support, particularly the delivery of Javelin anti-tank systems. Later, HIMARS rocket launchers helped Ukrainian forces retake territory occupied by Russia. Western intelligence also made possible the sinking of the Russian Black Sea flagship, Moskva, and strikes on command and control facilities. And the forthcoming transfer of tanks to Ukraine will enhance the effectiveness of the anticipated Ukrainian offensive eastward. But, at the same time, Iranian drones have enabled Russia's continuing attacks, including against civilian infrastructure, throughout Ukraine, and Russia has been mounting operations from (neutral) Belarus.
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March | Protecting PoWs In Contemporary Conflicts | Derek Jinks | [Articles of War] March 10, 2023 |
What protection must be accorded prisoners of war (POWs) in international humanitarian law (IHL)? How might this protection scheme shed light on the role of personal status categories in IHL? Many of the protections accorded POWs closely track the increasingly robust fundamental guarantees accorded all conflict-related detainees. Some POW protections, though, reflect a different protective logic. Indeed, POWs are overprotected with respect to the humanitarian baseline because of special considerations of fairness, honor, and respect tightly linked to the specific requirements for POW status. This line of analysis (1) makes clear the standard of treatment for POWs; and (2) helps clarify the role that status categories play in contemporary IHL.
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February | Decolonising Cyprus 60 Years after Independence: An Assessment of the Legality of the Sovereign Base Areas | Nasia Hadjigeorgiou | [European Journal of International Law] 12 November 2022 |
The Sovereign Base Areas (SBA) are two parts on the island of Cyprus, with a combined territory of 99 square miles, over which the UK exercises sovereignty. They were created by the Treaty of Establishment 1960, which is also the international agreement that granted the Republic of Cyprus its independence. The article maps out the implications of the Chagos Archipelago Advisory Opinion for the SBA. It argues that the process through which they were created disregarded the wishes of the Cypriot people and was, therefore, not in accordance with the right to self-determination.
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February | No, Russia Can (Still) Not be Removed From the UN Security Council: A Response to Thomas Grant and Others | Joris van de Riet | [Opinio Juris - Part 1] 11 February 2023 [Opinio Juris - Part 2] 11 February 2023 |
One argument occasionally made in favour of the possibility of Russia's expulsion from the UN in its entirety – and thus from the Security Council – is that the procedure for expulsion as set out in Article 6 of the UN Charter only requires a "recommendation" from the Security Council before the General Assembly can vote on it, and the General Assembly would therefore be free to disregard that recommendation in its entirety if it wants to.
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February | How America Took Out The Nord Stream Pipeline | Seymour Hersh | Seymour Hersh Blog, 8 February 2023 |
Last June, the Navy divers, operating under the cover of a widely publicized mid-summer NATO exercise known as BALTOPS 22, planted the remotely triggered explosives that, three months later, destroyed three of the four Nord Stream pipelines, according to a source with direct knowledge of the operational planning.
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February | Ukraine war: casualty counts from either side can be potent weapons and shouldn't always be believed | Lily Hamourtziadou | The Conversation 1 February 2023 |
The war in Ukraine is shaping up to be one of the bloodiest of the 21st century, with both sides reported to be losing hundreds of soldiers each day as the conflict moves towards its first anniversary. But quite how many people are dying in this bitter struggle depends on who is doing the reporting.
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January | The Law of Immunity and the Prosecution of the Head of State of the Russian Federation for International Crimes in the War against Ukraine | Miguel Lemos | EIL Talk 16 January 2023 |
The debate on how to prosecute the international crimes linked to the aggression of the Russian Federation against Ukraine is ongoing (for example, here, here and here). One of the most prominent aspects of the debate concerns the question of how to prosecute the persons who are allegedly most responsible for such crimes, particularly, the head of state of the Russian Federation and commander-in-chief of its armed forces, Vladimir Putin.
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January | Russia's Crime and Punishment - How to Prosecute the Illegal War in Ukraine | Oona Hathaway | Foreign Affairs 17 January 2023 |
As the conflict in Ukraine is about to enter its second year, Ukraine and the West are accelerating efforts to ensure that Russian President Vladimir Putin doesn't get away with his illegal war. That has meant the West supplying weapons that were previously off the table, but it has also meant renewed attention to accountability. In November, Ukrainian President Volodymyr Zelensky made clear that justice is a key condition for peace. "This," he explained, "is what stokes the greatest emotions." But while there are courts where Russians can be prosecuted for war crimes, crimes against humanity, and genocide, a major piece is missing: there is nowhere to try Putin and other top Russian leaders for launching the war in the first place. For this, a special tribunal for the crime of aggression is needed.
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January | A Ukraine Special Tribunal with Legitimacy Problems? | Kai Ambos | Verfassuns Blog 6 January 2023 |
The call for a Special Tribunal for the Russian war of aggression in Ukraine is necessary since the jurisdiction of the ICC in the case of a crime of aggression is limited to State Parties, so both the attacking State and the victim State must be parties to the Statute. It was of course already known before the Russian invasion of Ukraine that this jurisdictional regime is much too narrow – why should the victim State, which is also a territorial State, not have jurisdiction over a crime of aggression committed on its territory?
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January | What killer robots mean for the future of war | Jonathan Erskine and Miranda Mowbray | The Conversation, 10 January 2023 |
You might have heard of killer robots, slaughterbots or terminators – officially called lethal autonomous weapons (LAWs) – from films and books. And the idea of super-intelligent weapons running rampant is still science fiction. But as AI weapons become increasingly sophisticated, public concern is growing over fears about lack of accountability and the risk of technical failure.
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January | Year Ahead – The Hurdles To International Regulation Of AI Tools | Ashley Deeks | Articles of War January 5, 2023 |
In 2023, non-governmental organizations such as Human Rights Watch and Stop Killer Robots will continue their calls for a new international legal framework to regulate autonomous weapons systems. Some States and scholars are optimistic about the possibility. These optimists often analogize to nuclear weapons regulation to illustrate that States sometimes have been willing to limit their own flexibility in strategic and sensitive areas – such as the one posed by the AI "arms race."
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