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Last Year's List

Date Title Author Reference
***New***
December
How Migrants Got Weaponized - The EU Set the Stage for Belarus’s Cynical Ploy Mark Galeotti Foreign Affairs,
2 December 2021
As thousands of migrants gathered on Belarus’s border with Poland and tried to cross into the European Union, some European leaders accused Belarusian President Alexander Lukashenko of engaging in a "hybrid war." In an effort to put pressure on the EU, they asserted, Lukashenko intentionally sent the migrants to the border with Poland and left them exposed in a freezing forest. Ylva Johansson, the European commissioner for home affairs, called it a new way of "using human beings in an act of aggression." But if the strategy was extreme, the forces driving it have long been in play. What EU leaders failed to acknowledge was that Lukashenko was drawing on a dynamic of state-manipulated migration that has become common in many parts of the world—and which the EU itself has helped shape.
More and more, the EU also seems willing to use external countries to do its dirty work on migration and in the process risks undermining the values that Western societies are meant to espouse. Although the conduct of the Polish government may have hit the headlines, the outsourcing of migration policing in North Africa has often meant turning a blind eye to overcrowded detention centers, huge numbers of deaths at sea, authoritarian regimes, and endemic corruption.
The lesson of Minsk’s cynical ploy is that as conflict leaves the battlefield and moves into every other realm of life, migration has become another weapon in an arsenal that ranges from strategic disinformation and the deliberate use of investment for political pressure to controlling access to water or power. Lukashenko is in many ways a very old-fashioned dictator, but his migrant war is a sign of things to come.
Summary extracted by Aspals

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***New***
November
Stirring Trouble at the Border: Is Belarus in Violation of International Law? Aurel Sari and Ben Hudson Just Security,
November 16, 2021 (Part 1)
Just Security,
November 19, 2021, 2021 (Part 2)
The migrant crisis along the European Union’s (EU) border with Belarus is escalating. In recent weeks, large groups of migrants gathering in the territory of Belarus have attempted to enter Latvia, Lithuania, and Poland, at times resorting to violence to cross the border. Both the EU and NATO, as well as individual governments including the United States, have accused Belarus not only of orchestrating this crisis, but also of contravening international law in the process. In this two-part series, the authors explore these claims with the aim of identifying which, if any, of its international commitments Belarus is violating.
Summary extracted by Aspals

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***New***
November
Report Of The Henriques Review Into The Framework, Processes And Skills That The Service Justice System Requires For Overseas Operations Sir Richard Henriques Report,
29 July 2021
The author fully concurs with His Honour Shaun Lyons' conclusions that there remains a need for a separate system of military justice and that the Service Justice System is broadly fit for purpose. The overriding challenges in leading this review have therefore been to fashion a Defence Serious Crime Unit with the size and several capabilities necessary to investigate allegations emanating from overseas operations; to ensure that such a Unit was independent and accountable to a person or persons independent of any military command within the Services and independent of those it had a duty to investigate; to ensure that the Service Justice System remained capable of maintaining discipline, efficiency and morale in our Armed Forces during overseas operations whilst simultaneously providing a fair and considerate process for those serving their country often in dire circumstance; to learn from past failings and set the context for the future; and to provide a system engaging the highest professional standards of policing, prosecuting and adjudicating in order to discharge our duties under domestic and international law to investigate and prosecute crimes as quickly and efficiently as possible, without compromising thoroughness or integrity.
Summary extracted by Aspals

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***New***
October
Gaza Conflict 2021 Assessment: Observations and Lessons Gaza Conflict Task Force JINSA's Gemunder Center Gaza Assessment Policy Project,
October 2021
For two decades, the US military has fought enemies who often represent no state, wear no uniform, make no effort to distinguish themselves from civilians in densely populated areas, and respect neither the laws of war nor the truth. The United States might confront such adversaries again, even as it leaves behind its post-9/11 strategic focus on terrorist threats, and not just in the form of non-state actors. Near-peer competitors, too, are adopting strategies that include conflict below the threshold of war, irregular warfare, and information operations. That is why, as retired U.S. generals, admirals, and military legal experts, the Task Force undertook this study of the May 2021 armed conflict between Israel and Hamas and Palestinian Islamic Jihad (PIJ) in the Gaza Strip. Their analysis of this conflict—based on primary source research, a fact-finding trip to Israel, and discussions with senior Israeli and United Nations (UN) officials — yields legal, strategic, operational, and technological observations about the challenges confronting Israel today and that the United States could face in the future. Based on their analysis of Israeli military operations in this conflict, they also identify lessons that might assist American leaders in preparing for and conducting future conflicts effectively, efficiently, and in accordance with the Law of Armed Conflict (LOAC).
Summary extracted by Aspals

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***New***
October
Syria – A Hybrid War Case Study Meredith Jones and Sascha Dov Bachmann Journal of Military and Strategic Studies,
Volume 21, Issue 1
The continual destruction of Syria and the ongoing political stalemate has led to the complete devastation of a once beautiful country. The Syrian conflict is one that has become increasingly complex due to the large range of contending parties that include both State and non-State actors. Not only has the Syrian crisis become one the most well-documented conflicts in history, but it has also been considered the worst conflict to arise out of the so-called Arab Spring of 2011. Further, it has been recently labelled as one of the most sophisticated battlefields in the world, simply because Syria has been the testbed for previously untested battlefields, operational domains, and advanced weaponry. The significant media coverage of the crisis in Syria continues to illustrate the horrors that have become the everyday norm. With an estimated 470,000 people killed and 11 million displaced, the crisis has had a disastrous effect on the Syrian population of 20 million. Notably, however, the extent of this conflict has travelled far beyond the borders of Syria, with the millions of displaced persons being the most apparent consequence. Despite a new decade, a long-lasting resolution remains unlikely, leaving Syria's future in the hands of opposing powers and a divided international community.
The purpose of this paper is to apply the concept of hybrid warfare to the Syrian conflict. It is the position of this paper, that Syria is a hybrid war employing all strategies contained within the wider hybrid warfare classification, such as irregular warfare, asymmetric warfare, and compound warfare. The paper first reflects on the concept of hybrid warfare, before attempting to unpack the complexities of the Syrian conflict. The second part then engages in critical analysis of how each of the hybrid warfare strategies is illustrated within this all-encompassing war through the use of various strategies and battlespaces.
Summary extracted by Aspals

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September Sovereign Base Areas (SBA) Dr Nasia Hadjigeorgiou Max Planck Encyclopedia of Public International Law,
21 June 2021
The Sovereign Base Areas are a peculiar entity. They are two relatively large pieces of land on the island of Cyprus, over which the UK has retained sovereignty since granting the rest of the island its independence in 1960. The Sovereign Base Areas are UK military bases with their own independent administration and judiciary, that are however, inhabited by local Cypriot civilians. Their unique status raises questions about how they can best be classified under international law, while Brexit leaves unclear their relationship with the EU Member State that surrounds them.
IRI's Dr Hadjigeorgiou is an Assistant Professor in Transitional Justice and Human Rights at the Cyprus campus of the University of Central Lancashire.
Summary provided by the Author

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August Armenia-Azerbaijan Nagorno-Karabakh Conflict - report A report by Steven Kay QC, Dréa Becker & Joshua Kern Report,
20th July 2021
The dissolution of the USSR saw an increase in armed attacks against populated areas within Azerbaijan both by Armenia itself, and by Armenian forces in Nagorno-Karabakh. Hostilities soon escalated into a full-scale armed conflict between the nascent states. In the course of this conflict, Armenia occupied a significant portion of Azerbaijan's territory, including Nagorno-Karabakh, seven adjacent districts,4 and Azerbaijani exclaves surrounded by the territory of Armenia. The war resulted in the deaths and wounding of thousands, and the forced displacement of hundreds of thousands of Azerbaijanis. The exodus was the biggest instance of forced displacement in Europe since the end of the Second World War. Armenia's use of force against Azerbaijan and its occupation of Azerbaijani territories have been consistently condemned by the international community.
In October 2020, whilst the war was still raging, Steven Kay QC of 9 Bedford Row Chambers (9BR) and his team were instructed to report on and assess acts committed by Armenian forces. They visited locations in several districts where Azerbaijani civilians had been targeted, and also visited areas of the district (rayon) of Fizuli recently liberated from Armenian occupation. The world's leading experts in international criminal law were requested to see with their own eyes the crimes that have been committed against the Azerbaijani people, and to carry out an initial assessment of their illegality and criminality under international law. This Interim Report is the result of great efforts of Steven Kay QC, Dréa Becker and Joshua Kern, actively supported by the team from BM Morrison Partners, and the Azerbaijani Bar Association led by its Chairman Anar Baghirov.
Neither Azerbaijan nor Armenia is a States Party to the Rome Statute of the International Criminal Court. However, the Republic of Armenia signed the Rome Statute on 2 August 1999 and has not withdrawn its signature.
Summary extracted by Aspals

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August 2021 Story Telling And Strategy: How Narrative Is Central To Gray Zone Warfare Dr David Knoll Modern War Institute,
24 August 2021
The centrality of narrative in gray zone warfare points to how the US government can confront adversary efforts. At the national level, the United States should focus its efforts at undermining implausible deniability, illuminating the true nature of Goldilocks competition, and illustrating the potential strategic impact of cumulative adversary actions. If the United States can provide clear evidence before too many facts on the ground have accumulated, there might be an opportunity to coalesce the international community behind a response.
Moving down to the military level, there are a number of implications that DoD leaders should consider when planning military activities. First, the military can support the overall US government effort to undermine the implausible deniability of adversary gray zone activity. A picture (or video) is worth a thousand words and can help drive international opinion more effectively than press releases alone. The military is well-positioned to collect evidence of adversary actions—and it can share it with partner nations and news agencies.
Second, the US military spends a lot of time forward, engaging with partners and allies, and signaling adversaries. A key part of this effort is to work with partners that reinforce the positive US narrative centered on rule of law, so increased vigilance surrounding compliance with Leahy Law standards is needed.
Third, any action that undermines US narratives must be seen as a risk. When a proposed operation undermines a US narrative, such as upholding the rule of law, military leaders must see that action as a risk to a strategic-level goal. In some cases, such as the bin Laden raid, such risk is merited. In other cases, such as drone strikes against low-level fighters in places like Somalia, Yemen, and Afghanistan, it may not be.
Summary extracted by Aspals

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August 2021 The withdrawal of military forces from Afghanistan and its implications for peace Claire Mills House of Commons Library,
13 August 2021
US and coalition countries have almost completed the drawdown of their forces, but questions remain over Afghanistan's long-term future. At the time of writing, the speed at which Taliban forces have taken ground and captured key supply routes, border crossings and provincial capitals has increased fears that the Taliban will regain control of the country, or that there will be a return to civil war. This paper is an update to a briefing first published in May 2021.
In February 2019 then US President Donald Trump indicated that he would extricate the US from "endless wars", but the Administration's first attempt at a peace deal with the Taliban fell apart at the last moment in September 2019. Acknowledging that the terror threat is now present in many places globally and that it makes little sense to concentrate any response to just one country, President Biden expressed the view that it was "time for American troops to come home" and confirmed that the US would honour its commitments under the February 2020 deal. The US announcement of the withdrawal of its forces was, therefore, accompanied by a NATO commitment to withdraw its Resolute Support mission forces, and those of its partner nations, in parallel.
Summary extracted by Aspals

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July 2021 Protecting those who protect us: Women in the Armed Forces from Recruitment to Civilian Life House of Commons Defence Committee Second Report of Session 2021–22,
12 July 2021
Female veterans are living with the legacy of their Service. While most go on to lead satisfying lives and benefit from their Service, some have life-changing trauma in consequence. Many feel their Service is not recognised. Furthermore, ex-military women do not always access male-focused transition services and veterans' services. In the survey done, three-quarters of veteran respondents said the MOD was not helpful in their transition; over half said that their needs are not being met by current veteran services. Despite notable examples (such as the Salute Her service and the WRAC Association), there are very few specialised support services for female veterans in the UK.
Summary extracted by Aspals

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July Mass Migration as a Hybrid Threat? – A Legal Perspective Anthony Paphiti and Dr Sascha Bachmann Polish Political science Yearbook,
vol. 50(1), 2021,
pp. 119-145
Migration as a weapon sounds like a policy statement by resurgent nationalistic parties (and governments) in the West. However, politics and the human cost aside, what if an adversary (both state and non-state actor) does exploit the current global crisis of mass migration due to globalization, war, and political unrest? This article will look at the ongoing mass migration to the European Union within the wider security context of the so-called hybrid threats and/or 'grey zone' tactics. It looks at the various legal categories of migration and how the law can be weaponised as so-called 'lawfare' to undermine the existing legal frameworks distinguishing between legal and illegal migration. Some domestic cases are referred to which reflect the responses of some legal systems within Europe. The authors recognise the possibility that this article may be used as an argument by the political actors involved for their nationalistic and anti-migration politics and policies. Yet, the authors believe that the potential for abusing the current vacuum, for political gains along ideological lines, makes it necessary to provide a wider legal-security focused perspective on mass migration.
Summary extracted by Aspals

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June Assessing the risks of civilian harm from military cyber operations during armed conflicts Ellie Shami Humanitarian Law & Policy,
ICRC
22 June, 2021
How can countries at war assess the potential harm that cyber operations may cause to civilians? In this post, part of the ICRC Humanitarian Law & Policy series on avoiding civilian harm during military cyber operations, Ellie Shami argues that while it is clear States must implement measures to minimize the harm caused by any means and methods of warfare during armed conflicts, the unique characteristics of cyberspace as a warfare domain set new challenges in doing so.
Summary extracted by Aspals

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April Russia, The Wagner Group, And The Issue Of Attribution Jennifer Maddocks [Articles of War],
Apr 28, 2021
States' engagement in armed conflict via proxy is not a new phenomenon. Contemporary conflict, however, has seen a revival in States' use of private militia groups—or private military companies (PMCs)—to engage in combat on their behalf. Russia's employment of the Wagner Group to promote its interests in the conflicts in Syria, Ukraine, Libya, and across the globe exemplifies this trend. The Wagner Group effectively acts as an alternative fighting force at the Kremlin's disposal to project its power abroad. But what happens when members of the group act in a way that violates Russia's international legal obligations? When does international law hold States accountable for unlawful conduct perpetrated not by their own militaries, but by armed groups acting on their behalf?
The law of State responsibility determines when States are legally responsible for acts—or failures to act—that violate their international legal obligations. For over five decades, the UN International Law Commission worked to identify these unwritten customary rules of international law. The resulting 2001 Articles on State Responsibility (ASR) are a comprehensive and authoritative restatement of the law in this area. The most appropriate basis on which to attribute the proxies' conduct to the respective States is those States' delegation of public functions to a private entity. Therefore, the law of State responsibility should attribute the group's conduct to the State, irrespective of the State's exercise of control over its activities or the contents of the State's domestic law.
Summary extracted by Aspals

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May Genocide: bringing perpetrators to justice In Focus House of Lords Library House of Lords Library,
21 May 2021
The global community has made commitments to combat and prevent crimes of genocide for several years. This article looks at what genocide is, international agreements to prevent genocide that the UK is signed up to, and recent parliamentary discussion during the Trade Bill.
Summary extracted by Aspals

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May 2021 The Rabbit Hole, from Antwerp to Gaza Alonso Gurmendi Opinio Juris
19 May 2021
The author discusses the Israeli-Palestinian conflict and the legal arguments used by Israel in targeting residential and commercial buildings in Gaza on the basis that they are used by Hamas militants.
Since the Four Geneva Conventions of 1949, and especially after 9/11, there has been an increased interest in bringing about a paradigm shift in the way we read humanitarian rules.
The unapologetic protection of civilians, not the balance between necessity and humanity, should be the main focus of a modern re-reading of these rules. Readings that fall short of a humanitarian law of war should be questioned. Destroying an entire building without having to produce any evidence simply because one apartment was used by an armed group is awful. It is also unambiguously unlawful. If there are readings of the existing rules that don't reflect this, they should be called out as deficient for the protection of civilians. Eventually, the author hopes, we may be able to do for Gaza what we could not do for Antwerp a century and a half ago.
Summary extracted by Aspals

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May 2021 Hardin's 'tragedy Ofthe Commons': Indigenous Peoples' Rights And Environmental Protection: Moving Towards An Emerging Normof Indigenous Rights Protection? Sascha Dov Bachmann & Ikechukwu P.Ugwu [Oil and Gas, Natural Resources, and Energy Journal]
Vol 6, No 4, at p.547
Most of the world's natural resources can be found on the territories of indigenous peoples. This puts indigenous peoples in a position where they are not only subjected to environmental hazards, as a result of the mining and exploitation of these resources, but are also denied the use and control of these resources. In addition, the proximity to such commodities makes indigenous peoples the subject of widespread human rights violations. This article discusses the indigenous peoples' situation in light of Garret Hardin's theoretical "Tragedy of the Commons" concept of the correlation between shared resources and their depletion before the reality of the major role Multinational Corporations (MNCs) play in the abuse of indigenous peoples' rights.
At the international level, we find a progressive consensus in recognizing the rights of indigenous peopleswith regard to the management of their lands and natural resources. We argue that the absence of an international and permanent mechanism for holding MNCs accountable for environmental pollution and human rights abuses remains one of the biggest threats to indigenous peoples' rights. Resorting to transnational and international litigation to close this accountability gap seems to be the last resort for indigenous peoples. This article explores examples in national jurisdictions which establish enforceable environmental rights such as environmental personhood, the recognition of the fundamental rights of Mother Earth, the harmonious construction of the right to clean environment and right to life, and the right to be consulted and accommodated, all of which are relevant to indigenous peoples.
This article links the relationship between human rights and environmental protection and, to establishes that resource ownership and communal management of shared resources, rather than state's control, are necessary for both the protection of the environment and, by extension, of indigenous peoples as socially and culturally distinct groups.
Summary extracted by Aspals

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May 2021 'Almost divine power': the lawyers who sign off who lives and who dies in modern war zones Craig Jones The Conversation,
12 May 2021
When we think of war, we might think of soldiers on the front line – or those pulling the trigger – as the ones responsible for the death or injuries of those they are targeting. But my research suggests that over the past few decades an unlikely profession has become deeply involved in the conduct of war: lawyers.
Legal advisers told the author how they often find themselves in situations where they are called into operations rooms in the middle of the night, asked to rapidly review the situation and give their bottom line.
One described being "the sole remaining impediment to a sentence of death". And although military lawyers receive specific training before being assigned to roles, the author's research suggests it's not always sufficient to prepare them for the highly stressful work of effectively advising on who should live and who should die in war zones.
Given the implications of their work, accounts are beginning to emerge – perhaps unsurprisingly – that some military lawyers are haunted by moral injury and post-traumatic stress disorder (PTSD).
Summary extracted by Aspals

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May 2021 We're Only Deceiving Ourselves Major Dom Wiejak The Wavell Room,
12 May 2021
Deception is foremost an activity that affects an adversary's perception of reality, causing them to act in a specific way. Colonel Dudley Clarke, the lead British deception planner in North Africa during World War Two, explained deception to General Montgomery by asking him to imagine he had a direct telephone line to Hitler. However, placing faith in mind games over artillery shells brings great risk along with potential rewards. Letting these risks trump opportunities has led to deception waning as an offensive capability, the requirement to understand a target's biases and preconceptions has been forgotten. Instead, deception has become synonymous with a materiel solution for protecting assets by distraction.
In his seminal work, Edgar Schein argues that an organisation's culture can be analysed through three levels: artifacts, beliefs and values, and basic assumptions.4 This essay analyses the lack of deception across these cultural levels and suggests actions that could rekindle the British Army's deceptive capability.
Summary extracted by Aspals

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April No Legal Objection, Per Se E.M. Liddick War on The Rocks,
21 April 2021
A first person account by the author of the pressures placed upon the shoulders of military legal advisers in the fast paced dynamic of the operational environment. It highlights why lawyers advising the operational command need to be "inside the system" rather than being brought in ad hoc. Understanding the operational plan, the commander's intent, the legal constraints and professional and ethical responsibilities is very much the realm of the the Service lawyer.
While it is written from a US perspective, the article carries a message that will be understood by all those who have provided legal advice on ops, where assessments of whether the level of 'collateral damage' falls within legal (and moral) parameters have to be made rapidly. These concepts are easy to understand and articulate when written in a textbook. But the reality of implementing them when quick decisions are required is quite different. As he says, it's these unrelenting pressures — accomplishing the mission; protecting our teammates; advancing the nation's interests; providing quick and accurate legal advice; ensuring compliance with the law and respect for the rule of law; finding a legal, ethical, and moral way to utter "yes"; being seen as a team player; and exercising moral courage — influenced by innumerable variables — atmospherics, optics, personalities, and differences in rank between him and those he advised — that generated the weight seated squarely upon his, and so many other legal advisors', shoulders.
Summary by Aspals

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April Clarifying the role of ICC complementarity in the context of the UK Overseas Operations Bill Brian L. Cox Global Military Justice Reform
April 13, 2021
One particular issue that has plagued the Bill and sown confusion in the debate from the very beginning is what effect the so-called prosecution 'triple lock' might have in terms of UK international law obligations pursuant to the Rome Statute. At the heart of the matter is the provision that would implement a 'presumption against prosecution' following the 'period of 5 years beginning with the day on which the alleged conduct took place has expired.'
For proponents, this is a necessary step that would protect service personnel from being subjected "to what can often seem an unending cycle of investigation and re-investigation" that "risks undermining morale within the Armed Forces and trust in the rule of law." For critics of the Bill, the presumption against prosecution "undermines the absolute and non-derogable nature of the prohibition of torture and violates human rights law, as well as international criminal and humanitarian law."
Summary extracted by Aspals

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April IHL Bibliography Special Issue 2021 - 10 years of scholarship on the Syrian conflict International Committee of the Red Cross Special Issue 2021,
March 2021
To mark the tenth anniversary of the beginning of the Syrian conflict, the ICRC Library is publishing a special issue of the IHL bibliography covering 10 years of international humanitarian law scholarship on the conflict. Unsurprisingly, the issue of accountability for violations of IHL features heavily in these publications. The diversity of issues covered, from foreign fighters to chemical weapons and cultural heritage, gives us a somewhat clinical picture of the Syrian tragedy. For an overview of the effects of the conflict on the Syrian people, the ICRC invite you to read their recently released report, A Decade of Loss: Syria's Youth after 10 years of crisis, as well as an earlier report entitled "I saw my city die" : voices from the front lines of urban conflict in Iraq, Syria and Yemen. The audiovisual archives portal also documents the ICRC's work in Syria and the devastation brought by 10 years of conflict.
Summary extracted by Aspals

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18 March The Next Steps for EU Counterterrorism Policy - Evolving Threats of Jihadism, Right-wing Extremism, and Transatlantic Cooperation Raphael Bossong Stiftung Wissenschaft und Politik
German Institute for International and Security Affairs

March 2021
In the wake of the Corona pandemic and the storming of the Capitol, threat perceptions with regard to right-wing extremists and conspiracy theories have increased markedly. The attacks in France and Austria last November showed that the threat from jihadist terrorism also remains acute. Against this background, the counter­terrorism agenda of the European Union (EU) was updated at the end of 2020 and covers a broad range of topics. However, it also testifies to the heterogeneity of the Union's competences and the different interests of EU member states. On the one hand, the EU's role remains limited when it comes to the rehabilitation of imprisoned terrorists and to the broad societal prevention of extremism. On the other hand, the EU is pushing forward with a set of regulations to remove illegal online content. This common legislative agenda is also part of a renewed transatlantic partnership. How­ever, pro­active measures against right-wing terrorism will, for the time being, be advanced in flexible coalitions.
The dismantling of the territory of the "Islamic State" (IS) in 2019 and intensive efforts by intelligence and law enforcement agencies to pursue terrorists mean that serious attacks, which occurred repeatedly in Europe between 2014 and 2017, have become less likely. Neither the so-called migration crisis of 2015 nor the return of foreign fighters from IS has resulted in an uncontrollable threat to Europe so far, although irregular immigrants and rejected asylum seekers have repeatedly carried out or attempted attacks. These acts have also shown that access to weapons and high-value targets has become more difficult.
Summary extracted by Aspals

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March 2021 What justice can international law bring to Syrians? Asser Khattab and Vito Todeschini Just Security,
15 March 2021
This month marks ten years since the Syrian uprising. Syrians look back at this past decade in despair, contemplating the loss of hundreds of thousands of lives and the massive, forced displacement within and outside the country, as millions lost their loved ones as well as their homes, when their towns and villages were bombed into smithereens. At the same time, on this anniversary Syrian journalists, activists, human rights lawyers and other citizens are hailing the importance of the several, albeit small steps currently underway to counter impunity for gross human rights violations and crimes under international law committed by the Al-Assad regime and various other actors in the country.
This is also an occasion to retrace briefly the measures taken by the international community in the quest for accountability in Syria, reflecting on their significance in bringing justice to Syrians.
Summary extracted by Aspals

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March Truth, Justice, and the Narrative in International Criminal Law Steven Kay QC Just Security,
2 March 2021
You would be forgiven if you thought that the International Criminal Court's Twitter feed had been taken over by a Hollywood production company, promoting its latest movie, in the run-up to the ruling on Feb. 4, 2021 in the Dominic Ongwen trial, the Ugandan former child soldier and Lord's Resistance Army (LRA) commander accused of 70 counts of crimes against humanity and war crimes. The ICC enticed its followers to tune in live: 234 days of trial, 130 witnesses testified, 1760 filings, 4095 victims represented, 1 verdict.
The dramatization of the international justice system will not come as a surprise to practitioners and experts in the field. Hannah Arendt's withering critique in the New Yorker of the 1961 Adolph Eichmann trial in Jerusalem accused the prosecutors of a theatrical presentation and putting history, not the defendant, on trial. She later said that the purpose of the trial should be "to render justice, and nothing else." That isn't to say that a dominant narrative will always prejudice the courts. Fair trials can be held despite clamoring voices for one version of the truth, but courts need to be vigilant in ensuring that a dominant narrative does not permeate the courts nor influence the evidence.
Summary extracted by Aspals

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March Beyond Criminalisation: Torture as a Political Category by Mattia Pinto Critical Legal Thinking,
1 March 2021
The Overseas Operations (Service Personnel and Veterans) Bill is currently at Committee stage before the House of Lords and, if proposed amendments do not succeed, it will become legislation in the next few months. Among its current provisions, it includes a presumption against prosecution of armed forces personnel after five years from the occurrence of certain offences, including torture, allegedly committed during overseas operations. This provision has been correctly described as a de facto 'decriminalisation of torture'. Human rights groups, legal scholars, lawyers but also former generals have laudably opposed the Bill. By reducing the risk of such prosecutions ever getting off the ground, the British government appears to accept that violent and dehumanising activity, like torture, may be understandable or excusable in the context of overseas operations. The failure to exclude torture from the presumption against prosecution reads as undermining the absolute prohibition on torture under international law.
Summary extracted by Aspals

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February The Armed Forces Bill 2021: what does it hold for the Service Justice System? Matthew Bolt Global Military Justice Reform,
16 February 2021
Barrister Matthew Bolt writes that, on 8th February 2021 the Armed Forces Bill 2021 had its second reading in the House of Commons. The Bill has been eagerly awaited by practitioners and observers following publication of the Service Justice Review, otherwise known as the Lyons Report. He makes a number of points, some of which are extracted here.
The Lyons Report made a number of recommendations, some of which would begin to correct historic deficiencies in the Service Justice System and others which were ill-advised to say the least. The most obvious changes will be to the constitution of the Court Martial. Boards will now consist of either three or six members, although a six person board may continue with five members by judicial direction, and those of substantive OR-7 rank will now be permitted to sit on boards. Whilst a three person board to deal with offences carrying a maximum sentence of less than 7 years remains as problematic as ever, these changes represent a step towards the 12 person, all ranks, miliary juries that are a feature of the United States' system. [Ed: the US army has more than 480,000 active duty personnel; being 6 times the size of the British army (80,040)].
Simple majority verdicts for all offences will be amended so that for the most serious offences a qualified majority of 5:1 or 4:1 will be required, bringing the Service Justice System more in line with the Crown Court.
The author considers there is much to welcome in the Bill, particularly around the constitution of the board which give service personnel some of the protections they would enjoy in civilian life. However, there remains much to be done. Several of the more ill-advised recommendations of the Lyons Report, such as the abolition of appeals in preliminary proceedings and the restrictions on which offences can be tried in the Service Justice System remain and can be brought in by secondary legislation or administratively. It is important that the case for a robust, expert, fair and independent Service Justice System continues to be made in both Houses of Parliament and in the courts.
Summary extracted by Aspals

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February Legalising Torture Michelle Farrell Tribune,
8 February 2021
The Overseas Operations Bill effectively decriminalises torture abroad. It's been labelled a political reaction to a series of legal claims - but its real motivation is thoroughly ideological. The Bill seeks to establish a presumption against the prosecution of members of the armed forces in future overseas operations for certain offences (following a five-year time lapse), a six-year time bar for civil proceedings by service personnel against the Ministry of Defence, and a duty to consider derogation under Article 15 of the European Convention on Human Rights in future overseas operations. In her report, the ICC Prosecutor determined that there is 'a reasonable basis to believe that various forms of abuse were committed by members of British forces against Iraqi civilians in detention. This includes the war crimes of murder, torture, rape and/or other forms of sexual violence, and forms of mistreatment amounting to inhumane and cruel treatment or outrages against personal dignity.' In spite of this heady finding, the ICC closed its preliminary examination on the basis that, under Article 17 of the Rome Statute, the Office could not conclude that that 'the UK authorities have been unwilling genuinely to carry out relevant investigative inquiries and/or prosecutions.' Yet the report is littered with concerns as to the 'deficiencies of the domestic process'. The Prosecutor's decision is ambiguous. In a watery warning to the UK government, the Office also raised concerns about the Overseas Operations Bill
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January Encirclement, Deprivation, and Humanity: Revising the San Remo Manual Provisions on Blockade Tom Dannenbaum International Law Studies,
Volume 97
2021
Among the most pernicious trends in contemporary armed conflict is the return of mass starvation in war, in some cases as its primary source of human suffering. This has prompted a renewed focus on the relevant rules of international humanitarian law (IHL). On some issues, there is relative consensus. On the issue of deprivation by encirclement, however, there is confusion.
Some have questioned whether the prohibition on the starvation of civilians as a method of warfare applies to encirclements at all, particularly in the naval context. Others have interpreted the prohibition vanishingly narrowly. In contrast to the more extreme of these positions, the San Remo Manual applies the starvation ban to naval blockades. However, its reframing of the ban introduces gaps and ambiguities that deviate from existing IHL. With the Manual's revision process underway, there is an opportunity to remedy these infirmities.
This article charts the historical trajectory of starvation in IHL, exposes the vulnerabilities in the Manual's articulation of the law of blockade, debunks arguments for the permissibility of encirclement starvation, and makes the case for recognizing a categorical prohibition on the starvation of civilians in armed conflict. It maps the path forward for the Manual's revision, proposing changes to the blockade provisions and emphasizing the importance of extending the Manual's starvation rules to other modes of naval warfare. It also spotlights the need for the revision to cover the law of non-international armed conflict at sea and the role of international human rights law in naval warfare.
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January Command responsibility for Australian war crimes in Afghanistan Douglas Guilfoyle EJIL Talk,
January 19, 2021
On 4 January 2021 the Australian Office of the Special Investigator officially commenced work ("OSI"). Its task is to conduct criminal investigations into Australian war crimes in Afghanistan, as revealed in the Brereton Report. The terms of reference for the OSI are not yet known, but hopefully they will allow the Special Investigator to follow the evidence where it leads. This is of particular concern regarding commanding officers. There are also issues of Complementarity. Could superior officers who are not prosecuted by Australian courts, in theory, be prosecuted by the ICC? The answer is not obvious. This might seem obtuse: if Australia has brought the "wrong" standard into its domestic law, making it impossible to prosecute a crime – doesn't that render Australia "unable" to prosecute? The first test of admissibility before the ICC is, however, not the "unable or unwilling" test. Rather the starting point is whether the case is being prosecuted by national authorities, or whether national authorities have investigated and bona fide decided not to prosecute (Article 17(1)-(2)). It is significant here that superior responsibility is not a freestanding crime but a mode of participation in crimes perpetrated by others.
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January Hybrid warfare & theory Hakan Ulf Gunneriusson ICONO14 Journal Scientific Journal of Communication and Emerging Technologies ,
Vol. 19 No. 1 (2021)
Hybrid threats use conventional and unconventional means to achieve their goals. This document explores the cyber threat as a possible aspect of hybrid threats. The background to the term hybrid warfare, how it arose and traveled as empirical situations evolved and necessitated new definitions, are also discussed. Russia aims to achieve this by applying a holistic combination of military, political and economic means to weaken the West and strengthen its own role as a global player (with "West" for simplicity I mean the states that make up the EU and NATO, but it is more of a cultural approach than an organizational one). The Russian approach is based on a thoughtful control strategy which as such is an old method, but the result of the application of this approach results in a hybrid war that, as such, is a new emerging concept of warfare. This short article looks at a particular aspect of this Russian strategy, namely the use of Hybrid, or non-linear, Warfare against its direct Western neighbors in particular and the West in general. The cyber arena is very important in this practice. The attack of this armed situation is that confidence in the West. Mainly the EU (European Union) and NATO (North Atlantic Treaty Organization), erodes every day that these countries challenge the international system that Western democracies say they present and defend. This is part of what can be described as an example of thoughtful control, exercised by Russia. it is a new emerging concept of warfare. This short article looks at a particular aspect of this Russian strategy, namely the use of Hybrid, or non-linear, Warfare against its direct Western neighbors in particular and the West in general.
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