In 2019 President Trump pardoned four members of the US military (Major Godlsteyn, Chief Gallagher, and Lieutenants Behenna and Lorance) who had either been accused of or convicted of serious violations of international criminal law These pardons were widely criticised on various grounds. This article approaches the pardons from an international perspective and asks whether the President's actions violate international law. At the end of the day, it concludes that a prosecution is highly unlikely as "there is no international court that would currently have jurisdiction over his acts and it is hard to imagine that another state might try to use universal jurisdiction to prosecute the President". [Ed: In other words, international law and high minded, laudable treaties, are toothless tigers against powerful leaders and nations - there is no accountability?]

The Office of the Prosecutor (OTP) at the ICC has decided for a second time not to investigate war crimes committed in Iraq by British soldiers. There are many posts to write about the OTP's decision, but in this one the author focuses on nine words in the Final Report that explain why it is closing the Iraq preliminary examination. As goes on to show, those nine words fundamentally misstate the procedural and substantive requirements for the OTP to ask the Pre-Trial Chamber to authorize an investigation. The new declination specifically acknowledges that the crimes are grave enough to justify a formal investigation, but the UK's failure to submit even "one single case… for prosecution to date" (to quote the OTP's Press Release) does not indicate it is unwilling to genuinely investigate British war crimes in Iraq.

The Prosecutor announced the conclusion of the preliminary examination into the situation in Iraq/United Kingdom (UK) following a thorough process. She decided, as set out in the detailed report to close the preliminary examination and not to open an investigation.
In 2014, her Office re-opened the preliminary examination into the situation in Iraq/UK on the basis of new information received. Since then,they have been rigorously examining allegations of crimes committed by UK nationals in Iraq during the course of the UK's military involvement in Iraq. In particular, the Office has focussed on a sub-set of allegations related to the mistreatment of Iraqi detainees in UK custody.
The Office has previously found, and today confirmed, that there is a reasonable basis to believe that members of the British armed forces committed the war crimes of wilful killing, torture, inhuman/cruel treatment, outrages upon personal dignity, and rape and/or other forms of sexual violence. The Office has identified a confined number of incidents to reach this determination which, while not exhaustive, appear to correspond to the most serious allegations of violence against persons in UK custody.

A Practical Guide on the Effective Use of Digital Open Source Information in Investigating Violations of International Criminal, Human Rights and Humanitarian Law. The Protocol starts with professional, methodological and ethical principles,and progresses thought the legal framework (determining which laws apply, the type of investigation) and the investigation process, to the production of a report, where investigators should consider which formats are most appropriate to their mandates and intended audiences – taking into account factors such as the technological literacy of the audiences and accessibility, objectivity, transparency and security – when deciding on (a) the formats to use and (b) the data to include.

Since the adoption of the Charter of the United Nations, the current international legal framework has drastically changed. In its traditional understanding, aggression is "the supreme international crime" aimed at protecting sovereignty and the territorial integrity of states. On the other hand, the U.N. Charter endorses an understanding of peace in the negative sense, that is, as mere absence of war. As human rights have gained momentum, they have helped reshape the legal landscape, a phenomenon referred to as the humanization of international law. How do peace and aggression fit within the humanized legal framework? This article will investigate the effects of the humanization of international law on peace and aggression. Specifically, it argues that a new trend is emerging, whereby human rights, more than the maintenance of peace per se, are increasingly seen as the pivotal aim of the current international legal framework. Ultimately, this analysis will question whether this is a welcomed development and will highlight its risks.

In response to a prosecution appeal in the case of The Prosecutor v. Bosco Ntaganda, the International Criminal Court (ICC) is currently considering the meaning of attack under the Rome Statute. The Court's decision, however, could have consequences that reach beyond Ntaganda and could influence how the term is understood in the law of armed conflict (LOAC).  The consequences of re-interpretating LOAC notions, such as attack, could be far-reaching from a legal and practical point of view. Developments like those discussed above risk further fragmentation in the material sense of LOAC and international criminal law. Such developments are also likely to disrupt the fragile balance between military needs and humanitarian considerations in armed conflict. If tribunals criminalize conduct not regulated by the same terms under LOAC, then confusion can ensue as to the practical application of LOAC by military operators.

Responding to an article by Tom Ruys and Felipe Rodríguez, which argued that a state whose territory is unlawfully occupied by another state does not have the right to use of force in self-defence to recover the occupied territory, the authors consdier that the relevant question to pose is: whether any occupation that is the direct consequence of an armed attack constitutes a continuing armed attack. They argue that such an occupation resulting from an armed attack on another state is indeed a continuing armed attack and that the attacked state does not lose its right to self-defence simply because of passage of time.

United Nations special rapporteur presented her Annual Report to the UN General Assembly recently. The report addresses the interface between human rights, international humanitarian law (IHL), and counterterrorism. It states the obvious: This is a challenging time for the protection of human rights. Even before the pandemic, human rights protection was particularly fraught in complex humanitarian settings and situations of armed conflict. The report is particularly relevant to both contexts and was prompted by concern about the apparent displacement of human rights and humanitarian law norms as a result of the wholesale application of counterterrorism law and practice. More broadly, the Rapporteur is troubled that well-established international legal norms, specifically those contained in the four Geneva Conventions and Additional Protocols, as well as other related norms, such as the right to self-determination, risk marginalization in the rush to embrace ill-defined counterterrorism standards in multiple settings.

This post examines the competing arguments, before turning to the duty the bill imposes on the secretary of state to consider derogating from the UK's human rights obligations during certain overseas deployments. It suggests that the prevailing view, which treats this duty as a minor issue of limited importance, overlooks both its legal significance and the extent to which it represents an own goal by the bill's drafters. The Overseas Operations Bill has sparked a passionate debate in Parliament and beyond. This reflects the importance of the issues at stake: fairness towards those who are tasked to defend the realm, justice for the victims of wrongdoing, and upholding the commitment to the rule of law. Sadly, but perhaps not surprisingly, this debate has seen a fair share of vilification and populism too. Many of those objecting to the bill in a constructive spirit acknowledge the problem the government is seeking to address, but chide it for going about it the wrong way. The government and its ministers would do well to listen to these voices more carefully.

The aim of the Overseas Operations (Service Personnel and Veterans) Bill to end 'the cycle of reinvestigation of historic events' is understandable. This is a problem which needs addressing. But the Bill's proposed solution of introducing a 'presumption against prosecution' of crimes by British service men and women after five years - unless a case is deemed ‘exceptional' – is not the way to fix it. The effect of this presumption could put the UK in breach of its existing obligations to bring to justice any persons alleged to have committed serious international crimes.

The UK government's attempt to shield its troops from vexatious litigation is laudable. The methods proposed are less so. The problem the government is trying to address in the Overseas Operations Bill is genuine and has undoubtedly affected morale in the armed forces as some individuals have had their lives turned upside down by open-ended investigations that dogged them, even years after their service. But many critics have pointed out that the balance of both parts of the Bill may well leave the individual service personnel in a worse situation. The problems need to be addressed from the other end of the process – on the battlefield rather than in the courts. The Bill distracts attention from the reality that the military got itself into so many legal scrapes in Iraq and Afghanistan because its own battlefield investigation procedures were sub-standard. This author is well aware of personal testimony from some of those responsible for investigating cases regarding the systemic obstruction they habitually encountered. A number of senior retired military chiefs, legal officials and ex-ministers have expressed deep disquiet at all the unintended consequences this Bill might have if it becomes law. Operating the established processes better should be a higher priority than changing the law, particularly one with so many international implications.

The article is structured in two main parts. First, it sets out the facts surrounding the death of Soleimani as they have been widely reported by media outlets and relied upon by international legal experts. It then delves into the analysis by no less than fifteen of them who (co-)authored eleven legal briefs of varying depth. All such briefs tackle, to a more or lesser extent, the same overarching question: Was the killing of Soleimani by U.S. drone strikes in conformity with the relevant requirements of international law, consisting of the jus ad bellum (JAB), jus in bello (JIB) and international human rights law (IHRL)?
However, as noted above, there was little consensus among the experts – if any. The article hopes to better understand why international lawyers disagree so spectacularly by comparing and contrasting the variety of views in the Soleimani-case, and stripping down the supporting argumentation to uncover the underlying (theoretical and methodological) approach. That preliminary examination will be tackled in the article's second part. The root of the problem indeed appears to lie in a different methodological approach to the same issue, which includes relying on different sources and/or interpreting the same sources differently. Add to that the law's supposed indeterminacy, the absence of an authoritative arbiter, and contemporary academic idiosyncrasies, and it becomes clear(er) why each interpretation of international law is seemingly allowed to stand.
The article ends with some final reflections.

This post examines whether Article 5 of the North Atlantic Treaty is applicable to armed attacks in outer space. NATO nations have recently recognized outer space as a new operational domain for the Alliance. Although the drafters of the North Atlantic Treaty did not envisage that the agreement would apply in space, the Treaty's actual text does not preclude this.
The militarization of space is advancing at a rapid pace. NATO has taken a renewed interest in space, but none of the NATO-issued press releases and statements clarify whether Article 5 of the North Atlantic Treaty — the mutual assistance clause at the heart of the Alliance — may apply in outer space.
Whether or not Article 5 of the North Atlantic Treaty may extend to outer space depends first and foremost on the terms of the treaty itself. Article 5 is concerned with the exercise of the right of individual or collective self-defense in response to an armed attack. There can be little doubt that incidents amounting to an "armed attack" may occur in, from, or through outer space. Leaving aside the debate as to where exactly this gravity threshold lies, it is not difficult to envisage scenarios where even a high threshold could be met. But there are also questions over the applicability of anticipatory self defence and what standard of imminence applies in space? Could non-kinetic interference, such as signal jamming, rise to the level of an armed attack? If so, should we apply a loss of functionality test?
A formal treaty modification to extend Article 5 to all space attacks would amount to a significant expansion of NATO's collective defense responsibilities. This leads us back to the question of credibility: an intent to defend allied space objects from attack is credible only if matched by appropriate capabilities. Delivering such capabilities would seem more demanding than revising the North Atlantic Treaty.

With an ever-increasing number of non-State armed groups and a growing tendency for non-international armed conflicts (NIAC) to be fought by coalitions, it is crucial that our interpretation of international humanitarian law (IHL) continues to reflect realities on the ground.
In this post, ICRC legal advisors Jelena Nikolic, Thomas de Saint Maurice, and Tristan Ferraro suggest that in situations where there is evidence that non-State armed groups (NSAGs) have objectively and effectively adopted a collective approach to fighting against a common enemy, the intensity criterion required by IHL for determining the existence of a NIAC should be assessed on the basis of the aggregation of the military actions carried out between all the NSAGs fighting together and their common enemy, rather than requiring that each bilateral relationship of violence meets the criterion on its own.

The Westminster parliament is currently considering one of the most ill-conceived and misleadingly presented pieces of legislation ever introduced. It purports to do something that it cannot while doing several things it should not. It severely limits the ability of members of the armed forces to hold the government to account when it fails to provide adequate equipment or fails to protect them while they are serving. It introduces time limits. Most importantly the bill makes no exception for claims by members of the armed forces themselves. This would drastically limit the options for bereaved families such as those who complained about the fatally inappropriate deployment of lightly armoured Snatch Land Rovers in very hostile settings.
The bill states that the prosecution of historical offences should be exceptional and gives judges a list of factors that they must consider. The bill cannot provide an absolute time limit for prosecutions or it would breach our international legal obligations to prosecute genocide, torture, and war crimes. In fact, even the bill as it currently stands is legally debatable in international law and has been accused of harming our international standing.

The Overseas Operations (Service Personnel and Veterans) Bill 2019-2021, if passed, would provide a 'triple lock' to render ‘exceptional' prosecutions for criminal offences allegedly committed by the armed forces overseas (outside the UK) more than five years ago; shorten the limitation periods for actions in tort and under the Human Rights Act; and impose a duty on future Secretaries of State for Defence to consider derogating from the European Convention on Human Rights (ECHR) before future overseas deployments. The Bill intends to reduce the extraterritorial ‘expansion' of the ECHR, while reasserting international humanitarian law's 'primacy', yet these soundbites are not made out. The Overseas Operations Bill does nothing to reduce the extraterritorial scope of the ECHR, and it undermines the enforcement of international humanitarian law.

AI holds the potential to replace humans for tactical tasks in military operations beyond current applications such as navigation assistance. For example, in the US, the Defense Advanced Research Projects Agency (DARPA) recently held the final round of its AlphaDogfight Trials where an algorithm controlling a simulated F-16 fighter was pitted against an Air Force pilot in virtual aerial combat. The algorithm won by 5-0. So what does this mean for the future of military operations?
Increasing dependency on artificial intelligence (AI) for military technologies is inevitable and efforts to develop these technologies to use in the battlefield is proceeding apace, however, developers and end-users must ensure the reliability of these technologies.

Throughout world history, as long as there has been conflict among people, there have been people willing to pay others to carry out violence. From assassins and mercenaries to bounty markers and paramilitary organizations, humans have found limitless ways to pay for their dirty work to be carried out by others. This process is one of the most common threads in human history and has been used by people in every position, of every origin, and in every location on the planet for thousands of years. The issue of pay for violence has entered the spotlight again in the modern age, as humanity moves closer together through information and technology proliferation. The world is growing smaller, and conduct unbecoming of a civilized society is finding fewer and fewer places to hide. This article examines, in part, the historical evolution of the roles of paid actors in the business of war and violence. A complete examination is not presented, as it would require detailing a complete history of humankind. The author instead focuses on the primary themes and points throughout history that explain the origin, necessity, and permanence of paid-for violence, framed by supporting historical and modern-day references to illustrate the concept of combatants for hire and their impact on human society.

One of the issues on the KSC's horizon will be whether it adopts, as a basis for individual criminal responsibility, the extended form of joint criminal enterprise known as 'JCE III'. The ICTY Appeal Chamber declined to depart from the Tadic test in the Radovan Karadzic Appeal. Will the KSC follow the ICTY in interpreting article 16.1 of its statute to embrace the same wide constructed liability? The authors suggest there are good reasons why it should not.

In November 2019, the Paris Court of Appeals dropped the most incriminating of the four charges leveled in indictments by investigative judges against the multinational corporation Lafarge, namely the charge of complicity in crimes against humanity committed in Syria between 2012 and 2014. While this decision is currently the subject of an appeal before France's Supreme Court, the Appeals Court upheld the three other charges against the corporation for deliberately endangering the lives of its Syrian workers, financing a terrorist enterprise, and violating an embargo.

Whether one thinks of Syria, Libya, Yemen, or Ukraine, third-State involvement is undeniably a common feature of many – if not most – ongoing non-international armed conflicts. While the direct provision of arms to non-State armed groups is widely deemed contrary to international law, recent years suggest that States feel less reticence to provide so-called non-lethal assistance (NLA), understood as material aid not designed to inflict serious bodily harm or death. In particular, in the context of the Syrian civil war, such aid has been provided to various rebel groups, including by the United States as well as by several European countries.
The authors analyse the joint report of the Advisory Committee on Public International Law (CAVV) and the Advisory Council on International Affairs (AIV) on the support of foreign non-State armed groups through non-lethal assistance. The report was commissioned by the Dutch Parliament.

This is a response to the article written by Michael Schmitt and Durward Johnson. While agreeing with its conclusions – namely, that the harassing actions by Iranian gunboats in question did not rise to the level of an imminent or actual armed attack on US vessels, and thus could not justify a use of force in response, and that the president's statements could in turn constitute an unlawful threat to use force in violation of Article 2(4) of the U.N. Charter, the author considers that the essay also raises some interesting and debatable questions that invite further discussion, and it makes assertions about the state of particular principles of international law that require some push-back.

On April 15, eleven Iranian Islamic Revolutionary Guard Corps (IRGC) Navy gunboats repeatedly traversed the bows and sterns of six U.S. Navy vessels that were conducting joint integration operations with U.S. Army Apache attack helicopters in international waters of the Persian Gulf. The U.S. Navy claimed the gunboats' repeated crossings at extremely close range, one as close as 10 yards, were dangerous and harassing approaches. In response, President Trump instructed the Navy to "shoot down and destroy" IRGC Navy gunboats that "harass" U.S. ships. This was his most direct threat of military action against Iran since authorizing the targeted killing of Major General Qassem Soleimani, the former military commander of the IRGC's Quds Force. In a briefing at the White House, the president claimed, we're covered 100 percent with respect to the U.S. military's current rules of engagement. In this article, the authors assess whether U.S. warships have a right under international law to use force in self-defence against IRGC gunboats engaged in harassment operations. In particular, we examine the U.S. military's Standing Rules of Engagement, which provide the operational architecture for defensive action by U.S forces, including warships at sea.

The European Centre of Excellence for Countering Hybrid Threats operates expert pools to support its participating states and the activities of the Centre's Communities of Interest. The expert pools work as a venue for exchanging information, building connections and gaining a comprehensive understanding of the trends under a specific theme. These trends are then linked, through Hybrid CoE, to potential hybrid threats. The expert pools are an ongoing process and provide content for the Centre's work. Engaging with the expert pools and the activity relating to them is in line with Hybrid CoE's founding memorandum of understanding, which states that Hybrid CoE is to act as a hub of expertise, to offer collective competence and to encourage strategic-level dialogue. This activity should be multidisciplinary and academic-based. Thus, the purpose of engaging with the expert pools is not to pursue a single truth, but rather to provide multiple perspectives on current challenges, to provide perspectives on the academic discourse on the topic, and to serve as a background for policymakers. The added value of this work is that it examines the subject from a hybrid threat perspective. Each participating state, the EU and NATO can then consider which facets of knowledge will be most useful for it from its own perspective.

The International Criminal Court was set up as a court of last resort to prosecute the most serious crimes under international law when its member states are either unable or unwilling to act. The African Union initially welcomed the court due to the continent's history of violence and war. However, this soured when the ICC began indicting African heads of state and government officials. Since then, there has been a constant 'battle' over whether such defendants could invoke immunity under customary international law. General criticism of the ICC by the African Union and other observers for its lack of focus has turned into region-specific criticism of the court as a 'Western tool,' singling out and targeting African leaders. Consequently, African states have started to refuse to cooperate with the Court. At an AU Summit in January 2018, a resolution was adopted to seek an Advisory Opinion from the International Court of Justice on the issue of immunity in respect to the ICC. This article will elaborate on the often-strained AU-ICC relationship prior to the 2018 AU Summit before examing three scenarios highlighting how an ICJ decision would affect the present AU-ICC relationship. The article concludes with recommendations and the observation that a compromise must be sought to end the current standoff and impasse.

On January 2, 2020, at the direction of the President of the United States, the US military conducted an air strike in Iraq targeting Qassem Soleimani, a major general in the Islamic Revolutionary Guard Corps of Iran, and the commander of an expeditionary Revolutionary Guards unit called the Qods Force. Among others also killed in the strike was Abu Mahdi al-Muhandis, the leader of Kata'ib Hizballah, also known as KH, a Qods Force-backed Shia militia in Iraq. The author explains the international and domestic law underpinnings of the January 2nd air strike. Much of what I will explain is reflected in publicly available documents that the U.S. Government has already provided to the United Nations Security Council and to Congress. The key legal conclusions are already a matter of record. This relied on the United States' inherent right to self defence, the President's Article II constitutional power as Commander-in Chief and statutory authority under the 2002 Authorization for Use of Military Force (AUMF) to defend the national security of the United States against the continuing threat posed by Iraq.

The so-called Caroline Test has been used (and misused) for 179 years. It was referenced both to condemn the German invasion of Norway during World War II and to justify the War on Terror's expansive views on pre-emptive self-defence and the "unwilling or unable" standard. Very few times is one single set of facts as influential and relevant in the evolution of the law as this one. And yet there is a problem: our lawyerly obsession with it is quite probably based on flawed methodology.

The influence of military members' malevolent personality traits on their ethical attitudes and behaviors has been the subject of research for decades. We investigated the relationship between malevolent individual difference factors (Machiavellianism, narcissism, psychopathy, the dominance facet of social dominance orientation, and right-wing authoritarianism) and aspects of military ethics before and during a peacekeeping mission to Mali. Based on pre-service responses from 175 Swedish soldiers, a factor analysis revealed a latent variable to which all individual difference factors contributed. This latent "core of darkness" was related to being more positive toward unethical behaviors both in a warzone and in the Swedish military organization. Extending these findings using a sub-sample of the soldiers (n = 63), we also found that the latent darkness variable prospectively predicted a higher frequency of self-reported insulting and cursing of noncombatants while in Mali. Our results suggest that malevolent individual difference factors have a common core and that moral transgressions during peacekeeping can be predicted and perhaps minimized by identifying soldiers who score high on this common core. However, more research is needed to understand the unique relations of some malevolent factors and different types of morally questionable warzone behavior.

The US drone strike on Qassem Soleimani, one of the most important members of the Iranian leadership, raises many complex questions of international law. Professor Milanovic examines the lawfulness of the strike from the standpoint of the law on the use of force. He first sets out the parameters of the US justification for killing Soleimani, which is some variant of self-defence against an imminent armed attack. He then looks at the notion of an imminent attack, at the different ways such an attack can be repelled, and at whether, on the facts as we know them, the US strike should be regarded as lawful.
The author argues that even if one accepts a broad theory of self-defence against an attack that is yet to occur, such as that espoused by the US government itself, the strike is likely to be unlawful. It is improbable that the US would be able to meet the factual requirements that it needs to justify the strike – in particular, there are serious doubts that there even was an imminent attack, and there are serious doubts that the method the US chose to resist that supposed attack was necessary under the circumstances. If such was the case, the US breached the prohibition on the use of force in Article 2(4) of the UN Charter vis-à-vis both Iran and Iraq. Finally, the post looks at the illegality of the threats of further use of force made by President Trump against Iran, which are unlawful both as a matter of the jus ad bellum and the jus in bello.

This post — the first in a two-part series — considers the law relevant to the U.S. withdrawal from Syria in early October. Experts condemned Turkey's invasion as a violation of Article 2(4) of the UN Charter, an unlawful act of aggression, and as potentially entailing crimes against humanity. Turkish forces and their proxies have reportedly committed a host of violations of international humanitarian law (IHL) in addition, including through indiscriminate attacks, summary killings, torture, and rape against Kurdish populations. The authors take up three legal issues relevant to understanding whether the US was able to abruptly remove its troops and support for the SDF just ahead of Turkey's invasion without incurring international responsibility.

The drone strike that killed Major General Qassem Soleimani, leader of the Quds Force of the Islamic Revolutionary Guard Corps, raises many legal issues, but one of the most significant—at least to the American constitutional order—is that President Donald Trump ordered the strike without so much as informing Democratic leadership in Congress, disregarding Congress's essential role in initiating war. If Congress fails to respond effectively, the constitutional order will be broken beyond repair, and the president will be left with the unmitigated power to take the country to war on his own—anywhere, anytime, for any reason.