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The Lists: See the Aspals Archive
Last Year's List |
Date | Title | Author | Reference |
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December | Human Augmentation - The Dawn of A New Paradigm | DCDC and BODP | Strategic Implications Project, May 2021 |
The prospect of using technology to radically enhance human performance has been the subject of radical debate for some time. What the authors say is certain is that the field of human augmentation has the potential to transform society, security and defence over the next 30 years. We must begin to understand the implications of these changes and shape them to our advantage now, before they are thrust upon us.
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December | Questioning the Coherence of an Extraterritorial Legal Obligation to Prevent Genocide and Crimes Against Humanity | Luke Glanville | Opinio Juris, 6 December 2021 |
Extraterritorial obligations for the prevention of genocide and other atrocity crimes have become more firmly established in international law in recent years than is commonly recognized. But such legal developments, while remarkable, are troublingly incoherent.
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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.
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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.
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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.
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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).
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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.
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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.
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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.
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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.
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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 |
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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.
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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.
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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.
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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?
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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.
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May 2021 | The Rabbit Hole, from Antwerp to Gaza | Alonso Gurmendi | Opinio Juris 19 May 2021 |
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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 |
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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 |
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May 2021 | We're Only Deceiving Ourselves | Major Dom Wiejak | The Wavell Room, 12 May 2021 |
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April | No Legal Objection, Per Se | E.M. Liddick | War on The Rocks, 21 April 2021 |
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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.'
Summary extracted by AspalsFor 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." ![]() |
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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.
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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 |
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March 2021 | What justice can international law bring to Syrians? | Asser Khattab and Vito Todeschini | Just Security, 15 March 2021 |
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March | Truth, Justice, and the Narrative in International Criminal Law | Steven Kay QC | Just Security, 2 March 2021 |
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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.
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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.
Summary extracted by AspalsThe 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. ![]() |
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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 |
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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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