A Needle in a Haystack? Locating the Legal Basis for Detention in Non-International Armed Conflict

This is the author accepted manuscript. The final version is available from Brill.The article examines the problem of the absence of an express legal basis to detain in the law of non-international armed conflict. It considers the attempts to locate the legal basis by way of logical inference either from a putative power to kill in non-international armed conflicts or from the power to detain in international armed conflicts. It also considers teleological and practical arguments posed against the existence of a legal power to detain. It then argues that the preferred interpretation is to view the legal basis to detain as inherent in the law of non-international armed conflict. The existence of an implicit legal basis is consistent with the understandings and expectations of the drafters of Additional Protocol I, as evidenced by a close examination of the travaux préparatoires. Moreover, the post-World War II practice and some modern-day pronouncements corroborate the existence of an inherent legal basis in customary IHL. Finally, in light of the challenges posed by modern conflicts marked by the asymmetry of the parties and by the extraterritoriality of the hostilities, the law of NIAC is far more effective if it is interpreted to contain a legal power to detain than if it is not

A matter of principle(s): the legal effect of impartiality and neutrality on states as humanitarian actors

This article examines the legal nature of the principles of impartiality and neutrality of humanitarian action, focussing on States as humanitarian actors. It argues that international law does not provide a general legal basis for the universal applicability of these principles, contrary to a common interpretation of the ICJ’s 1986 judgment in the Nicaragua case. Nevertheless, impartiality and neutrality may have significant legal effect on the conduct of States. They may be directly binding on States through the operation of Security Council resolutions drafted in mandatory language. In addition, they may have indirect effect due to the States’ obligation to respect the adherence to the principles by humanitarian organizations. On the basis of this argument, the article pleads for increased conceptual clarity and, in turn, effectiveness of humanitarian action

Silent War: Applicability of the Jus in Bello to Military Space Operations

This is the final version of the article. Available on open access from the publisher via the link in this record.There is another ORE record for this publication, which incorporates final minor changes to the text: http://hdl.handle.net/10871/31909There are no molecules of air that could carry sound waves in the vacuum of outer space. Accordingly, space warfare may well become the first type of war whose signature sound would be—silence. But does the law of armed conflict (jus in bello) fall silent in times of Silent War? This article addresses the uncertainty at the heart of this issue. First, it delineates the relevant conceptual framework by examining the factual notion of “military space operations,” and its relationship with the legal concept of “armed conflict,” as well as the overlap between the potentially applicable bodies of law. It then argues in favor of the general applicability of the jus in bello to military space operations while distinguishing this issue from the separate question of whether war in outer space can be justified. Finally, it considers the four specific dimensions of applicability of the relevant law: material, personal, temporal, and geographic. The article concludes that the jus in bello applies to space operations generally and clarifies the situations, persons, times, and places to which this body of law applies

From the Vanishing Point Back to the Core: The Impact of the Development of the Cyber Law of War on General International Law

This is the final version of the chapter. Available from NATO CCD COE Publications via the link in this record.The law of war was famously described by Sir Hersch Lauterpacht as being ‘at the vanishing point of international law’. However, in a historical twist, international legal scrutiny of cyber operations emerged and developed precisely through the optics of the law of war. This paper analyses the influence that the development of the cyber law of war has had and might yet have on the ‘core’ of international law, in other words, on general international law. It analyses three key dimensions of the relationship between the law of war and general international law: systemic, conceptual, and teleological. It argues that, firstly, a systemic-level shift has taken place in the discourse, resulting in the academic debate and state focus moving from law-of-war questions to questions of general international law including sovereignty, non-intervention, and state responsibility. A better understanding of this trend should allay the fears of fragmentation of international law and inform the debate about the relationship between the law of war and ‘core’ international law. Secondly, this development has created fertile grounds for certain concepts to migrate from the law of war, where they had emerged, developed or consolidated, into general international law. A case in point is the functionality test, which originated as a compromise solution to determine whether a cyber operation amounts to an ‘attack’ under the law of war, but which may offer additional utility in other areas of international law including the law of state sovereignty and the law of arms control and disarmament. Thirdly, however, it is imperative that the unique teleological underpinning of the law of war is taken into consideration before introducing its rules and principles to different normative contexts. Paradoxically, a blanket transplantation of these norms might in practice jeopardise the underlying humanitarian considerations

Principles of Neutrality and Impartiality of Humanitarian Action in the Aftermath of the 2011 Libyan Conflict

publication-status: AcceptedThis is the author's version of a work accepted for publication by Cambridge University Press, and has been reproduced by permission of Cambridge University Press. A definitive version was subsequently published in Humanitarian Action: Global, Regional and Domestic Legal Responses / edited Andrej Zwitter, Christopher K. Lamont, Hans-Joachim Heintze, and Joost Herman, http://dx.doi.org/10.1017/CBO9781107282100Have the principles of neutrality and impartiality of humanitarian action become a myth, a dead concept emptied of its contents due to the reality of modern asymmetrical armed conflicts? This chapter considers the events of the Libyan civil war of 2011 against the legal backdrop of international humanitarian law (IHL) to argue that although these two principles have been placed under severe strain in Libya, any reports of their death would nonetheless be greatly exaggerated. Although the trend of their weakening that has been observed in the wars in Iraq and Afghanistan has in some ways continued, they still constitute, in law and in practice, the guiding principles of humanitarian action. The analysis provided in this chapter is divided into three main parts. Part I provides the legal framework applicable to the provision of humanitarian action during the Libyan conflict from the perspective of IHL. Part II analyses how principles of neutrality and impartiality of humanitarian action have been respected by the quantitative and qualitative nature of aid provided in Libya by external actors. Part III analyses to what extent the conflict posed a challenge to neutrality and impartiality with respect to agents of humanitarian action, contrasting the different problems faced by humanitarian agencies on the one hand and multi-purpose actors on the other. The conclusion draws lessons to be learned from the analysis presented and supports on its basis the central claim of this chapter that the two principles, even if badly battered during the war, are still alive and kicking

Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors

This is the author accepted manuscript. The final version is available from OUP via the DOI in this record.Cyber operations pose a set of novel challenges to the generally conservative body of the law of State responsibility. Central among them is the problem of attribution, which lies at the intersection of technology and law. This article reflects the recent developments in the States’ technological capacity to identify the sources of cyber attacks from the perspective of international law. It revisits Article 8 of the International Law Commission’s Articles on State Responsibility in order to ‘decode’ its contents vis-à-vis its drafting history and with an eye on its future application to the conduct in cyberspace. The article argues that there are three autonomous standards of attribution built into that provision: instructions, direction, and control. It then demonstrates the utility and limitations of each of them against the backdrop of actual and hypothetical cyber operations. The article concludes with suggestions for further development of the law in this area, focussing on the missing potential of the law to regulate instigation of wrongful cyber conduct and on the prohibitively strict test of control applicable de lege lata.I would like to gratefully acknowledge the generous support of the Minerva Center for the Rule of Law under Extreme Conditions at the Faculty of Law and Department of Geography and Environmental Studies, University of Haifa, Israel and of the Israeli Ministry of Science, Technology and Space

From Cyber Norms to Cyber Rules: Re-engaging States as Law-makers

This is the author accepted manuscript. The final version is available from CUP via the DOI in this record.There is another ORE record for this publication: http://hdl.handle.net/10871/31905Several indicators point to a crisis at the heart of the emerging area of international cyber security law. First, proposals of internationally binding treaties by the leading stakeholders, including China and Russia, have been met with little enthusiasm by other states, and are generally seen as having limited prospects of success. Second, states are extremely reluctant to commit themselves to specific interpretations of controversial legal questions and thus to express their cyber opinio juris. Third, instead of interpreting or developing rules, state representatives seek refuge in the more ambiguous term ‘norms’. This article argues that the reluctance of states to engage themselves in international law-making has generated a power vacuum, lending credence to claims that international law fails in addressing modern challenges posed by the rapid technological development. In response, several non-state-driven norm-making initiatives have sought to fill the void, including Microsoft’s cyber norms proposals and the Tallinn Manual project. The article then contends that this emerging body of non-binding norms presents states with a critical window of opportunity to reclaim a central law-making position, similarly to historical precedents including the development of legal regimes for Antarctica and nuclear safety. Whether the supposed crisis will lead to the demise of inter-state cyberspace governance or to a recalibration of legal approaches will thus be decided in the near future. States should assume a central role if they want to ensure that the existing power vacuum is not exploited in a way that would upset their ability to achieve their strategic and political goals

On the Shelf, But Close at Hand: The Contribution of Non-State Initiatives to International Cyber Law

This is the author accepted manuscript. The final version is available from Cambridge University Press via the DOI in this record.In late 2018, the New York Times reported that the U.S. Cyber Command had targeted individual Russian hackers in order to deter them from engaging in conduct that could affect the organization and outcome of the U.S. mid-term elections. This unusual pre-emptive step suggests that states are looking for creative solutions to safeguard their national interests in cyberspace. But to what extent should their conduct be guided by considerations of international law? In this essay, I explore several key aspects of that central conundrum. I argue that (1) we should see cyberspace as an underregulated (but not ungoverned) domain; (2) a main reason for that state of affairs lies in a unique strategic dilemma innate to the cyber domain; and (3) non-state initiatives, including the eponymous “rule book on the shelf,” have a critical role to play in the development of the law in this area

Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law

types: ArticleThis is the author's version of a work accepted for publication by CUP. A definitive version was subsequently published in Israel Law Review / Volume 48 / Issue 01 / March 2015, pp 55-80. Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2015 DOI: http://dx.doi.org/10.1017/S0021223714000260 Published online: 29 January 2015This article presents the case for a progressive interpretation of the notion of military objectives in international humanitarian law (IHL), bringing computer data within the scope of this concept. The advent of cyber military operations has presented a dilemma as to the proper understanding of data in IHL. The emerging orthodoxy, represented by the 2013 Tallinn Manual on the International Law Applicable to Cyber Warfare, advances the argument that the intangible nature of data renders it ineligible to be an object for the purposes of the rules on targeting in IHL. This article, on the contrary, argues that due to its susceptibility to alteration and destruction, the better view is that data is an object within the meaning of this term under IHL and thus it may qualify as a military objective. The article supports this conclusion by means of a textual, systematic, and teleological interpretation of the definition of military objectives found in treaty and customary law. The upshot of the analysis presented here is that data that does not meet the criteria for qualification as a military objective must be considered a civilian object, with profound implications for the protection of civilian datasets in time of armed conflict

“Enemy Controlled Battlespace”: The Contemporary Meaning and Purpose of Additional Protocol I’s Article 44(3) Exception

This is the final version. Available from the publisher via the link in this recordThe contemporary propensity for, and risk of, armed conflict taking place among the civilian population has cast a new light on a number of the long-standing challenges to the application of international humanitarian law (IHL) during modern warfare. One is the determination of combatant status and, more specifically, the question when the general requirement for the combatants to distinguish themselves from the civilian population may exceptionally be attenuated. In order to answer that question, the present Article re-examines Additional Protocol I’s oft-reviled Article 44(3) and adopts an interpretation thereof that better comports with the object and purpose of the provision than those previously in vogue. To lay the foundation for assessing the meaning of the key terms in the provision, the Article first introduces IHL’s extant standards for combatancy. The piece then turns to the travaux préparatoires of Article 44(3). This analysis exposes the limitations of relying solely on the provision’s drafting history to understand the scope of the exception. Therefore, and consistent with the interpretive approach set forth in the Vienna Convention on the Law of Treaties, the Article then considers the object and purpose of Article 44(3). Armed with an understanding of this telos of the provision, the Article proffers “enemy control of battlespace” as the appropriate standard for determining situations to which the exception applies. Finally, the Article highlights a number of legal safeguards that promote the protection of the civilian population whenever the exception is applicable