1,503 research outputs found
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International humanitarian law and the targeting of non-state intelligence personnel and objects
This Article examines the targetability of individuals and organizations performing intelligence functions for a non-State group involved in an armed conflict. Specifically, it considers the circumstances under which they lose the international humanitarian law (IHL) protections from, and during, attacks that they would otherwise enjoy as civilians. To do so, the piece deconstructs IHL’s “organized armed group” construct to determine when an intelligence organization can be characterized as a component thereof. Noting that some non-State groups consist of both entities involved in the hostilities and organizations having no relationship to them, the Article introduces the concept of a non-State group’s “overall OAG,” a notion that parallel’s the characterization of a State’s various military units as its “armed forces.” Additionally, the Article assesses the circumstances under which individuals engaged in activities intelligence who are not members of an OAG may be targeted on the basis of their “direct participation in the hostilities.
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The law of cyber targeting
Cyber technology on the battlefield has outpaced the law, or at least full understanding of how extant law governs emerging capabilities—a strategically perilous state of affairs
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The Syrian intervention: assessing the possible international law justifications
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“On target”: precision and balance in the contemporary law of targeting
The law of targeting lies at the heart of international humanitarian law (IHL). As such it is the fulcrum around which discussion of combat operations revolves. The efficacy of this body of law depends on maintenance of the delicate balance between military necessity and humanitarian concerns. Mischaracterization or misapplication of IHL norms risks imbalance, thereby jeopardizing the innocent and potentially eroding State support for IHL’s application. Regrettably, while some of the current debate and commentary surrounding, inter alia, drone operations, autonomous weapons systems, cyber operations, and the current conflicts in Afghanistan, Syria, Yemen, Somalia, and Ukraine, to name just a few, is highly sophisticated, much of it has been characterized by imprecise, skewed, or wrong assertions regarding the law of targeting. It is therefore a propitious moment to revisit the structure and content of targeting law. After briefly placing the law of targeting in the broader context of IHL, this article examines the five constituent elements of a targeting operation: (1) target; (2) weapon; (3) execution of the attack; (4) collateral damage and incidental injury; and (5) location. The legality of an engagement depends on full compliance with the rules falling into each category
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Beyond state-centrism: international law and non-state actors in cyberspace
Classically, States and non-State actors were differentiated not only by disparities in legal status but also by significant imbalances in resources and capabilities. Not surprisingly, international law developed a State-centric bias to account for these imbalances. Cyberspace and cyber operations, however, have closed a number of formerly significant gaps between States’ and non-State actors’ abilities to compromise international peace and security. In fact, some non-State actors now match, if not exceed, the cyber capabilities of many States in this respect. Where public international law had long proved chiefly relevant to States’ interactions with other States, cyber operations by non-State actors increase the frequency with which public international law provides relevant and binding legal rules. This article surveys existing public international law for norms relevant to the cyber interactions of cyber-empowered States and non-State actors. Specifically, the article illustrates how the principles of sovereignty, State responsibility and the jus ad bellum are particularly relevant to States engaged in struggles with non-State actors for security and supremacy in cyberspace
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State opinio juris and international humanitarian law pluralism
International humanitarian law has developed through a pluralistic process. Its history reveals a pattern of rough proportionality between State opinio juris and non-State expressions of law. These diverse sources have maintained a respectable yet realistic balance between humanity and military necessity. However, current IHL dialogue presents a stark contrast to the vibrant and pluralistic exchanges of the past. The substantive input of non-State actors such as non-governmental organizations, tribunals, and scholars far outpaces the work of States. Parity of input, especially in quantitative terms, is surely too much to demand and surely not necessary given the special status of State opinio juris. However, States’ legal agencies and agents should be equipped, organized, and re-empowered to participate actively in the interpretation and development of IHL. This article, extracted from a larger work, argues that reinvigorating opinio juris would reestablish the pluralistic IHL dialogue that formerly tested, updated, and enriched the balance between military necessity and humanity
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Wired warfare 3.0: protecting the civilian population during cyber operations
As a general matter, international humanitarian law is up to the task of providing the legal framework for cyber operations during an armed conflict. However, two debates persist in this regard, the resolution of which will determine the precise degree of protection the civilian population will enjoy during cyber operations. The first revolves around the meaning of the term “attack” in various conduct of hostilities rules, while the second addresses the issue of whether data may be considered an object such that operations destroying or altering it are subject to the prohibition on attacking civilian objects and that such effects need be considered when considering proportionality and the taking of precautions in attack. Even if these debates were to be resolved, the civilian population would still face risks from the unique capabilities of cyber operations. This article proposes two policies which parties to a conflict should consider adopting in order to ameliorate such risks. They are both based on the premise that military operations must reflect a balance between military concerns and the interest of States in prevailing in the conflict
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"Out of the loop": autonomous weapon systems and the law of armed conflict
The introduction of autonomous weapon systems into the “battlespace” will profoundly influence the nature of future warfare. This reality has begun to draw the attention of the international legal community, with increasing calls for an outright ban on the use of autonomous weapons systems in armed conflict. This Article is intended to help infuse granularity and precision into the legal debates surrounding such weapon systems and their future uses. It suggests that whereas some conceivable autonomous weapon systems might be prohibited as a matter of law, the use of others will be unlawful only when employed in a manner that runs contrary to the law of armed conflict’s prescriptive norms governing the “conduct of hostilities.” This Article concludes that an outright ban of autonomous weapon systems is insupportable as a matter of law, policy, and operational good sense. Indeed, proponents of a ban underestimate the extent to which the law of armed conflict, including its customary law aspect, will control autonomous weapon system operations. Some autonomous weapon systems that might be developed would already be unlawful per se under existing customary law, irrespective of any treaty ban. The use of certain others would be severely limited by that law.
Furthermore, an outright ban is premature since no such weapons have even left the drawing board. Critics typically either fail to take account of likely developments in autonomous weapon systems technology or base their analysis on unfounded assumptions about the nature of the systems. From a national security perspective, passing on the opportunity to develop these systems before they are fully understood would be irresponsible. Perhaps even more troubling is the prospect that banning autonomous weapon systems altogether based on speculation as to their future form could forfeit their potential use in a manner that would minimize harm to civilians and civilian objects when compared to non-autonomous weapon systems
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