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

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

Hostile Protected Persons or Extra-Conventional Persons: How Unlawful Combatants in the War on Terrorism Posed Extraordinary Challenges for Military Attorneys and Commanders

First, this Article reviews policymakers\u27 and commentators\u27 categorization of participants in Operation Enduring Freedom, the armed conflict in Afghanistan against al Qaeda and Taliban fighters. This Article concentrate specifically on the status of participants operating at the fringes of the categories of persons protected by the Geneva Conventions. It shows, for example, how al Qaeda and the Taliban fighters tested the bounds of the Conventions by employing methods of “warfare” which rendered them non-distinct and therefore made a determination of their status unclear. This Article demonstrates how policymakers and ultimately the U.S. President created a class of persons--so-called extra-conventional persons--who participated in hostilities yet failed to qualify for protection under any of the applicable Geneva Conventions. Second, this Article presents the training and education available to the judge advocates who faced these legal issues. it further presents perspectives on the law of war as it appeared from the resources, education, and training commonly available to deployed judge advocates. This Article ultimately concludes that international law and U.S. military doctrine classify many who participate in hostilities as “protected persons” under the Fourth Geneva Convention--a concept ultimately at odds with the determination made by U.S. policymakers.Third, and in concert with the two issues identified above, this Article describes the enormous challenges these issues created for U.S. military persons participating in Operation Iraqi Freedom. Specifically, it illustrates operational and legal challenges faced by military attorneys and the commanders they advised. It then explores legal issues that arose during the detention and occupation operations with respect to fighters associated with Saddam Fedayeen. Observing apparent similarities between Saddam Fedayeen and Taliban fighters earlier categorized as extra-conventional, this Article describes how, despite similarities in applicable law and attributes, judge advocates determined that these irregular fighters were protected persons under the Fourth Geneva Convention. It concludes that judge advocates dealt with these challenges responsibly, providing sound legal advice that balanced commanders\u27 mission requirements with the humanitarian spirit of the law of war

Humanitarian Logic and the Law of Siege: A Study of the Oxford Guidance on Relief Actions

In terms of human suffering, few military operations have rivaled sieges and comparably harsh legal regimes have governed them. At a time when legal vindication of humanitarian interests in armed conflict is ascendant, conventional accounts of the law of war governing humanitarian relief may seem out of step, plagued with glaring gaps in humanitarian logic. In 2016, Oxford University professors published a United Nations-commissioned legal study—the Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict. The Guidance contends that during armed conflict international law prohibits belligerents from arbitrarily denying offers of humanitarian relief to civilian populations. It asserts belligerents must accept and accommodate neutral offers of relief or offer reasoned and legitimate justifications for denying such offers. While not immediately apparent from relevant treaty text or from conventional accounts of that text, the Guidance contends that textual tension, drafting history, and subsequent practice—each, in certain contexts, an accepted method of treaty interpretation—support the claimed prohibition. This Article argues that on careful examination, the textual interpretation, drafting history, and subsequent practice offered by the Guidance, do not support its central claim. Simple textual assessment, a fuller account of negotiating history, and a more discerning survey of subsequent practice undercut the legal claims of the Guidance. And while admirably attentive to the demands of humanity, the Guidance neglects important military considerations in its account of the law. Military doctrine and experience, especially with siege operations, explain apparent humanitarian gaps in the law and offer a stronger textual and historical account of the law’s alleged shortcomings. The interpretive approach of the Guidance underappreciates how experience with siege, particularly the demand to maintain isolation, informed the balance struck between humanity and military necessity by the States that codified the law of war applicable to relief actions. While from a humanitarian perspective, its conclusions are commendable and even supportable, the Guidance effects through cunning interpretation, amendments better left to the careful work of diplomacy and international legislation

Regulation-Tolerant Weapons, Regulation-Resistant Weapons and the Law of War

The historical record of international weapons law reveals both regulation-tolerant weapons and regulation-resistant weapons, identifiable by a number of criteria, including effectiveness, novelty, deployment, medical compatibility, disruptiveness and notoriety. This article identifies these criteria both to explain and inform existing weapons law, and also to facilitate efforts to identify weapons and emerging technology that may prove susceptible to future law of war regulation. By charting both the history and methodology of weapons law with a view toward identifying forces and influences that have made some weapons susceptible to international regulation and made others resistant, this article offers a starting point for identifying sound investments of the very precious diplomatic, political and financial capital required to produce meaningful law of war developments

Common Article 1 and the Duty to Ensure Respect

Common Article 1 to the four 1949 Geneva Conventions requires Parties to those instruments to “respect and to ensure respect for the present Convention in all circumstances.” The provision is a corollary to the general international legal obligation of States to honor their treaty commitments, expressed classically in the maxim pacta sunt servanda. Yet, academics and private organizations now use Common Article 1 as a vehicle to reimagine States’ enforcement obligations under the Geneva Conventions. Reinterpreting the article beyond its original meaning, they claim the article includes an “external” obligation—a duty on the part of all States to use all available means to ensure respect for all provisions of the Conventions by all other States during all armed conflicts, even those to which the State in question is not a party. The ICRC has adopted this position in its influential updated commentaries on the Geneva Conventions. We reject assertions that the term “ensure respect” ever encompassed an external obligation or that its meaning has evolved to do so. The requisite State practice engaged in out of a sense of legal obligation is simply lacking. In our view, “ensure respect” refers to the duty of parties to an international armed conflict to take measures to ensure their nationals and others under their control comply with the Conventions. The term imposes no obligations on States that are not party to an armed conflict, apart from those few obligations that expressly bind them during peacetime

Rethinking the Security Architecture of North East Asia

In the aftermath of the Cold War, many began to question the continuing efficacy, or at least call for reform, of collective security structures such as the North Atlantic Treaty Organization and the United Nations Security Council. Yet, North East Asia never enjoyed a formal, institutionalised collective security structure. As Russia and the United States recede and China emerges in North East Asia, this article questions whether now is the time to consider such an arrangement. Financially, Japan and South Korea are locked into a symbiotic relationship with China (as is the United States), while the government in Beijing continues to militarise and lay territorial and maritime claims to large areas of the region. Moreover, the regime in North Korea, with its new nuclear capabilities, remains unpredictable. Consequently, central components to the question of collective security in North East Asia are the equally vexing questions of what to do about North Korea and whether a new formalised security arrangement would include or exclude the People's Republic of China