Force Doctrine Research Articles

Legal Force of an Administrative Act: The Problem of Definition

The legal force of an administrative act determines its validity, affects the powers of an administrative body that adopted this act to change or cancel it, and the legal force makes the act binding on every administrative authority and every person interested in this act. This term has not yet been fully studied and is absent from Russian legislation. There are some questions about the implementation of the theory of the substantive and formal legal force of an administrative act into the doctrine. There are also problems of the relationship between the legal force of the original act and the act derived from it. It is necessary to clarify the possibility of using administrative discretion when resolving issues of the legal force of administrative acts. To research legal force of an administrative act, traditional methods of legal study were used, especially the historical-law method and the comparative law method, which are of great importance for this article. They have allowed to find Russian tradition, which has to be used to develop the doctrine of legal force of an administrative act, and the main foreign legal research on this subject could be compared with Russian thought and common features were discovered that could also be used to improve the Russian doctrine. As a result, the terms substantive and formal legal force should be returned to the Russian legal vocabulary, since they were used to describe legal force in our legal tradition. Interesting results can be obtained by comparing judgements and administrative acts, and the specificity of administrative acts will be emphasized. This way allows to apply some legal constructions characteristic of a judicial theory well developed in practice, including the “Roman basis” of the legal force of an administrative act. The division of administrative acts into void and voidable will make it possible to clarify ideas about their legal force, as well as the powers of authorities to amend or cancel such acts. The scope of administrative discretion when deciding questions of the validity of void and voidable acts will also vary.

CENTRALIZED CONTROL OR DISTRIBUTED CONTROL – DO WE NEED A PARADIGM SHIFT?

The centralized control and decentralized execution is one of the basic tenets of air power command and control, a tenet that has proven its importance and usefulness throughout history. The development of electronic and cyber warfare capabilities, space, surface-to-air missile systems and A2/AD (anti-access/area interdiction) strategies create contested operational environments that limit traditional concepts of command and control (C2) in the effective employment of air forces. The new US Air Force Doctrine, “Air Force Doctrine Publication 1 – The Air Force”, formally establishes mission command as the philosophy for command and control (C2) airpower and centralized command, distributed control, and decentralized execution the way to be implemented. Conducting air operations in a contested operational environment requires an approach to command-and-control principles that responds to threats to communications and attacks on air operations centres. Distributed control exploits the flexibility and versatility of air power to ensure that it remains responsive, survivable, and sustainable, especially in a contested environment. The benefits associated with distributed control (as well as decentralized execution) are maximized when the commander's intent is clearly communicated and guides subordinate actions, in order to allow continuity of operations. Commanders will continue to face the challenge of harmonising centralization, distribution and decentralization, a struggle that will be situation dependent and that requires an approach within the guidance of the higher echelon.

Indonesian Student Movement Moral Force Doctrine in Social Change Under Jokowi’s Indonesia and Its Future

The development of Indonesian democracy is slowly regressing under Jokowi’s Administration, amidst that regression, two massive student movement occurred in 2019 and 2020. Despite the scale of the movement, those movement couldn’t maximize their success. This article attempts to answer two questions regarding that matter, first, why the student movement in Jokowi’s Administration couldn’t achieve success? Second, is the student movement still viable to do a social change? To answer those questions this article examined the moral force doctrine which constructed along with the student movement throughout the history. This article argue that the moral force doctrine needs to be abandoned because it made the student movement have an obscure position towards the establishment and limiting the student movement to build alliances with other political groups. Yet, the student movement still viable to do a social change in a time of crisis even it doesn’t change its doctrine.

Law as Force: A Dispute and a Reassessment

Legal positivism has been under attack, especially by doctrines contesting its proud claim of a conceptually necessary separation of law and morality. To such an attack the positivist reaction has been that of articulating on the one side a stricter, exclusivist version of the separationist thesis, and on the other side that of conceding to the possibility, though not to the necessity, of some (thus contingent) connection between law and moral requirements. An additional, traditional, third way of reasserting a positivist orthodoxy has been recently proposed, that of once again stressing the law as grounded in the use of force and sanction. This third way circumvents Herbert Hart’s rejection of imperativism and the external point of view through the adoption of an eclectic, anti-essentialist epistemic strategy. However, such anti-essentialism is only apparent in so far as force and sanction are considered as basic conditions of the experience of law, and that this is forcefully and indeed essentially reduced to some kind of violence. But such reduction, in spite of its proclaimed common sense perspective, does not take account of the complexity and plurality of what law is assumed to be by those that practice it. The law as force doctrine tries also to justify itself as a methodology that would allow for an anti-ideological assessment of legal practice, while as a matter of fact making it impossible to articulate an anti-authoritarian account of legal operations.

‘Police fire on rioters’: everyday counterinsurgency in a colonial capital

ABSTRACT Many have shown how ‘the British way’, a doctrine of minimum force, was problematic in theory and practice, especially in the final decades of empire. While the role of the colonial police in suppressing uprisings is often overlooked, this article argues that the police carried out everyday counterinsurgency campaigns. Using British archival records, this article examines a 1950 dockworker strike in Dar es Salaam, the colonial capital of former Tanganyika. Workers’ resistance was perceived by colonial authorities as insurgency, which led to the crosspollination of new policing strategies throughout the British Empire to expand surveillance, control riots, and break strikes.

Ósmy rozdział adhortacji Amoris laetitia w interpretacji kardynała F. Coccopalmerio

A special difficulty in the reception of the Exhortation Amoris Laetitia is its eighth chapter, concerning the accompanying, discerning with and inclusion of persons who are in an irregular marital situation. The article presents undoubtedly the most important voice in this matter, namely the main thoughts from the guide, “The Eighth Chapter of the Apostolic Post-Synodal Exhortation Amoris Laetitia ” written by Cardinal Francesco Coccopalmerio, chairman of the Pontifical Council for Legislative Texts (during the years 2007–2018). The author of the article portrays the idea and main themes of this document – a guidebook, building on and explaining the difficult topics of the papal exhortation. First, he emphasizes respect for the currently in force doctrine, and at the same time the necessity of pastoral care of people in irregular situations. Next, he illustrates the conditions in which these persons find themselves, and then illuminates the relations of doctrine and norms to the person in pastoral care.

Towards a Contextual Definition of Rape: Consent, Coercion and Constructive Force

AbstractThis paper considers ‘consent‐based’ and ‘coercion‐based’ models of defining rape. It argues that the ability of these models to adequately protect against violations of sexual autonomy is dependent on their engagement with the broader circumstances within which sexual choices are made. Following an analysis of both models it is argued that attempts to contextualise consent and coercion are often undermined by evaluative framings that encourage scrutiny of the complainant's actions at the expense of engagement with the broader circumstances. This is particularly problematic where rape occurs as a result of non‐violent coercion and the victim does not verbally or physically demonstrate their lack of consent. The paper draws on United States military law and argues that the doctrine of constructive force, which has been used to deal with non‐violent coercion in these contexts, has the potential to progressively reshape our contextual and evaluative framings in domestic contexts.

The changing rules of jus ad bellum : conflicts in Kosovo, Iraq and Afghanistan

This article focuses on three instances of the use of armed force in international relations. The three instances that are explored are the intervention by NATO in Kosovo, the armed attack by mainly the USA and the UK against Afghanistan and the war against Iraq in 2003. The purpose of this investigation is to examine the legality of the coercive measures in order to ascertain the effects that these actions had in relation to article 2(4) of the UN Charter. The proposed justifications for the attacks differ and these are carefully scrutinized against the jus ad bellum as to determine the legality of the attacks. The notion of humanitarian intervention was used as a ground for justification by various international scholars to explain the use of force in Kosovo, but this concept is not recognized in terms of international law. The attack on Afghanistan was based on article 51 of the UN Charter. The attacks were directed at Afghanistan as this state harboured the terrorists responsible for the attacks on the USA. The mere harbouring of terrorists does not give rise to the use of armed force on the basis of article 51 and as such the use of coercive measures against Afghanistan was illegal. The use of force in Iraq was mainly based on the doctrine of pre-emptive force which is alien to international law. The USA and its coalition partners also acted in contravention with the jus ad bellum in this regard. The author poses certain proposals in relation to the jus ad bellum and stresses the importance of article 2(4) which must ensure that international relations are not once more regulated by the use of armed force. 

The new killer drones: understanding the strategic implications of next-generation unmanned combat aerial vehicles

The expansive use of armed unmanned combat aerial vehicles (UCAV), or ‘drones’, by the United States over the past decade has occurred within a particular strategic context characterized by irregular warfare operations in permissive environments. Ongoing strategic, ethical and moral debates regarding specific uses of drones may well be overtaken by a new generation of armed combat drones able to survive and operate in contested airspace with design elements such as stealth and greater levels of machine autonomy. These design parameters, and the likely strategic context within which second generation UCAVs will be deployed, suggest a fundamentally different set of missions from those performed by the current generation of drones. The most beneficial characteristic of current unmanned systems has been the ability to combine persistent surveillance with the delivery of small precision-guided munitions. With a shift to more contested environments, this type of armed surveillance mission may become less practical and second generation UCAVs will instead focus on high intensity warfare operations. These new systems may have significant implications for deterrence, force doctrine and the conduct of warfare

Profesionalisme TNI di tengah Transisi Politik

The Indonesian Armed Force (Tentara Nasional Indonesia, TNI) has for decades been the instrument used by those in power to endorse and hold their powerful positions. As a consequence, the Indonesian Armed Force has not only lost its professionalism, but also its quality and competence. A professional army can only be established in the condition of a democratic political life. In this article the author describes the situation in Indonesia nowadays, i.e. the transition towards democratization. In this process, the most important agenda is to return the main function of the Indonesian Armed Force in line with the need and the will of Indonesian people, i.e. to guard the nation sovereignty and territory. However, the author also recognizes the other functions the armed force has to carry out. In relation to this, the article examines how the professionalism of the Indonesian Armed Force can be formed in the midst of a political transition process. The author proposes several steps to be taken, i.e. to revise or replace the legislation about the state's defense policy; revise the armed force's doctrine so as to accommodate the people's needs; revise the legislation on the police force to enable the police to guard the civil order, strengthen the law, and avoid the outside intervention; as well as to allow the armed force's members to choose their representatives in the general election.

Huw Bennett. Fighting the Mau Mau: The British Army and Counter-Insurgency in the Kenya Emergency.

Mau Mau history is a contentious, high-stakes field. Four years after the 2005 publication of my own Imperial Reckoning and David Anderson's Histories of the Hanged, five elderly Kikuyu filed claims in London's High Court of Justice alleging that British colonial officials had perpetrated systematic abuses in the Mau Mau detention camps, emergency villages, and interrogation centers. The case was unprecedented in the history of the British Empire. As an expert witness, I joined the case at its inception; later, Anderson followed suit, as did Huw Bennett. Together we had privileged access to the 300 boxes of previously undisclosed files that British officials “discovered” at Hanslope Park during the course of the case. Eventually we accessed some 20,000 pages of the new files, many of which confirmed our own revisionist histories, as well as gestured to the need for additional revisionist studies. It is here where Bennett's new book on the British army was poised to offer a major contribution to the field. Fighting the Mau Mau: The British Army and Counter-Insurgency in the Kenya Emergency is the first in-depth examination of the role of Britain's military in the suppression of the Mau Mau. It successfully inserts the army and its main protagonist, General Sir George Erskine, into the narrative, and with it interrogates the doctrine of minimum force, which Bennett calls “exaggerated, at the expense of the equally important notion of exemplary, punitive force” (p. 90). Pointing to multiple examples of the army's complicated participation in brutal excesses, Bennett provides a wealth of new empirical evidence that will be of great interest to many scholars.

UN Charter Article 51 and the Right to ‘Anticipatory Self-defense’: Validity of the US Preventive War Doctrine against Al Qaeda

This article investigates whether the US war against Al Qaeda in Afghanistan is a customary ‘inherent right’ under the right to force doctrine as codified in Article 51 of the UN Charter. While its fool-proof nucleus covers national states inter partes relations, the provision's applicability to non-governmental organizations (NGOs) is unclear, especially in cases of conflicts, where a NGO is a party in an international conflict, such as the US-Al Qaeda conflict in Afghanistan. Because Article 51's foundation is in ‘a defensive strategy,’ states that deploy military troops across borders under the cover of self-defense must notify the UN Security Council immediately and must justify their actions. The distinction between armed attack and armed defense is the most important element defining the legality of a state's conduct. However, the Article 51 inherent right of self-defense arises solely to protect against ‘armed attacks,’ and under international law, an ‘armed attack’ alone triggers the right of self-defense. This raises the question as to whether a terrorist attack undertaken by a NGO qualifies as an armed attack? What guidance do the UN Security Council resolutions of September 2001 provide to support the US claim of anticipatory self-defense, as they do not invoke the notions of war, armed attack, or military measures, as they refer only to ‘terrorist attack,’ a term that is not a defined and internationally accepted term of war?

The minimum force debate: contemporary sensibilities meet imperial practice

No aspect of British counter-insurgency has been more problematic and controversial than the doctrine of minimum force. This common law principle provided ambiguous guidance for soldiers and police quelling unrest within a global empire and has become the subject of intense scholarly debate in the post-imperial era. The argument divides academics into two broad camps. One group sees minimum force as a vital element of a largely successful, uniquely British approach to counter-insurgency. The other claims that the legal principle never really restrained British security forces and considers the British approach to counter-insurgency neither unique nor particularly successful. This debate appeared in an exchange of views between John Newsinger and the current author in a 1990 volume of Small Wars and Insurgencies and more recently in a similar but lengthier argument between Rod Thornton and Huw Bennett in the same journal between 2007 and 2010.1 Such disagreements are of course endemic to academic discourse. This one, however, seems to be about more than history.

Harmonizing Disparate Use of Force Doctrines in International Law: Preemption, Anticipation, and the United Nations Paradigm

One of the most contentious issues in international law involves when a state may use force in self-defense against another state or when a state may use force against a non-state group, which the state believes intends to do it harm. This thesis looks at the disparate theories of when a state may use force against another state in self-defense and when a state may use force terrorist / asymmetric groups. This thesis focuses on the role of the United Nations use of force paradigm, the theories of anticipatory self-defense and preemptive self-defense and the pros and cons for each theory in addition to popular arguments posited by commentators concerning each theory. This thesis then posits that none of the major theories concerning use of force are adequate as currently proposed by commentators. This thesis proposes that the three major theories concerning the use of force be harmonized to act more in concert to protect individual states and to promote international peace and cooperation.

Application of International Law in Cyber Warfare Operations

In the not-so-distant future, a concerted ‘Cyber Attack’, effectuated via the Internet, could cause massive destruction to any society dependent on computer networks, especially in key target fields of transport, energy supply and communication infrastructures, leading to human casualties and serious destruction of property – reproducing the same, if not more, damage that would be caused by conventional armed attacks. Despite last decade’s abundant legal literature on the subject, not only is a clear and unambiguous international consensus regarding the legal status of Cyber Warfare Operations hitherto nonexistent, but also the views of international law scholars present a peculiarly high level of heterogeneity. Are Cyber Attacks prohibited under the non-use of force doctrine or permitted within the concept of self-defence? Are they even subject to the Law of War? In order to find answers to questions such as the aforementioned, various aspects of International Law will be applied, underlining the need for a reform of notions such as armed conflict, use of force and attack. This paper will attempt to ‘navigate’ through the ‘sea’ of multitudinous and farraginous papers written by lawyers from military, humanitarian and academic backgrounds, by dividing its corpus into the following distinct sections. In the first part, a delineation of the terms Cyberspace and Cyber Warfare Operations will be attempted, coupled with an examination of the various hacking techniques and the typology of potential attacks. Secondly, the jus ad bellum will be applied in Cyber Attacks with the goal of classifying them under the existing ‘costumes’ of ‘use of force’ and/or ‘aggression’. Their relationship with the concept of self-defence will be examined in a two-fold way. Is a Cyber Attack tantamount to an ‘armed attack’, in order to trigger the lawful right of self-defence, according to UN Charter article 51? And vice-versa, is it possible for self-defence to be waged in the form of a Cyber Attack? State responsibility will be subsequently addressed, using as a ‘compass’ the 2001 Draft Articles on State Responsibility and the relative jurisprudence by international tribunals. Thirdly, certain bedrock rules of the jus in bello will be applied in Cyber Attacks, concluding that the cardinal principles of distinction, humanity and proportionality are outdated albeit essential. Lastly, this paper will address the existing international treaty systems in the quest of determining a satisfactory framework under which Cyber Attacks can be regulated. Separate emphasis is to be laid upon on the need for the creation of a jus novum, specifically tailored to modulate this novel and multifaceted method of warfare.

Aiming to Break Will: America's World War II Bombing of German Morale and its Ramifications

Current US Air Force doctrine emphasizes attacking an enemy's ‘will to resist’ without defining ‘will’. Much of the Air Force's focus on will stems from prewar bombing doctrine and America's initial effort to break an enemy's morale with bombs – the aerial assault on Nazi Germany. That bombing revealed that a nation-state's will to resist actually consists of three distinctive elements – the will of its populace, government leaders, and the armed forces – which together form a collective desire to fight. The bombing also showed that the resilience of the individual components depends on the strength of the bonds that connect them and the war aims pursued by all belligerents. It further illustrated that the individual element most likely to break from air attack is the will of the armed forces.

TOGETHER TOWARD NUCLEAR ZERO

To understand the prospects for engaging China and Russia on disarmament, the authors examine views of U.S. strategic policy in Beijing and Moscow, the two countries’ mutual perspectives, and prospects for particular disarmament measures. Through an appraisal of nuclear force postures and doctrines and linkages to missile defense, conventional military capabilities, and possible space weaponization, the authors explain why nuclear disarmament involves strategic considerations writ large, and not simply nuclear weapons and their delivery systems. They analyze Chinese and Russian views of a variety of possible disarmament and arms control measures and relevant strategic considerations. While formal arms reduction negotiations are only likely with Russia in the short term, they note that confidence-building measures could already be instituted that involve China. Finally, they note there exists a small window of opportunity to move cooperatively toward nuclear zero; however, as decisions on military procurement are realized, this window will shrink.

Identity, Politics and Technology in the RAF's History

Click to increase image sizeClick to decrease image size Notes 1. Viscount Trenchard, ‘The Effect of the Rise of Air Power on War’, October 1943, privately printed and distributed, p. 14. 2. Richard J Overy ‘Air Power and the Origins of Deterrence Theory before 1939’, Journal of Strategic Studies, (Vol. 15, No. 1, 1992), pp. 73–101. 3. See for example P Meilinger ‘Trenchard and “Morale Bombing”: the Evolution of a Royal Air Force Doctrine before World War II’, The Journal of Military History (Vol. 60, No. 2, 1996), pp. 243–70. 4. National Archives II, College Park, Maryland, RG18/223, Box 1 RAF War Manual Part I, p. 1. 5. Figures from M Armitage, The Royal Air Force: An Illustrated History (London: Weidenfeld Military, 1993), pp. 277–8. 6. See for example Ian Gooderson, Air Power at the Battlefront: Allied Close Air Support in Europe 1943–45 (London: Routledge, 1998). Additional informationNotes on contributorsRichard OveryRichard Overy is Professor of History at Exeter University. He has written extensively on the Second World War. His book, The Air War 1939–1945, was re-issued in a second edition in 2006

Israel’s Uncertain Strategic Future

Israel's Strategic Future: The Final Report of was completed in mid-January 2003, several months before the start of Operation Iraqi Freedom, and transmitted by hand to then Prime Minister Ariel Sharon. The underlying rationale of Project was the presumption that Israel urgently needs a coherent plan for dealing with existential threats, and that we (The Group) were well-positioned intellectually and professionally to propose such a plan. The project was originally based on an overriding concern for the possible fusion of certain weapons of mass destruction (WMD) capacity with irrational adversaries. Daniel concluded, however, that the primary threats to Israel's physical survival were more likely to come from enemies that were not irrational. With this in mind, the members of our study group proceeded to consider a broad variety of complex issues related to deterrence, defense, preemption, and war-fighting. Combining legal with strategic analyses, The Group linked the concept of anticipatory self-defense to various preemption scenarios and to The National Security Strategy of the United States of America (20 September 2002). The study group also closely examined the prospects for expanded strategic cooperation between Washington and Jerusalem, with particular reference to maintaining Israel's qualitative edge and associated issues of necessary funding. Daniel looked very closely at a recommended paradigm shift to deal with various low intensity and long-range WMD threats to Israel, and also considered the specific circumstances under which Israel should purposefully end its current posture of ambiguity. Overall, The Group urged continuing constructive support to the United States-led Global War On Terrorism and stipulated that Israel combine a strengthening of multilayered active defenses with a credible, secure, and decisive nuclear deterrent. This recognizable retaliatory (second-strike) force is recommended to be fashioned with the capacity to destroy some l0 to 20 high-value targets scattered widely over pertinent enemy states in the Middle East--an objective entirely consistent with our explicit assumption that the main goal of Israel's nuclear forces must always be deterrence ex ante, not revenge ex post. The Group recognized a very basic asymmetry between Israel and the Arab and Iranian world concerning, inter alia, the desirability of peace; the absence of democracy; the acceptability of terror as a legitimate weapon; and the overwhelming demographic advantage of the Arab/Iran world. With this in mind, Daniel concluded that non-conventional exchanges between Israel and adversary states must always be scrupulously avoided and that Israel must do whatever is needed to maintain its conventional supremacy in the region. Facing a growing anarchy in world affairs and an increasing isolation in the world community, Israel is strongly encouraged by members of the study group to incorporate its considered recommendations into codified Israel Defense Force doctrine, and to systematically expand Israeli strategic studies into a more disciplined field of inquiry. In the end, Israel's survival will depend largely upon policies of its own making, and these policies will be best-informed by The Group's proposed steps regarding deterrence, defense, war-fighting, and preemption options. Today, with a steadily advancing nuclear threat from Iran, the preemption option has likely become even more compelling. At the same time, the enormous operational difficulties that would be associated with preemptive destruction of pertinent Iranian nuclear infrastructures suggest that Israel may ultimately have to rely instead upon expanded and improved nuclear deterrence, it is almost certainly such thinking that occasioned Prime Minister Ehud Olmert's public remarks about Israel's nuclear capacity on 11 December 2006. These remarks were assuredly not a slip of the tongue, as was reported widely in the media. …

DERIVATIVE WARS

DERIVATIVE WARS