International Law Of War Research Articles

Protection of Civilian Victims of Armed Conflict Based on International Law (Case Study of the Israeli and Palestinian Conflict)

International armed conflict is defined as a conflict between two or more states or between one state and another party that does not yet have state status. In the world of international law, the Geneva Conventions have been considered the right decision because the results of the convention have been agreed and signed by countries that have been recognized by the United Nations. The essence of the convention is an agreement that protects the safety of military members wounded during the war. In the application of the results of the Geneva Conventions and international human rights law is still not fully applicable. An alliance of countries that gives full support to the Israeli-Palestinian war causes legal defects. The conflict between the two countries has been going on since the early 20th century until now. The Israeli-Palestinian armed conflict is slowly attacking civilians as well. This research is a normative research, which is used to see problems related to armed conflict through legal studies. When viewed from the point of view of the basic state and the principles of the International Law of War, the Israeli-Palestinian war does not follow the existing rules. Several international rules already exist to deal with similar cases, which provide rules and protection. The United Nations here serves to maintain world peace from conflicts between countries.

Animal Warfare Law and the Need for an Animal Law of Peace: A Comparative Reconstruction

Abstract This Article puts forward a novel analogy between animal welfare law and international humanitarian law—two seemingly unrelated bodies of law that are both marked by the aporia of humanizing the inhumane. Through the comparative lens of the international laws of war and peace, this Article argues that existing animal welfare law is best understood as a kind of warfare law that regulates violent activities within an ongoing “war on animals.” It further submits that this animal warfare law needs to be complemented and counterbalanced by an animal law of peace, consisting of a jus animalis contra bellum and peacetime animal rights.

Rites of Retaliation: Civilization, Soldiers, and Campaigns in the American Civil War by Lorien Foote

Reviewed by: Rites of Retaliation: Civilization, Soldiers, and Campaigns in the American Civil War by Lorien Foote Clayton J. Butler (bio) Rites of Retaliation: Civilization, Soldiers, and Campaigns in the American Civil War. By Lorien Foote. (Chapel Hill: University of North Carolina Press, 2021. Pp. 312. Cloth, $95.00; paper, $22.95.) Adapted lectures often make for great books. Faced with the presence of a very real audience, the author has an added impetus to deliver a compelling story and a convincing argument. Derived from a series of Brose Lectures given at Penn State University in 2019, Lorien Foote’s new monograph certainly achieves both goals. Foote makes a strong case that during the Civil War the development of military policies of retaliation—officially sanctioned penalties imposed by one belligerent on the other for going beyond the brink of what it considered “civilized” warfare—had a marked impact on the nature of combat, the experiences of prisoners, and the outcome of the conflict itself. Foote contends that the Civil War represented a contest in which both sides saw nothing less than civilization itself at stake and that both sides used the threat of retaliation to assert the vision of civilization for which they fought. They were, in effect, setting the rules of the game. Though recent works, such as Aaron Sheehan-Dean’s Calculus of [End Page 258] Violence: How Americans Fought the Civil War (2018) and D. H. Dilbeck’s A More Civil War: How the Union Waged a Just War (2016), have investigated the Civil War in the context of international laws of war and just-war philosophy, both engaging incidents of retaliation, Foote’s argument that retaliation served as a legitimate and widely sanctioned method of directly influencing conduct in the field sets her book apart. Foote situates her study in the Department of the South, comprising the coastal areas of South Carolina, Georgia, and Florida, which became the site of intense controversy over the deployment of Black troops, mis-treatment of prisoners, and the summary execution of combatants during the war. Two starkly divergent visions of civilization and civilized society promptly collided there, visions that cut to the heart of the sectional conflict. Proceeding chronologically, Foote’s narrative benefits from the early introduction of several dynamic and articulate figures, including Thomas Wentworth Higginson, Robert Gould Shaw, Ethan Allen Hitchcock, and David Hunter. Hunter’s unhesitating organization and deployment of Black troops, almost from the outset of his tenure in command of the department, initiated a showdown between seemingly irreconcilable Union and Confederate policies. Confederates saw Hunter’s actions as tantamount to leadership of a slave rebellion, a barbaric act aimed at the destruction of southern civilization. Hunter saw the practice of enslavement, for all intents and purposes the Confederate raison d’être, as itself barbaric and the antithesis of civilized ways. Indeed, these clashing conceptions of civilization hold the key to understanding how nonslaveholding southerners and nonabolitionist northerners found the motivation to fight in the first place. Nonslaveholding Confederates fought to protect southern civilization as they understood it, which they perceived as gravely menaced by the so-called Black Republican administration. Nonabolitionist northerners fought for a civilization of free labor undergirded by the Union, even if that vision paid little to no heed to Black Americans’ rights. Foote rightly notes that once one begins to look for the language of “civilization” in the parlance of the Civil War era, it becomes ubiquitous. The debate over the Union’s use of Black troops offers Foote her best example of how military leadership turned to policies of retaliation to influence the direction of the fighting. Jefferson Davis, she writes, “was convinced he could shape Federal policies through the threat of retaliation” (43). Confederates proposed to reenslave or execute the Black soldiers they encountered in battle. It seemed to them an eminently justifiable position. The only thing that ultimately gave them pause was the prospect of retaliation. The thought that Confederate prisoners might suffer the same fate as Black soldiers forced them to reconsider their policy and generally, though [End Page 259] by no means in every case, stayed their hand. By treating Black soldiers as equals in the...

The International Laws of War: Linguistic Analysis from the Perspectives of Register, Corpus and Grammatical Patterning

Abstract All texts, including all legal texts, are constructed in language. All legal constructs and discriminations are an effect of language. As such, linguistics and text analysis should be considered a necessary adjunct to legal studies and, in particular, to critical legal studies. While the disciplines of linguistics and law are increasingly interacting, there is a paucity of linguistic analysis in the field of the international laws of war. This paper seeks to open doors to collaboration, by viewing the texts of the international laws of war from three linguistic perspectives: as a ‘register’, as a ‘corpus’, and in terms of their lexicogrammatical patterning. In terms of register, the international laws of war herald a new form of textual practice, the function and effects of which are subject to debate. As a corpus, some dominant lexical habits of these texts are explored and interpreted for their ideological implications and reactances. Finally, an examination of covert lexicogrammatical meanings in this register, via a small extract from Article 8 of the Rome Statute, illuminates the contradictory meanings that these texts navigate. These three perspectives offer a preliminary glimpse into the value of linguistic analysis for critical perspectives on the international laws of war.

Conflict between Yugoslavia and the International Committee of the Red Cross in the aftermath of the Second World War

The International Committee of the Red Cross from Geneva and its activities in the circumstances of the Second World War has been exclusively humanitarian, and the ICRC based it on the then applicable provisions and regulations of the International Law of War (the Law of Armed Conflict). In the aftermath of the Second World War, sporadic allegations began to arise on the ICRC's activities in the war’s circumstances, from 1939 to 1945. These allegations focused in particular on the ICRC's relations with the Authorities of the German Reich, and on the ICRC's activities in favor of the Jews during the war. Initially, the ICRC and its leadership has been facing sporadic accusations from various organizations or individuals, as well as accusations from the Union of Soviet Socialist Republics (USSR), that had no official relations with the ICRC, and shown open hostilities towards the ICRC in the aftermath of the Second World War. In mid-1946, the representatives of Yugoslav authorities accused the ICRC of protecting collaborators and war criminals and further aggravated the situation. The reason for the outbreak of the conflict was the issue of displaced persons, among other. The Yugoslav Red Cross started the conflict that continued through the official Yugoslav press, with the support of the Yugoslav authorities. Soon, both the Yugoslav Red Cross and the Yugoslav authorities extended their allegations towards the ICRC to the entire ICRC’s activities carried out during the war. Based on original archival sources, published sources and literature, the author presents the genesis of the conflict.

International Law of War, War Crimes in Ethiopia, and Italy's Imperial Misrecollection at the End of Empire, 1946–1950

AbstractThe article explores the post-1945 discourse around Italian war crimes committed in Ethiopia from 1935 to 1942. Although Italians largely escaped prosecutions after the Second World War, the article demonstrates how an international controversy – the appointment and dismissal of a former general of the Italian army as governor of Somalia in 1949 – forced a reappraisal of Italy's imperial, fascist, and wartime past. Exploring this discourse is important for three reasons. First, it shows that, contrary to long-held assumptions, questions related to war crimes and empire were part of Italy's public debate after 1945. Second, it challenges the notion of national forgetting of the imperial past in post-war Italy. Third, it helps us better understand the multiple and subtle connections between empire and international legal order in the interwar and the early post-war period. It shows that arguments based on race, which drew heavily on fascist rhetoric and were made within rather than outside the law, served to justify violations of international legal conventions before similar issues were raised during the wars of decolonization of the 1950s and 1960s.

ESSENTIAL FEATURES AND FUNCTIONAL COMPONENTS OF MODERN UNCONVENTIONAL (HYBRID) CONFLICT

In the article the authors argue that the strategy and arsenal of hybrid (asymmetrical, unconventional) warfare in the contemporary world are fundamentally based on the qualitative changes that took place at the turn of the XXI century as a result of radical changes in the balance of power in the international arena, chaos in international relations, the development of new types of lethal and non-lethal weapons, new technologies of constructing and dismantling social communities with predetermined characteristics. These changes involved the conceptual framework, structure, strategy and tactics, forms and methods of the military and political confrontation between modern states and their blocks, as well as between states and non-governmental organisations.
 The authors identify the essential features and functional components of hybrid warfare, such as its latency phases; the remote undermining of national defense capabilities by non-military and non-contact means; breaching the international law of war; the integrated use of military methods as well as specific means of non-military, diplomatic, financial and economic, humanitarian pressure on a victim state. They also include the extensive use of anti-government groups and movements; illegal armed groups, separatists, irredentists, radical ethnic and religious groups, extremist organizations, and artificially constructed destructive groups; the privileged role of intelligence services, special operations forces and their use for engineering a powerful anti-government infrastructure designed to destabilize the legitimate state system; the priority role of targeted influence on public opinion through the extensive use of methods of information and psychological warfare and cyberwarfare.

War Crime Clemency: The President's Self-Defeating Pardon

A president’s long-recognized discretion to pardon just about any offense for literally any reason at almost any time leaves little room to argue that such power can be constrained any further by law. Supreme Court decisions, scholarship, and presidential precedent over the last two centuries amply (though grudgingly) support a theory of nearly unilateral and “unfettered” authority, perhaps a last vestige of the British monarchy left in the hands of a democratically accountable chief executive – controversial, but nevertheless constitutional. But when it comes to a specific class of misconduct – war crimes – interpreting and applying this constitutional power requires a second look, for it invariably intersects with another Article II power – a president’s role and authority as the military’s commander-in-chief. Rather than amplifying this other long-recognized discretionary power to wage war, the pardon power arguably weakens it under certain conditions. This intersection is not merely an academic puzzle on the nature of presidential power; it is a collision of a president’s right with a series of quite specific presidential responsibilities and authorities over the military’s criminal justice system he has only because Congress believes that a commander-in-chief should wield them. The collateral damage from this collision ironically harms the very institution and profession the president relies on for military action, advice, and ability. Whether this damage is historically contingent on particular presidents or is a predictable consequence of all such pardons is a question that cannot be answered yet. That is because President Trump’s three war crime pardons in 2019 were historic firsts: never before had a president pardoned any soldier for conduct incidental to combat action that violently victimized a non-combatant who was otherwise protected by the international laws of war from unlawful armed force. They were a proof of concept that a president could indeed “go there;” but they were also a proof of consequences not yet fully explored in the literature and not at all by the courts. In exercising his singular strength by pardoning war crimes, a president’s power and credibility is paradoxically weakened for three reasons: he ignores or rejects the duties imposed on the very institution he relies on to achieve political objectives through armed force; he devalues the professional expertise of his military agents; and he delegitimizes the military criminal justice system that this institution relies on to promote, enforce, and signal its professional commitments to certain martial values, norms, and requirements – including adhering to the laws of war. Flexing muscle on one arm atrophies muscle on the other. The contrary view is that constitutionally required civilian control of the armed forces means his discretion to flex or atrophy his credibility with the military whenever he wants. Trump’s war crime pardons offer an opportunity to explore whether common arguments and conventional applications of the pardon power are entirely relevant to this class of offenses and this kind of offender. This article suggests, because they lead to a self-defeating paradox (the collision between two independent and stout express Article II powers), that they are categorically distinct; it sketches this new prudential argument for curtailing war crime pardons based on a president’s “standing” or relationship he necessarily bears to the military as its commander-in-chief and to the conduct he absolves. Any future case for judicially invalidating such a pardon, for legislating a containment strategy to (at least) deter such a pardon, or for adopting a set of principles for presidential self-restraint, must account for this challenge.

Comparing Islamic and International Laws of War: Orthodoxy, “Heresy,” and Secularization in the Category of Civilians

Abstract This Article investigates how contemporary laws of war rationalize civilian deaths. I concentrate on two specific legal constructions in warfare: the definition of civilian/combatant and the principle of distinction. (The categories of civilian and combatant should be understood as dialogically constitutive and not entirely distinct. In addition, the category of “civilian” is a modern one and premodern legal sources often do not use one term to refer to noncombatants.) I focus on two significant parties in contemporary warfare: al-Qāʿidah (aka Al-Qaeda) and the U.S. military. Al-Qāʿidah diverges from orthodox Islamic law on these two legal issues, while remaining within the Islamic legal tradition. To scrutinize the nature of this divergence, I compare al-Qāʿidah’s legal reasoning to the legal reasoning of the U.S. military. I demonstrate that the U.S. military diverges from orthodox international law in ways that parallel how al-Qāʿidah diverges from orthodox Islamic law. Specifically, both the U.S. military and al-Qāʿidah elide orthodox categories of civilians and expand the category of combatant, primarily by rendering civilians as probable combatants. Based on this comparative analysis, I argue that the legal reasoning of al-Qāʿidah (and other militant Islamist groups) is as secular as it is Islamic; I call this fusion secularislamized law.

On Scripts and Sensibility: Cold War International Law and Revolutionary Caribbean Subjects

AbstractThrough a literary-theatrical reading of international legality, this Article challenges the “settled script” produced by international legal scholars to frame and assess the legality of two historical events—the Grenada Revolution (1979–1983) and the U.S. Invasion of Grenada (1983). It does so by reading the Cold War as a sensibility performed by these scholars, one that recognized the operation of rival international legal orders and one that crafted a different script—Cold War Customary Law (“CWCL”)—to decide questions of international legality in a Cold War context. In addition to offering a new way to read the Cold War and international legality, this Article argues first that it is important to uncover this parallel and competing script of international legality operating at the time, and not dismiss it as unrelated political or ideological discourse, as it clearly influenced the interpretive logic and reasoning practices international lawyers deployed to frame what constituted legality in international law. Second, it argues that this Cold War sensibility in international legal scholarship on intervention and revolution predated the events in Grenada, and that if a different theatrical mise en scène is adopted—one which eschews “the short durée” or “evental history” of the settled script—this sensibility can be understood as being both continuous and discontinuous with rival imperial forms of international law operating in the Caribbean across time and place, where its discontinuities open up space to recover revolutionary Caribbean subjects of international law and a sensibility of shame in the present.

The concept of “law enforcement” in the context of the International Law of War

The concept of “law enforcement” in the context of the International Law of War

Targeting Decisions and Consequences for Civilians in the Colombian Civil Strife

Although the intentional and indiscriminate targeting of civilians is extremely common in non-international armed conflicts by national armed forces and irregular militias alike, it is now commonly represented that all or nearly all of the international laws of war – including the rule of proportionality – apply with equal vigor and scope to internal conflicts. Yet, these conclusions have little evidentiary foundation. In the absence of specific targeting rules in a treaty relating to non-international armed conflicts, the only source for more detailed guidance under international law would be customary international law. For a practice to become binding international custom, it must be sufficiently longstanding, consistent, and universal. The practice must also be accompanied by the belief that it is mandated by international law (opinio iuris sive necessitatis), as opposed to being merely optional or advisable. Better evidence is needed of whether the laws of war are aligned with state practice in non-international conflicts. In pursuit of this evidence, we have chosen to examine one specific aspect of the laws of war - the doctrine of proportionality. We are engaged in a multinational study of state customary practice of proportionality since 1945. As traditionally understood, proportionality requires military commanders to consider whether striking a given target is “expected to cause incidental loss of life, injury to civilians, damage to civilian objections or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” The study will examine how the principle has played out - specifically, the role it plays in targeting and planning decisions as well as state responses to obvious violations of the rule - in many armed conflicts in many countries. To better understand state practice, we are using a methodology designed to gather empirical information beyond official governmental and NGO publications and news reports. Our goal for the present chapter is to examine state practice in applying this proportionality doctrine in the civil strife between the Colombian government and two armed subversive groups - the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN) - from 1982 to present. This vicious and bloody war, waged since 1982 and ongoing today, is notable for the large number of intentional civilian deaths and property damage, but it also involves numerous incidents of allegedly indiscriminate or disproportionate attacks resulting in accidental but avoidable civilian casualties and property damage. In the end, we sought to determine, in part, whether the practice of Colombia in its war with the FARC confirms that proportionality has a customary law meaning either consistent with or divergent from traditional understandings in international conflicts. By examining incidents from this conflict it is at least possible to gain insight into the role that proportionality considerations play in targeting decisions made by the Colombian military.

Lawless Wars of Empire? The International Law of War in the Philippines, 1898–1903

Writing for his fellow military officers in early 1903, United States Army Major C.J. Crane reflected on the recent Philippine–American War. The bloody struggle to suppress an insurgency in the Philippines after the United States had annexed them from Spain in 1899 had officially concluded the previous July. The war had been accompanied by fierce racist sentiments among Americans, and in keeping with these, Crane described his foes as “the most treacherous people in the world.” But Crane's discussion drew as much on concepts of law as it did on race. The average American officer, Crane argued, had “remembered all the time that he was struggling with an enemy who was not entitled to the privileges usually granted prisoners of war,” and could be summarily executed, without benefit of “court-martial or other regular tribunal.” If anything, the Americans had been too generous. “Many [American] participants in the struggle,” he maintained, “have failed to fully understand that we were practically fighting an Asiatic nation in arms and almost every man a soldier in disguise and a violator” of the laws of war. But what did those laws mean to the United States during the conflict, and what does this indicate about the broader history of international law's relationship to empire?

Law of War Precautions: A Cautionary Note

While the humanitarian benefits of precautions undertaken to protect civilians during attacks are readily apparent, the operational and legal costs of precautions in the attack are less acknowledged. This paper traces the nearly simultaneous growth of modern military information technology and law-of-war precautions. It showcases an array of benefits and costs of advances in military information technology and highlights under appreciated but persistent obstacles to situational awareness and decision making in military operations. It then traces the development by States, and the expansion and refinement by private commentators, of an international legal obligation to take humanitarian precautions in attacks. Finally, it identifies operational costs associated with precautions as free-standing international legal obligations. This paper advises, in light of enforcement competencies and informational realities, that States reexamine precautions and temper public expectations concerning States’ willingness and ability to undertake humanitarian precautions as they consider future development of the international law of war.

Speculation; or, Living in the Face of the Intolerable

Speculation; or, Living in the Face of the Intolerable

The Long Road towards Justice in Syria: Challenges and Perspectives on War Crimes

This paper will attempt to analyze the prospects and pitfalls of bringing perpetrators to account in Syria. Considering the abundance of evidence that corroborates, beyond doubt, the culprit’s atrocities, there seems a hope for prosecution either by employing the universal jurisdiction principles, or through the establishment of ad hoc tribunals. In addition, a referral to the ICC and domestic Syrian courts, albeit far-fetched, are possible avenues not only to render justice but also to restore victim’s faith on international law and institutions. The pervasive climate of impunity and the grave nature of the abuse warrant such effort to bring the Assad regime to justice. Perhaps the paper acknowledges the limitations associated with the International Laws of War and other statuary (treaty based) conventions that will come to play. With this goal in mind, the paper is divided into three parts. The first section examines the nature and various dimensions of the war. It is, in short, a concise introduction on the background of the conflict and a search for “taxonomy” under the International Law of Armed Conflict (hereafter LOAC), if there is any. In part two a discussion on the crisis and mayhem will be made in light of war crimes. By making reference to the fundamental elements under the Rome Statute, this section will investigate war crimes that are committed in Syria. The last section will put in perspective the promises and pitfalls associated with holding perpetrators accountable to their actions. Relevant issues of proof including but not limited to elements, instrumentalities and evidences of the offenses, their veracity and accessibility is briefly appraised. Extensive discussion is also made on the prospects for accountability for the crimes, the potential mechanisms available, together with the challenges associated with this “higher road” approach to justice.

Hadifoglyok és a Nagy Háború

The study presents the evolution of the international laws of war, focusing especially on the Geneva and Hague Conventions, which were the first multilateral treaties that addressed the conduct of warfare. Furthermore, I attempt to answer the question of why men kept fighting, why they didn’t choose surrender instead. I also deal with the moment of capture, and the legislations regarding prisoners of war in Austria–Hungary. I also expound on introducing the situations in the austro–hungarian POW camps. Furthermore, the study depicts in detail the economic capability of the state after the outbreak of the Great War.

Shadowboxing: The Data Shadows of Cold War International Law

That states have come to be represented in “data shadows” for international legal purposes – that is, that state populations’ condition may be gleaned from remotely sensed data to overcome deficiencies in official government statistics – is today identified with digital innovation. “Data shadows” were, however, crucial features of Cold War international law. Cold War decision-makers were captivated by the prognostications and intimations of “sigint” (signals intelligence). International legal order came to be marked, during the Cold War, by the latent or virtual agency of states’ sigint data shadows in ways that leave an enduring legacy today.

Transnational Self-Defense and Liberal Values: Replacing Law with Flawed Policy in the 'Obama Doctrine'

In December 2016, the Obama administration released a Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations (Report). Its purpose was to “enhance the public’s understanding of the legal and policy principles that have guided U.S. national security operations”. The Report outlines the administration’s view of international and domestic law regulating the resort to, and use of, armed force against non-state armed groups in the territory of other nations, here called “transnational self-defense.” In a personal foreword, President Obama claimed that the Report “reinforce[s] the fact that we defend our interests at home and around the world in a manner consistent with the laws, values, and traditions that are the source of our greatest strength.” In this chapter I argue that the Report and related 2013 Presidential Policy Guidance (PPG), which I collectively label the “Obama doctrine,” are inconsistent with both international law and fundamental American liberal values in two important ways. First, the Obama doctrine permits the resort to force in preemptive self-defense when not clearly necessary to avert a grave threat of impending harm. Second, the Report and PPG strongly imply that all uses of force in transnational self-defense occur within the context of armed conflict regulated by international laws of war. This adoption of an armed-conflict paradigm for all acts of transnational self-defense is erroneous in some contexts: not all violence between states and non-state actors creates or occurs within an armed conflict to which the laws of war apply. Relatedly, the Report extends its law of war paradigm to attacks against all “associated forces” of a non-state group without precisely outlining a legal and factual basis for doing so. When combined, these errors allow for much greater destruction of life and property than is clearly necessary to defend against a relatively specific, certain, impending threat of harm. Respect for international law and American liberal values requires a much more circumscribed and calibrated approach to transnational self-defense.

Uniquely Human: Cultural Norms and Private Acts of Mercy in the War Zone

ABSTRACTWar‐zone mercy—sparing of one's culturally constructed enemies in the midst of organized group violence—is a political act but also a potentially empathically motivated one that has contributed to shared expressive gestures across cultural boundaries and to international laws of war. This article elucidates historical and cross‐cultural norms for war‐zone mercy in order to provide a theoretical framework for scholarly research examining this behavior and offers a case study with systematically collected data about war‐zone mercy during Kenyan pastoralist Samburu experiences of coalitional lethal violence (low‐intensity chronic warfare). As a whole, this article presents evidence from human and nonhuman animal studies that war‐zone mercy is a uniquely human form of empathy‐produced altruism. Humans may be trained or culturally conditioned to kill, and yet widely available historical and cross‐cultural examples of war‐zone mercy underscore the ways in which prosocial emotions like empathy reveal and pervade the human. [war, agency, prosocial emotion, altruism, Kenya]