Journal of Conflict and Security Law - current issue

Editorial

Myjer, E., White, N. — 2009-04-14

Security Council Resolution 1540 to Combat WMD Terrorism: Effectiveness and Legitimacy in International Legislation

Asada, M. — 2009-04-14

Faced with the urgent and grave threat of WMD terrorism, the international community has responded with a new approach of international legislation by adopting Security Council Resolution 1540. The traditional approach of multilateral treaties on WMD has primarily been aimed at the prevention of proliferation of such weapons to states and not to non-state actors. Another traditional approach of utilising anti-terrorism treaties has been a sort of patchwork, and thus provides no guarantee that a new treaty is made in a timely manner in response to a newly emerging type of terrorism. By contrast, the new approach of international legislation through Council resolutions makes it possible to enact rules that legally bind all UN members immediately and automatically without exception and are equivalent to those in a treaty instantly ratified by all UN members. Indeed, a new thinking is necessary to effectively respond to a new, urgent and grave threat to the international community. In that sense, Resolution 1540 is welcome. This does not, however, mean that everything is allowed if it is effective to deal with the present or imminent threat. Not only from the viewpoint of legitimacy, which guarantees the long-standing effectiveness, but also from that of the rule of law in the international community, it seems of fundamental importance to establish some kind of understanding that we discuss in this article, if international legislation by the Security Council is destined to become inevitable in the future and is to be better implemented.

The Definition of the Crime of Aggression for the Purpose of the International Criminal Court: Problems and Perspectives

Sayapin, S. — 2009-04-14

The definition of the crime of aggression for the purpose of the Rome Statute of the International Criminal Court (ICC) remains a key issue of contemporary international criminal law. The work accomplished to date by the Preparatory Commission for the ICC and the Special Working Group on the Crime of Aggression has resulted in promising draft amendments to the Rome Statute, which defines the crime on the basis of relevant international law sources and suggests workable mechanisms of interaction between the Court and the United Nations Security Council. This article examines the draft amendments in a critical way and recommends substantial and procedural improvements. In particular, the respective roles of the International Court of Justice and the United Nations General Assembly for the determination of acts of aggression are reconsidered, and a more ‘measurable’ definition of the crime of aggression is proposed. It is suggested that the new rules of the Rome Statute, if duly recognized, should affect the practice of both the International Criminal Court and the Security Council, as well as of other relevant principal organs of the United Nations, such as the International Court of Justice.

The European Union Status of Forces Agreement (EU SOFA)

Sari, A. — 2009-04-14

This article offers an overview of the main jurisdictional provisions of the EU Status of Forces Agreement (EU SOFA) of 2003. The EU SOFA was signed by the representatives of the governments of the member states of the EU on 17 November 2003 and its purpose is to define the legal position of the military and civilian personnel, as well as the forces and headquarters, deployed by one EU member state in the territory of another member state in the context of the European Security and Defence Policy (ESDP). The EU SOFA makes an important contribution to the development of the EU's crisis management capabilities. By addressing some of the key legal and practical questions raised by the presence of European military and civilian personnel in the territory of other EU member states, the Agreement facilitates their transit and temporary deployment throughout the territory of the EU for the purposes of the ESDP. The EU SOFA is based on the NATO Status of Forces Agreement (NATO) of 1951. As such, it confirms the pre-eminent position of the NATO SOFA as a model for multilateral status of forces agreements governing the legal position of visiting forces deployed among politically equal partners.

Defining Armed Conflict

O'Connell, M. E. — 2009-04-14

Within hours of the 9/11 attacks in the United States, President George W. Bush declared ‘a global war on terrorism’. Experts around the world assumed this declaration was a rallying cry, a rhetorical device to galvanise the nation to serious action. By November 2001, however, the evidence began to mount that the President was ordering actions that could only be lawful in a de jure armed conflict: targeting to kill without warning, indefinite detention without trial and search and seizure on the high seas without consent. It was difficult to criticise these actions on the basis of international law, however, given that international law contained no widely accepted definition of armed conflict. By May 2005, the International Law Association (ILA) determined that there was a pressing need for a report on the meaning of armed conflict supported by international law. The Use of Force Committee presented its Initial Report on the Meaning of Armed Conflict in International Law at the Rio de Janeiro biennial meeting of the ILA in August 2008. The Report concludes that all armed conflicts have as a minimum of two necessary characteristics: (1) the presence of organized groups that are (2) engaged in intense armed fighting. The Report indicates that while the United States has been engaged in an armed conflict in Afghanistan and in Iraq since 9/11, the US has not been engaged in a global armed conflict. The Initial Report will be expanded for presentation in final form in 2010 at The Hague biennial meeting.

Regulating Private Military and Security Companies: The Content, Negotiation, Weaknesses and Promise of the Montreux Document

Cockayne, J. — 2009-04-14

On 17 September 2008, 17 states including the United States, UK, China, France, Iraq, Afghanistan, Sierra Leone and South Africa endorsed the ‘Montreux Document’ affirming the legal obligations and describing good practices for states related to operations of private military and security companies during armed conflict. This article provides an insider's view of the 3 years of negotiation of the Montreux Document, provides an overview of its provisions and their significance, and explores the relationship between its provisions and existing law and emerging business and human rights frameworks. Finally, it explores whether the Montreux Document may provide the basis for improved standards and accountability in the activities of private military and security companies.

Private Military and Security Companies and the UN Working Group on the Use of Mercenaries

del Prado, J. L. G. — 2009-04-14

The Working Group on Mercenaries, one of the special procedures of the UN Human Rights Council, has been entrusted to monitor the impact of the activities of private military and security companies (PMSCs) on the enjoyment of human rights and to prepare draft international basic principles that encourage respect for human rights on the part of those companies. The number of private security and military companies which operate domestically and internationally is increasing due largely to the outsourcing of governmental functions. They have been operating without proper supervision and accountability in countries with ongoing conflicts, such as Afghanistan, Colombia and Iraq. They recruit former policemen and soldiers from developing countries as ‘security guards’, but in fact they are ‘militarily armed private soldiers’, or mercenaries. Employees of PMSCs have committed serious human rights violations, but have also been subject to abuse by their employers. Member states of the United Nations should identify those military and security functions that cannot be privatised, contracted out or ‘outsourced’ and should remain a prerogative of the state. New international regulations, most likely in the form of a new UN Convention with an accompanying Model Law, are needed in order to bring PMSCs fully out of the legal ‘grey zone’ in which they have been operating.

Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict: Montreux 17 September 2008

2009-04-14

Mark A. Drumbl, Atrocity, Punishment and International Law

Burchill, R. — 2009-04-14