Journal of Conflict and Security Law - recent issues

A New Architecture for the Non-Proliferation of Nuclear Weapons

Garvey, J. I. — 2008-04-11

The new architecture for the non-proliferation of nuclear weapons proposed here is a mandatory regime under Chapter VII of the United Nations Charter, building upon the current consensual regime, but remedying its deficiencies. This article examines the operation of the Nuclear Non-Proliferation Treaty in relation to current nuclear policy dynamics, explaining why the treaty regime has become increasingly inadequate to meet the proliferation challenge, and even counter-productive. The recent confrontations over nuclear policy with Iran, Saddam Hussein's Iraq and North Korea are drawn upon as illustrations and support for the new architecture's foundation—a Security Council Resolution declaring nuclear weapons proliferation, whether generated by states or non-state actors, a threat to the peace. The new architecture, while integrating key elements of the present non-proliferation framework, would be prescriptive, not merely reactive and ad hoc, the difference arising from its basis in a statement of principle under Chapter VII of the Charter. The article explains how this would engage a design similar to post 9/11 anti-terrorism innovation in the Security Council to achieve a more promising dimension of deterrence, political legitimacy and effectiveness in negotiation of non-proliferation. The new architecture includes the so-called ‘targeted sanctions’, a new tool already proven meritorious for anti-terrorism and counter-proliferation efforts. In conclusion, the article evaluates evidence demonstrating that the necessary political will is available to achieve the proposed new architecture and frames the essential policy choice.

The Arms Trade and States' Duty to Ensure Respect for Humanitarian and Human Rights Law

Brehm, M. — 2008-04-11

The unregulated international trade in conventional arms, especially in small arms and light weapons, has come to be viewed as an exacerbating factor in armed conflict, violent crime and internal repression. Concern about the negative humanitarian, development and security impact of this trade has been growing over the last decade. Against this backdrop, the UN General Assembly invited states in December 2006 to consider the feasibility of an instrument establishing common international standards for conventional arms transfers—also known as the ‘Arms Trade Treaty’ (ATT). The legality of arms transfers has traditionally been treated as a question of arms control law, but in the recent debate about legal restrictions on states’ liberty to transfer arms, norms of international humanitarian and human rights law have frequently been invoked. This article surveys the existing international legal regulation of state-authorised conventional arms transfers, examines how humanitarian law, and in particular states’ duty to ensure respect for humanitarian law, affects the legality of these transfers and shows why human rights law does not make a significant contribution to the legal regulation of the international arms trade today.

The Legal Regime Applicable to Use of Lethal Force When Operating under a United Nations Security Council Chapter VII Mandate Authorising 'All Necessary Means'

McLaughlin, R. — 2008-04-11

This article examines the issue of authorisation to use of lethal force under a UN Security Council Chapter VII ‘all necessary means’ resolution. Because UN-mandated or endorsed forces are regularly confronted by complex operational environments of mixed—often ambiguous—legal nature, it is essential that both the international and domestic legal implications and consequences of the use of lethal force are considered when planning and executing such operations. This is important for a number of reasons—not least among them being the legal protections and certainties that individual UN force members are entitled to expect are correctly reflected in their Rules of Engagement (RoE). Through an examination of the scope of SC Chapter VII powers generally—with particular emphasis on the human rights and IHL dimensions of the use of lethal force—the analysis arrives at the conclusion that there are two ‘use of force paradigms’ governing UN Chapter VII ‘all necessary means’ mandates. The first is the ‘law enforcement’ paradigm, which essentially countenances the use of lethal force within the limitations of self-defence. The second is the ‘armed conflict’ paradigm, where use of lethal force is permitted in wider circumstances. From this point, the article examines which paradigm is at play in a number of specific SC Chapter VII ‘all necessary means’ mandates, noting that the default position appears to be the law enforcement paradigm. The analysis then concludes by arguing that, for individual UN force members, the consequences and implications of this characterisation are ultimately a domestic legal issue, using one particular domestic legal jurisdiction—Australia—as an example.

The Definition of Non-International Armed Conflict in the Rome Statute of the International Criminal Court: An Analysis of the Threshold of Application Contained in Article 8(2)(f)

Cullen, A. — 2008-04-11

This article puts forward an argument for a particular approach to the interpretation of the definition of non-international armed conflict in the Rome Statute of the International Criminal Court. Focusing on the meaning of Article 8(2)(f), it is contended that this provision possesses a threshold of an application equivalent to that of Article 3 common to the four Geneva Conventions of 1949. In supporting this position, the first half of the article analyses the travaux preparatoires of the Rome Statute. Here relevant clauses relating to non-international armed conflict are analysed in order to highlight the threshold of application intended by their drafters. Following on from the travaux preparatoires of the Rome Statute, the second half of the article puts forward an interpretation of the threshold contained in Article 8(2)(f) as one applicable to all situations of non-international armed conflict subject to the court's jurisdiction. Drawing, among other things, on the conventional usage of the term ‘armed conflict not of an international character’ and the customary status of non-international armed conflict provisions in the Rome Statute, an argument is advanced for an understanding of the threshold contained in Article 8(2)(f) as the one identical to that of common Article 3.

The Long and Winding Road Towards an Instrument on Cluster Munitions

van Woudenberg, N. — 2008-04-11

Cluster munition has been used for some decades. The issue of how to keep the cluster munition problem manageable has also been debated for a long time. At present, the establishment of an international instrument on cluster munitions is being discussed in two fora, namely in the context of the Conventional Weapons Convention and in what is known as the ‘Oslo Process’. These discussions, which have intensified following the use of cluster munitions by Israel in southern Lebanon in the summer of 2006, are driven by the impact such munitions can have on the civilian population. Whereas formerly the debate tended to focus on the general problem of the explosive remnants of war (ERW) and current international humanitarian law was fairly generally regarded as adequate, the calls for an instrument specifically designed to deal with the issue of cluster munitions have suddenly become much more insistent since 2006. The article considers various questions. For example, how can the problem of cluster munitions be defined in a nutshell? What are cluster munitions? Is current international humanitarian law inadequate? How are the discussions on ERW in general and cluster munitions in particular being pursued? And why is an international legal instrument now being discussed in two fora? In short, the article is about a long and winding road towards an instrument on cluster munitions, or perhaps two instruments.¹

David Kennedy, Of War and Law

Kalpouzos, I. — 2008-04-11

Eugenia Lopez-Jacoiste Diaz (coord.), La Politica de Seguridad y Defensa en Europa

Odello, M. — 2008-04-11

Overlap and Convergence: The Interaction Between Jus ad Bellum and Jus in Bello

Orakhelashvili, A. — 2007-11-26

The legal regime governing rights and duties of the aggressor state has been extensively debated since Grotius, and has acquired particular importance after the international community outlawed the recourse to force. Although it is often assumed that the legality of war is irrelevant for the regulation of rights during the armed conflict, state practice, jurisprudence and doctrine have consistently developed the thesis that if the prohibition of the use of force is to be meaningful, the aggressor state shall not be able to claim rights and benefits potentially arising from its commission of the act of aggression. This contribution analyses the conceptual foundations of this argument and its standing within the legal framework. After this, the feasibility of the determination of the aggressor in international conflicts is addressed. At the final stage, this contribution addresses some specific dimensions of aggressor discrimination, in terms of the law of occupation, law of neutrality and the potential response by national courts, notably by reference to public policy and the act of state doctrine.

The Israeli Military Court System In The West Bank And Gaza

Cavanaugh, K. — 2007-11-26

The ‘war on terror’ narrative has wedged a legal lacuna between a rights-based and terrorism discourse. Within this ‘rights-free zone,’ the Military Commissions Act of 2006 was signed into law by US President George W. Bush in October 2006. Whilst the act is consistent with current US policy (and narrative), opponents argue that it places the US outside of existing liberal democratic state practice, and challenge both the efficacy, as well as legality of placing the ‘war on terror’ within an IHL framework (with the use of Military Commissions). Yet a review of the case of Israel and the Occupied Territories suggests that, even within an ostensibly liberal, democratic framework, the practice (and the accompanying discourse) is hardly new. Against this backdrop, this article will explore the operation of the Military Court system in the Occupied Territories, examining its legal basis and the impact of the military administration on the criminal justice process. When interrogating the operation the Israeli Military Court system through the lens of international legal norms, this article argues that a lacuna exists between Court practices and international legal requirements.

The Right to Challenge the Lawfulness of Detention: An International Perspective on US Detention of Suspected Terrorists

de Londras, F. — 2007-11-26

The attacks on the World Trade Centre and the Pentagon on 11th September 2001 ushered in the ‘War on Terrorism’; a hotly contested security paradigm in which the United States, in particular, has adopted controversial techniques in order to counter terrorism-related violence. One such technique is the protracted detention of suspected terrorists and governmental assertions that these detainees have no attendant rights to challenge the lawfulness of their detention by means of habeas corpus or adequate alternative. At every step, the United States Executive and Congress have designed laws by reference to perceived capacities in domestic law, and without reference to the deeply entrenched international standards on the right to challenge the lawfulness of detention. This article outlines and considers those international standards and argues that these standards, as applied by international law in a time of ‘emergency’ or other strain, would be an appropriate and effective framework on which to build a detention policy that furthered security without unnecessarily and disproportionately violating individual rights.

The Necessity of a Role for the ECOSOC in the Maintenance of International Peace and Security

Breen, C. — 2007-11-26

The maintenance of international peace and security and the promotion and protection of human rights are two of the objectives of the United Nations enshrined in the Charter. These objectives have existed largely side by side and the contributing role of human rights violations to conflict creation as well as the significance of their protection to securing conflict resolution has been somewhat overlooked. In this article, particular focus is placed upon the Economic and Social Council (ECOSOC) given that it is the UN body from which much of that organisation's human rights standards have emanated. However, human rights are also forming an ever-increasing aspect of Security Council deliberations on the maintenance of international peace and security. Recent humanitarian interventions demonstrate that the Security Council has a mandate to act in the face of massive human rights violations, and such interventions have been justified on the basis that such violations constitute a threat to international peace and security.

This article provides an overview of the relationship between the Security Council and the ECOSOC. This article highlights and analyses the growing input of the ECOSOC into the Security Council deliberations with regard to the latter's mandate of peace and security. It concludes with the assertion that there is need for continued, if not greater, dialogue between the Security Council and the ECOSOC. In particular, it argues that Article 65 of the Charter ought to constitute the primary mechanism of communication between the ECOSOC and the Security Council. Such revitalisation is necessary in order to reflect the increased interrelationship between human rights and peace and security.

The Legal, Military and Political Consequences of the 'Coalition of the Willing' Approach to UN Military Enforcement Action

Wilson, G. — 2007-11-26

The UN Charter envisaged a centralised system of collective security in which the UN Security Council would have readily available forces of its own for the purpose of taking military enforcement action under its own authority and control. These forces were never created and the Security Council has had to rely heavily upon authorising willing coalitions of states to take action on its behalf. Although such an approach to military enforcement action is legally permissible, it gives rise to a series of consequences of a legal, military and political nature that call into question the extent to which it provides the Council with an effective means of exercising its primary responsibility for the maintenance of international peace and security. This article considers these consequences of the ‘coalition of the willing’ approach to military enforcement action, and seeks to show that its utility will vary from one situation to another. Although difficulties can arise from operations being subjected to insufficient levels of ultimate legal oversight by the Security Council, or through military operational problems, the limitations of the ‘coalition of the willing’ as an effective tool of the Council are likely to lie primarily in the political sphere.

Tal Becker, Terrorism and the State: Rethinking the Rules of State Responsibility

Barnidge, R. P. — 2007-11-26

Hans Blix, Disarming Iraq

May, C. — 2007-11-26

Nicole Deller, Arjun Makhijani, and John Burroughs (eds.), Rule of Power or Rule of Law? An Assessment of US Policies and Actions Regarding Security-Related Treaties

Mower, P. — 2007-11-26

Maritime Interdiction of Weapons of Mass Destruction

Guilfoyle, D. — 2007-06-08

This article examines current multilateral and bilateral efforts to interdict the maritime transport of weapons of mass destruction (WMD), their delivery systems and related ‘precursors’ used in their construction. The US-led Proliferation Security Initiative (PSI) has focused international attention on the proliferation of WMD, including proliferation by maritime transport. While the PSI's Statement of Interdiction Principles focuses on existing bases of jurisdiction under domestic and international law, the interdiction framework within which it operates has now been broadened. New legal bases for maritime WMD interdiction include US bilateral shipboarding agreements, the 2005 Protocol to the Suppression of Unlawful Acts Against the Safety of Maritime Navigation Convention and, potentially, UN Security Council Resolution 1540 if it affects the law of the territorial sea. Starting from a consideration of the existing framework of maritime jurisdiction, this article examines the history and likely effectiveness of these new measures, including the creation of new crimes of maritime proliferation.

International Community and the Occupation of Iraq

Buchan, R. — 2007-06-08

By situating our analysis of the occupation of Iraq within the changing nature of international relations this article intends to enhance our understanding of why the occupying powers sought so aggressively to reconstruct Iraq upon a liberal democratic basis, particularly since such alterations were manifestly inconsistent with the international law of belligerent occupation. It will be suggested that there has been a progressive yet profound shift in the normative basis of legitimate statehood within the world order. Whilst historically international society regarded all states as legitimate equals, as distinct sovereign entities enjoying absolute legal protection from external interference, in the post-Cold War world order an international community of liberal states has emerged which considers only those states that embrace liberal democracy as legitimate. Motivated by the theory of liberal peace, international community has engaged in a global campaign for the liberal reformation of non-liberal states and it is within this theoretical framework that the occupation of Iraq will be assessed.

Legal, Judicial and Administrative Reforms in Post-Conflict Societies: Beyond the Rule of Law Template

Sannerholm, R. — 2007-06-08

A common position adopted by the international community is that establishing the rule of law after violent internal conflict is an essential prerequisite in the transition from war to peace. In practical terms, this often translates into projects and programmes directed at the criminal justice sector. Rarely is rule of law acknowledged in relation to administrative law, public governance and economic management. This has several negative effects, particularly in societies where public mismanagement, bad economic governance and corruption run high, and especially if one considers these issues as constituting a large part of the reason for state ‘failure’. But, a new trend is now vaguely discernible in the practice of the international actors involved in rebuilding war-shattered societies that gives priority to the rule of law in relation to public sector reform. Liberia provides, in this regard, an illustrative example through the agreement between the Transitional National Government of Liberia and donor agencies, where international experts will have co-signing authority over a number of budgetary issues, and where national judicial institutions will be strengthened in order to combat arbitrary governance and corruption.

Self-defence, Anticipatory Self-defence and Pre-emption: International Law's Response to Terrorism

Shah, N. A. — 2007-06-08

This article makes the distinction between self-defence, anticipatory self-defence and pre-emption. It argues against pre-emption. In the presence of article 39 of the Charter the case for pre-emption is not convincing and the current international legal order can deal effectively with the threat of terrorism. The article argues that certain acts of terrorism may amount to an armed attack, hence necessary and proportionate force may be used after meeting the outlined criteria.

Reforming the UN Security Council in Pursuance of Collective Security

Schrijver, N. — 2007-06-08

In many circles, the most ideal composition of the UN Security Council is a popular subject of discussion, which, by now, could easily be turned into a party game. Such discussions have generated a host of ideas on the most suitable composition of the Council, taking into account geopolitical realities. Notwithstanding all of this, the September 2005 World Summit could only agree to disagree on the issue of Security Council reform as evidenced by the notably vague paragraph requesting the General Assembly to ‘review progress’ on this matter by the end of 2005.¹ This article purports to assess the need for, and modalities of, Security Council reform. Obviously, the most appropriate size and composition of the Security Council depends on its tasks. This issue will be addressed in Section 1. The second section highlights the Charter criteria for the composition of the Council, while the third section reviews the various reform proposals. Lastly, Section 4 discusses some alternative ideas and concludes with some final observations.

Nationalising Kosovo's Ombudsperson

Waters, C. P. M. — 2007-06-08

In February 2006, the United Nations Mission in Kosovo (UNMIK) ‘nationalised’ the Kosovo Ombudsperson. This entailed making the Ombudsperson a Kosovar and removing oversight of UNMIK from the Ombudsperson's jurisdiction. Nationalisation of this, and other Kosovar institutions, has been on the agenda for some time, but the timing and manner of changes to the Ombudsperson's Institution have been controversial. There are two concerns in particular. The first is that in ethnically divided Kosovo, a local citizen may not have the trust of all groups at this time; it may have been premature to appoint a Kosovar. The second concern is that UNMIK now has no authoritative independent accountability mechanism – in other words, who now ‘guards the guardians’ in Kosovo? These concerns have implications not only for Kosovo but for peace support operations generally.

Peter Rowe, The Impact of Human Rights Law on Armed Forces

Rubin, G. — 2007-06-08

Michael Byers, War Law: International Law and Armed Conflict

Henderson, C. M. — 2007-06-08