Journal of Conflict and Security Law - recent issues

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

Editorial

2008-12-04

Military Misconduct during International Armed Operations: 'Bad Apples' or Systemic Failure?

Rowe, P. — 2008-12-04

The various trials of soldiers for the excessive use of force or for the ill-treatment of detained civilians during international armed operations have attracted considerable publicity. The explanation frequently given by senior commanders is that misconduct of this type can be explained by seeing the alleged culprits as ‘bad apples’ and, once they are removed, the military system should be able to operate without further incidents of serious wrongdoing. This article explores why the various forms of misconduct take place and, in so doing, it considers the effectiveness of training, the effect on the soldier of any uncertainty of action, command failures and group influences. The action likely to be taken (or not taken) by way of legal or other proceedings against both soldiers and their commanders is assessed. The article concludes by taking the position that whilst the ‘bad apple’ theory might explain why some, but not all, soldiers engage in military misconduct during armed operations it fails to address the more important systemic issue, namely, whether adequate training and effective command responsibility can control such conduct. It argues for the need, on the part of military commanders, to reduce uncertainty of action or conduct to its irreducible minimum (through measures to counteract the causes of misconduct discussed in the article). This may then prove to be the key to reducing the need to rely predominantly on taking legal proceedings against individual soldiers in a search for alleged ‘bad apples’.

The Responsibility to Protect Doctrine and Humanitarian Intervention: Too Many Ambiguities for a Working Doctrine

Focarelli, C. — 2008-12-04

The question about possible remedies, including military intervention, to avoid or to put an end to massive violations of human rights committed by a state towards its own citizens or in situations where state authorities critically lack effectiveness has been extensively debated since the issuance in 2001 of the report of the International Commission on Intervention and State Sovereignty (ICISS) on the responsibility to protect. After a succinct and critical review of the ICISS’ report and the subsequent international instruments dealing with the responsibility to protect, this contribution focuses on the positions adopted by states, especially over the last three years at the General Assembly and at the Security Council of the United Nations on humanitarian intervention as a ‘corollary’ of the responsibility to protect doctrine. It appears that humanitarian intervention aimed at implementing the responsibility to protect is not only feared as imperialistic by several weak states, but it also significantly fails to find an unconditioned support even amongst the most powerful states. Given its extreme and multifaceted ambiguity, which is discussed in the last section of this contribution, the innovative content of the purported ‘emerging norm’ on the responsibility to protect, as well as its prospect to emerge in the future, remain rather unclear.

A Corporate Alternative to United Nations ad hoc Military Deployments

Patterson, M. — 2008-12-04

The history of United Nations peacekeeping is frequently one of failure. The causes are endemic, persistent and unlikely to be remedied. It seems reasonable to consider two ideas in response: whether ad hoc peacekeepers might be augmented or even replaced by competent contract labour; and whether well-trained contractors might in future subdue by force those who inflict gross human rights abuses on others. Alternatives to ad hoc forces are not new. Nevertheless, theoretical or practical substitutes have not been evaluated alongside the merits of a private corporation supported by a business model. Military contractors are frequently represented as an affront to states’ authority. This is misleading. There has never been a clear divide between public and private resources in armed conflict and states have always employed both. There exists no compelling reason in law why the UN should not devise modern contracts that evolve from historically ubiquitous arrangements amongst its members and their more ancient predecessors. Formidable hurdles remain. Nonetheless, the deployment of disciplined, professional contractors under rigorous conditions may offer improvements on present standards of peacekeeping. This would enable the Security Council to better address its Charter responsibilities and, in particular, the Preamble and its admonition on war.

The 'Protection of Nationals' Doctrine Revisited

Ruys, T. — 2008-12-04

Legal scholars as well as states have long disagreed on the compatibility with the UN Charter of the so-called ‘protection of nationals’ doctrine. This doctrine suggests that states are allowed to forcibly intervene in other countries for the protection of their nationals abroad, subject to the following (cumulative) conditions: (i) there is an imminent threat of injury to nationals; (ii) a failure or inability on the part of the territorial sovereign to protect them and; (iii) the action of the intervening state is strictly confined to the objective of protecting its nationals. This article re-examines the available evidence in customary practice, while taking account of two new elements: on the one hand, the increased tolerance on behalf of the international community vis-à-vis unauthorised evacuation operations, and, on the other hand, the critical attitude of many states throughout the UN General Assembly debate on diplomatic protection in 2000. After finding that customary evidence fails to offer conclusive answers, the author makes some tentative suggestions de lege ferenda to find a way out of the existing legal impasse.

Reflections on the USA-India Atomic Energy Cooperation

Ntoubandi, F. Z. — 2008-12-04

On 2 March 2006, the USA sealed a civilian nuclear cooperation deal with India, which ended more than three decades of US sanction against India. On 9 July 2008, India took a decisive step towards implementing the deal by submitting to the International Atomic Energy Agency (IAEA)'s Board of Governors for approval a draft safeguards plan aiming at applying the IAEA safeguards to its civilian nuclear programme. The proposed deal raises two issues of utmost importance that may become fundamental in shaping the future of the international effort to prevent the proliferation of nuclear weapons. Firstly, it impacts on the existing nuclear non-proliferation legal regime, and may have consequences on the behaviour of other actors in the field of non-proliferation. In this sense, the proposed deal appears to be in contradiction with the basic rationale of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) that requires a non-nuclear-weapon state to receive civilian nuclear assistance only after it has foregone nuclear weapons. In addition, the deal may have opened up a Pandora's Box for claims based on the safety exception contained in the NSG Guidelines, which would allow members of the NSG to proliferate at will. Secondly, the controversial deal may achieve the very objectives of non-proliferation during its implementation phase, providing that as a result of it, India adheres to the NPT, becomes a full member of the NSG and accepts IAEA's safeguards and NSG Guidelines on export and control. The future of the military component of India's nuclear programme will then depend on the general attitude adopted by all nuclear weapon states towards implementing fully their other basic obligations under the NPT.

Charles T. Call (ed.), Constructing Justice and Security after War

McAuliffe, P. — 2008-12-04

Ray Murphy, UN Peacekeeping in Lebanon, Somalia and Kosovo: Operational and Legal Issues in Practice.

Darcy, S. — 2008-12-04

Editorial

2008-10-21

Anticipatory Self-Defence and International Law--A Re-Evaluation

Guiora, A. N. — 2008-10-21

Traditional state v state war is largely a relic. How then does a nation-state defend itself, pre-emptively, against an unseen enemy? Existing international law—the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373—does not provide sufficiently clear guidelines regarding when a state may take pre-emptive or anticipatory action against a non-state actor. This article proposes rearticulating international law to allow a state to act earlier provided sufficient intelligence is available. After examining international law, this article proposes a process-based ‘strict scrutiny’ approach to self-defence. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable and corroborated intelligence, that pre-emptive action is appropriate. This process leads to a check on the power of the executive by placing a judicial check on pre-emptive action, consequently establishing objective legal criteria for operational counterterrorism.

A Response to Amos Guiora: Pre-Emptive Self-Defence Against Non-State Actors?

Gazzini, T. — 2008-10-21

In this brief response to Professor Guiora's article, the author questions the lawfulness of pre-emptive self-defence in the context of international terrorism. He further argues that Article 51 as it is currently interpreted and the relevant rules on State responsibility provide an adequate legal protection to States. The response also addresses the question of judicial review by national courts over the executive's decision to resort to military force.

A Response to Amos Guiora: Reassessing the Parameters of Use of Force in the Age of Terrorism

Kinacioglu, M. — 2008-10-21

This commentary examines the "strict-scrutiny" approach to self-defence as proposed by Professor Amos N. Guiora and analyzes whether it provides for a clear guideline as to when states may carry out pre-emptive and anticipatory action against a non-state actor. It reviews the existing concepts of the right of self-defence and pre-emption under international law, with special emphasis on the prevailing debates stemming from contesting interpretations of the related law. In addition, the commentary assesses the relevant decisions in international litigation and state practice to shed light on the application of the conditions for admissible use of force in specific instances of the use of force. In the second part, the commentary critically examines the merits and applicability of Professor Guiora's proposal. It concludes that when there is an international organization (United Nations) which is empowered as a world court, the utility of such domestic mechanism would be limited in terms of providing a legal and moral right to act preventatively.

Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of the Guyana/Suriname Award

Kwast, P. J. — 2008-10-21

The distinction between maritime law enforcement and the use of force at sea is as intricate in law as it is fundamental in practice. Many international legal aspects regarding the determination of the nature of forcible measures against foreign ships at sea have remained largely unexplored. The Guyana/Suriname Arbitration has been significant in this respect since the Tribunal has had to consider some important questions involving the categorisation of forcible action at sea. With an emphasis on the recent Guyana/Suriname Award, this article offers some preliminary reflections on what may be considered to be key aspects of the distinction between maritime law enforcement and the use of force at sea.

The Continuing Role for Belligerent Reprisals

Sutter, P. — 2008-10-21

‘The rumours of my demise are greatly exaggerated.’ – Mark Twain

The enforcement of the law of war has always been a difficult proposition. It has become even more difficult in recent conflicts given the propensity of combatants to employ unlawful violence to further their cause. Such horrific conduct begs the question, how does the law of war restrain violators? There are many potential methods, among them war crimes tribunals and international mediation, but the subject of this article is the final enforcement mechanism: belligerent reprisals. It is a doctrine that responds to unlawful conduct by inflicting the same violation upon the violators in order to force them to cease. The doctrine of reprisals has fallen into disuse as numerous commentators suggest that it is no longer effective and soon to slip into complete illegality. However, reprisals utilizing a prohibited weapon remain lawful. And, for a number of states, reprisals against captured enemy combatants remain lawful. Violating the law of war, even in a manner it allows, is a repugnant act, yet an even more repugnant act is to allow an adversary to violate that same law with impunity.

The Responsibility to Protect: The Role of International Human Rights Law

McClean, E. — 2008-10-21

This article explores the potential of the responsibility to protect, having gained the support of the member states of the United Nations (UN) at the 2005 World Summit, as a framework for the UN to address genocide, war crimes, ethnic cleansing and crimes against humanity. It is argued that in order for the UN to harness this potential of the responsibility to protect a number of obstacles and challenges – normative, institutional and operational – must be overcome and that international human rights law has a central, if not pivotal, role in this regard thereby strengthening the responsibility to protect as a framework for the UN to address genocide, war crimes, ethnic cleansing and crimes against humanity.

Catherine Brolmann, The Institutional Veil in Public International Law: International Organisations and the Law of Treaties

Collins, R. — 2008-10-21

Peter Judson Richards, Extraordinary Justice: Military Tribunals in Historical and International Context

Liivoja, R. — 2008-10-21

Benjamin J. Goold and Liora Lazarus (eds.), Security and Human Rights.

Odello, M. — 2008-10-21