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Josep Borrell, Vice President of the European Commission, set out his fears that the EU was at risk of being “always principled but seldom relevant” (2021, p. 2). International law could be said to be similarly threatened, particularly in relation to cyberoperations, in respect of which its application has been strongly challenged. While states now broadly agree that international law applies in cyberspace, how it applies remains uncertain and contested. This paper analyses why the application of international law to cyberspace has been so fraught with difficulties and considers whether international law can provide the Irish State with a means of enhancing its cybersecurity and deterring state-led cyberoperations below the threshold of armed conflict. The paper finds that the application of international law in cyberspace is problematic due to the manifestation of cyberoperations below the jus ad bellum threshold, and the challenging geopolitical environment that inhibits agreement on the principles of the international law of cyberoperations. International law is an object of dispute (Delerue, Douzet, & Gery, 2020, p. 15) and arguments on the application of international law in cyberspace represent states’ strategic positions in the evolving geopolitical power struggle. The paper finds that, as cyberoperations are transnational, unilateral responses cannot be effective, and that small states have an interest in promoting international law and norms to create a more favourable international environment. The paper concludes that, as international law continues to exert a normative force on state behaviour, it has the potential to regulate sub-threshold cyberoperations as part of the comprehensive approach to cybersecurity.

The present study analyses climate change from the perspective of the law of armed conflict. Climate may be both a victim and a means of warfare. Arguably, the existing normative framework is broad enough to allow for accommodating climate change. It cannot be denied that the environment is easily harmed, or at least jeopardized in times of armed conflicts. Despite the obvious lack of explicit references in the instruments of international humanitarian law, it may be argued that it is possible to fit climate change in. The accompanying analysis addresses the respective potential and the ensuing hurdles.

Pre-colonial African communities had a well-established system of human rights protection applicable to armed conflicts, which became lost as a result of the break-up of traditional societies. This paper will show that traditional rules can be revived and integrated into future conflict management efforts. The ancient authentically African roots of international humanitarian law (ihl) could serve as receptors forming the basis for ihl and human rights law dissemination. Listening to local communities and learning about their aspirations and cultural practices should inform the peacebuilding programmes which need to be introduced before the cessation of hostilities. In the long run, engaging the armed non-state actors in the development of norms, could help improve certainty and predictability of ihl. Recent efforts by Geneva Call comprising a study of indigenous cultural norms relating to civilians’ protection in Mali underline the growing importance of integrating local approaches in ihl dissemination.

[Law and the Future of War Research Paper No 1] Technologically advanced armed forces have begun exploring ways to improve the warfighter as a living organism. The relevant practices could be called “biomedical human performance enhancement,” which sets them apart from more conventional ways of improving performance, such as training and equipment. Human enhancement raises a range of ethical, legal and social issues – both in the military context and in society more broadly. In the military context, issues arise under the law of armed conflict (LOAC). After providing a brief conceptual and technical background to human enhancement, this paper considers a set of LOAC issues relating to human enhancement by asking two broad questions: First, does LOAC prohibit or restrict the enhancement of warfighters? Second, if warfighters are enhanced in some way, what consequences does that have under LOAC?

This article explores the influence of international humanitarian law (IHL) on the development of the law of international responsibility and, in particular, the contribution of IHL to the adoption of rules related to breaches of obligations erga omnes and obligations erga omnes partes. Indeed, IHL conventions embody some obligations erga omnes and erga omnes partes, as demonstrated, for instance, by Common Article 1 of the 1949 Geneva Conventions, by some provisions relating to the suspension, termination and modification of IHL treaty provisions, and by some monitoring mechanisms. The study of the relevant provisions of the law of armed conflict, state practice and international case law demonstrates that IHL conventions had already envisaged some consequences of violations of obligations erga omnes and erga omnes partes, which were later codified by the International Law Commission. Accordingly, it is possible to argue that IHL contributed to the development of general international law in this field.

Levée en masse – the spontaneous uprising of the civilian population against an invading force – has long been a part of the modern law of armed conflict with regard to determining who may legitimately participate in armed conflict. The concept originated during the revolutionary wars in America and France, and was incorporated into the first codified rules of armed conflict. However, despite the prevalence of the category of levée en masse in the modern laws of armed conflict, there have been few, if any, instances of levée en masse taking place in modern armed conflicts. This article examines how and why the category of levée en masse developed. In doing so, this article situates the concept and evolution of levée en masse within the history of international humanitarian law more generally.

The targeted killing of Iranian general, Qasem Soleimani, on 3 January 2020 by a drone strike by the United States, raises some international law issues. With regard to the law of armed conflict, it may be asked whether this action is part of an existing armed conflict; if there was no armed conflict between the United States and Iran prior to the assassination of Soleimani, the question then arises as to whether this same action, in itself, has led to the beginning of an armed conflict between the two countries. Established that the United States and Iran would not be acting within the framework of the jus in bello, the assassination of Soleimani can be assessed in the context of the right to use force, that is, the jus ad bellum. In this context, the interpretation and application of the right of self-defence invoked by the United States raises doubts. El asesinato del general iraní, Qasem Soleimani, el 3 de enero de 2020 por un ataque aéreo estadounidense con dron, plantea algunas cuestiones de derecho internacional. Por lo que respecta al derecho de los conflictos armados, cabe preguntarse si esta acción es parte de un conflicto armado ya existente; si no existía un conflicto armado entre Estados Unidos e Irán antes del asesinato de Soleimani, cabe entonces preguntarse si esta misma acción, de por sí, ha provocado el comienzo de un conflicto armado entre los dos países. Establecido que EE. UU. e Irán no habrían actuado en el marco del jus in bello, cabe evaluar el asesinato de Soleimani en el marco del derecho del uso de la fuerza, es a decir del jus ad bellum. En este ámbito, la interpretación y aplicación del derecho de legítima defensa, invocado por los Estados Unidos suscita dudas.

One of the most intriguing and important discussions in international law today is the potential impact of emerging technologies on the law of armed conflict (LOAC), including weapons that incorporate machine learning and/or artificial intelligence. Because one of the likely characteristics of these advanced weapons would be the ability to make decisions implicating life and death on the battlefield, these discussions have highlighted a fundamental question concerning the LOAC: does the law regulating armed conflict require human input in selecting and engaging targets or can that decision be made without human input? This article analyzes views expressed by scholars and NGOs, but focuses on views expressed by States, many of which have been publicized as part of the discussions of States Parties to the Certain Conventional Weapons Convention. As a result of this analysis, It is clear that States have not yet come to a consensus on the issue of the legal role of human decision making in LOAC compliance. Given that lack of consensus, one can only conclude that the law does not currently require a human decision for selecting and engaging targets to be lawful. Though the international community may come to such a decision, it has not yet done so. Therefore, States should continue to research and develop weapons that incorporate machine learning and artificial intelligence because such weapons offer the promise of not only greater compliance with existing norms and processes, but also increased opportunities to provide protections in new and creative ways in the future.

The upcoming research aspires to elucidate limits imposed by international public law on deployment of cyber weapons. The research will mainly focus on two significant legal frameworks, namely law of armed conflict and human rights law, and examine whether those frameworks are sufficient. In a greater detail, attention will be paid to the Article 36 of Additional Protocol I. Besides well-known notion of armed conflict (international or non-international one), so far new and not-so-new concepts of hybrid warfare, hybrid threats and grey zone conflicts come into consideration. Similarly to standard kinetic weapons, their cyber counterparts could be deployed in all these scenarios. Those relatively new areas are only partially covered by international law in the art. 36 and the research will consider if the weapon review requirement stemming from that article may be applicable to those new scenarios. This research does not solely aim at clarification of the art. 36 itself, but most importantly, it will try to transform the general weapon review requirement into specific guidelines that will be helpful in situations that do not reach the level of armed conflict.

This is a pre-copyedited, author-produced version of an article accepted for publication in Journal of Conflict & Security Law following peer review. The version of record Antal Berkes, The Standard of ‘Due Diligence’ as a Result of Interchange between the Law of Armed Conflict and General International Law, Journal of Conflict and Security Law, Volume 23, Issue 3, Winter 2018, Pages 433–460 is available online at: https://doi.org/10.1093/jcsl/kry022

The international law of armed conflict (also known as international humanitarian law or the law of war) regulates the conduct of hostilities—including the use of weaponry—and the protection of victims in situations of both international and non-international armed conflict. Rooted in customary law, often of very great antiquity, since the late nineteenth century it has become one of the most intensively codified areas of international law. This chapter outlines the scope of application of the law; issues of personal status (combatants and civilians); the conduct of hostilities (methods and means of warfare, including choice of weapons and targeting operations); the protection of victims (sick, wounded, shipwrecked, prisoners of war, and civilians); and various ways of securing the law’s implementation and enforcement.

Cyberterrorism, while being written about since the early 2000s, is still not fully understood as a strategic concept and whether such actions can be deterred is hotly contested. Some strategists and policy makers believe that acts of cyberterrorism, especially by non-state actors, may prove to be undeterrable. Yet the leadership of both state and non-state actors tend to act rationally and function strategically, and therefore they can, in fact, be deterred to some degree. Helping to shape the legitimate options following a significant cyberattack, the Law of Armed Conflict has salient considerations for the deterrence of cyberterrorism, particularly the principles of military necessity and lawful targeting. Furthermore, when considered holistically and using all available means, deterrence combined with dissuasion activities can lessen the likelihood of cyberterrorism, while mitigating any consequences should such a cyberattack actually occur. This article is available in Journal of Strategic Security: http://scholarcommons.usf.edu/jss/vol8/iss4/2

This book is the first volume of the Operational Maritime Law series. The series provides a platform for practitioners and scholars with specific interest in current operational maritime law issues, to publish research advancing legal discourse, as well as analysing current issues. The theme of the first volume is Operational Law in International Straits and Current Maritime Security Challenges. This volume is broken down into three parts. Part I explores international straits in an operational law context, Part II discusses current subjects on maritime security and maritime safety and Part III offers some thoughts on the law of armed conflict at sea. This introduction highlights today’s maritime challenges in naval operations and provides an explanation of the relevance of each section of the publication. In regard to operational maritime law, three strands, in particular, stand out: maritime security, focus on persons and non-international armed conflict. Furthermore, in terms of positioning the law applicable for naval operations within the context of international law, it is argued that this area may be seen as a sub-regime of the international law of military operations.

This chapter describes the history of the law of armed conflict and its relevance to women. The law of armed conflict has not been heavily scrutinized by feminists but its provisions offer feminists many challenges. This chapter explores how, despite theoretically seeming to benefit women, these provisions from assumptions around combatancy status to civilian protection depict a gendered vision of women, reinforce destructive gender stereotypes, and fail to address systemic gender discrimination. The chapter concludes by exploring feminist encounters with the law of armed conflict and the extent to which protections for women in situations of armed conflict have improved over time. It also describes challenges that lie ahead and provides suggestions for feminist scholarship to probe further.

Training and dissemination of the fundamental rules and principles of law of armed conflict (LOAC) is the first step in any process to ensure lawful military operations. A soldier, a military unit, an entire military must know the rules and parameters for appropriate, lawful and effective action during armed conflict. In the same manner, accountability for violations of LOAC — whether individual criminal accountability or state responsibility — is an equally essential tool for enforcing the law. Exploring the intersection between these two endpoints of the spectrum of LOAC implementation highlights how training and accountability can actually work together to maximize each one’s effectiveness. The way in which information about training contributes to accountability under command responsibility is a strong reinforcement of the message that commanders must ensure that their troops are properly trained in LOAC and that such training is effective and provided to all troops, regular or irregular. A commander’s commitment to providing training can also be evidence of his or her good character for purposes of mitigation. And a state’s failure to implement a regular and effective program of training and instruction can help determine its responsibility for regular or repeated abuses by its troops.

The recent proliferation of external investigations into military operations raises important questions for the conduct of military operations and the interpretation and implementation of international law. The impact of such investigations and their reports, however, extends beyond how they influence the military and the implementation of the law of armed conflict. As countries and societies embroiled in lengthy conflicts begin to explore the value and effectiveness of undertaking transitional justice efforts during conflict, rather than only after conflict, investigations into military operations and specific incidents can play an important – and perhaps unexpected – role. This article focuses specifically on the inter-relationship between investigations and transitional justice efforts. As investigations into military operations become a common tool in the international and national arsenal, understanding how they interact with and affect broader transitional justice efforts and goals becomes important, both for the conceptualisation of investigations and the development of transitional justice mechanisms. This article addresses the relationship between investigations and the truth-telling aspect of transitional justice mechanisms, as well as the impact of the use of law and legal analysis on the legitimacy of the investigations and on potential transitional justice mechanisms.

In 2010 the Taliban issued a third edition of their Layeha. The Layeha contains Rules and Regulations of Jihad for Mujahidin. This article first details the short history of the Layeha published by the Taliban. Subsequently its content is analysed and compared with the international law of armed conflict that applies in conflicts of an international and non-international character. The author demonstrates that, whilst some rules are incompatible or ambiguous, most rules of the Layeha are compatible with the international law of armed conflict. Compliance with the rules that are compatible could help to achieve the objectives of the law of armed conflict: to minimise unnecessary suffering in armed conflict. The author submits that considering that the Taliban are engaged in fighting in Afghanistan and that they have control of or influence in parts Afghanistan, it is encouraging that they have produced such a self-imposed code. Any minimum restraint, whether self-imposed or imposed by municipal or international law, is better than no restraint at all.

I wanted to begin by thanking Dr. Voneky for her thoughtful contribution to this rapidly developing area of international law. One of the purposes of the ongoing dialogue with my European counterparts on the legal framework for the use of force and detention of combatants in an armed conflict with non-state actors is to spur dialogue to arrive at a common approach on these issues. I agree with many things in Dr. Voneky's article. I am pleased that, unlike many critics of the United States, she recognizes that it is possible to use force in self defense from armed attacks not directly linked to the actions of any state, and that the law of armed conflict would govern that use of force. I also appreciate that she notes that actions against terrorist groups outside a state's country are not necessarily simply transnational police actions. I wanted to take this brief opportunity to note three areas where there may be some misunderstandings regarding the views of the United States, and then discuss my thoughts on the way forward.

Shortly after the beginning of the Syrian Civil War, the Islamic terror group ISIS captured the world’s attention with their rapid advance through Iraq and acts of severe brutality. In short order, the group captured large swaths of territory in Iraq and Syria and declared the formation of an Islamic State. With the integrity of Iraq in the balance, the United States committed to taking military action against ISIS but quickly discovered that as pressure was put on ISIS in Iraq they retreated into Syrian lands, where U.S. warplanes could not go. This article explores the legal justifications for the use of military force that the United States may invoke to take military action against ISIS in Syria. Beginning first with a history of the Islamic State in Iraq and Syria as an outgrowth of al-Qaeda and tracing its actions through the Middle East, the article finds three justifications for using force in Syria to halt the advance of ISIS. Under customary international law the article finds a possible avenue under the long-standing principles of express and implied consent. Second, the article explores the consequences of proceeding under United Nations Security Council authorization, absent the consent of Bashar al-Assad. Finally, the article explores the intricacies of proceeding under various notions of self-defense under Article 51 of the United Nations Charter.

Decisions about targeting, since they involve the choice to destroy human lives and property, are inherently ethical decisions. This article reviews the ethical categories that have evolved in the Western tradition’s philosophical and religious traditions. It discusses the ways in which these traditions both generate and on occasions diverge from the other major normative framework in which these decisions are evaluated—the legal tradition that became the Law of Armed Conflict (LOAC) and which is enshrined in International Law.