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Lessons for Legal Advisors from the Brereton Report
International humanitarian law practitioners and scholars have justifiably dedicated attention to the recent report of the Australian Defence Force (ADF) Inspector General into allegations of violations of the law of armed conflict (LOAC) in Afghanistan, known as the...
Is the Lieber Code Humanitarian?
Some critics maintain that the Lieber Code is not humanitarian. They are surprised and disappointed that Francis Lieber—one of the fathers of the modern law of war and an inspiration for the Hague Conferences—fails to meet their expectations. But such...
A Review of U.S. Space Force’s First Year
The newest branch of the U.S. military, the United States Space Force, was mandated by Congress and signed into law and existence by the President on December 19, 2019. The Space Force Professionals, now called Guardians, of the U.S. Air Force had been...
The Duty to Investigate War Crimes
On November 19, 2020, a report of the Australian Defence Force’s Inspector-General was released following a four-year investigation into allegations of unlawful killings and mistreatment of non-combatants and persons hors-de-combat in Afghanistan (also known as...
Interpretation in the Updated GCIII Commentary
The International Committee of the Red Cross (ICRC) Updated Commentary to the Third Geneva Convention is a remarkable feat of scholarship worthy of serious academic attention. It leaves almost no interpretive stone unturned in its effort to identify the humanitarian...
Reimagining IHL Principles Part II: A New Framework
Part II: A New Framework for IHL Principles To open the debate, in my previous post I argued that military necessity, humanity, chivalry, and proportionality are not IHL principles. Rather, they are either foundations or rules of IHL. So, what then are the principles...
Reimagining IHL Principles Part I: The Wrong Principles
Part I: We Have Been Using the Wrong Principles Most textbooks and State military manuals on the law of armed conflict, or international humanitarian law (IHL), contain a chapter entitled “the principles of IHL.” Authors and States list varying principles they see as...
Mercenaries on the Battlefield: What Legal Advisors Must Know
Mercenaries … are useless and dangerous. And if a prince holds on to his state by means of mercenary armies, he will never be stable or secure… -- Niccolò Machiavelli, The Prince Mercenaries have been used since the dawn of war. In recent years, however, there has...
Military Considerations and the Ntaganda “Attack” Question
This post concludes our series featuring the International Criminal Court’s recent hearings on the legal notion of “attack.” As co-editors-in-chief, we wish to extend our sincere gratitude to our contributors. As scholars of the law of war, we wish to add a few...
The Unintended Consequences of International Court Decisions
In response to a prosecution appeal in the case of The Prosecutor v. Bosco Ntaganda, the International Criminal Court (ICC) is currently considering the meaning of “attack” under the Rome Statute. The Court’s decision, however, could have consequences that...
“Attacks” against Hospitals and Cultural Property: Broad in Time, Broad in Substance
On behalf of the Public International Law and Policy Group (PILPG), we recently filed an amicus curiae brief with the International Criminal Court (ICC) in the appellate case of Bosco Ntaganda. In this post, we will briefly discuss the main arguments we raised...
Ending Wars: The Law of War’s Latest Source of Stress
The nineteenth anniversary of 9/11 offered a telling reminder of the problem of “forever wars.” In the United States, few Americans under the age of thirty can remember when the country was not involved in military operations in multiple countries and against...
Motive and Control in Defining Attacks
In the appellate case of The Prosecutor v. Bosco Ntaganda, the Appeals Chamber of the International Criminal Court asked for briefs from “qualified publicists with the requisite expertise, who are interested in submitting observations on” the definition of “attack” as...
The U.S. Landmine Policy Complies with International Law
In late January, the United States replaced the Obama Administration’s 2016 landmine policy, which was first introduced in 2014. That policy had proscribed the use of antipersonnel landmines beyond the Korean peninsula. In taking this step, Defense Secretary...
The Definition of an “Attack” under the Law of Armed Conflict
As in any branch of international law, examining the meaning of a law of armed conflict (LOAC) term, and its incorporation in the Rome Statute of the International Criminal Court, should look first to the treaties—and “attack” is no different. Indeed, as is well...
A Radical Reimagining of the Concept of “Attack”
The Office of the Prosecutor (OTP) filed its Appeals Brief In the Case of the Prosecutor v. Bosco Ntaganda on 7 October 2019, almost precisely a year prior to the time of this writing. The Prosecution argument attempts to expand the war crime found in the Rome...
Symposium Intro: The ICC Considers the Definition of “Attack”
The Ntaganda case—currently pending before the International Criminal Court (ICC) Appeals Chamber—raises an issue of importance to both the law of war (international humanitarian law) community and those working in international criminal law. How should the meaning of...
Biometrics on the Battlefield
We use biometrics on a daily basis. You need only think of unlocking your phone with your fingerprint, using iris recognition to pass through airport security, or the biometrics integrated into your passport. Considering the possibilities this technology...
The Efficacy of the U.S. Army’s Law of War Training Program
On July 2, 2020, the Department of Defense reissued DoD Directive 2311.01, the DoD Law of War Program.* Under the previous Directive, issued in 2006, Secretaries of the Military Departments were required to “[i]mplement programs in their respective Military...
The Importance of Clarity and Flexibility in the Law
Adherence to the law of armed conflict remains a bedrock value of professional militaries. The legal obligation of any professional military to wage war in a just and lawful manner remains unquestioned. Yet the rules are regularly challenged. In particular,...
NATO in Outer Space: A Domain Too Far?
This post examines whether Article 5 of the North Atlantic Treaty is applicable to armed attacks in outer space. NATO nations have recently recognized outer space as a new operational domain for the Alliance. Although the drafters of the North Atlantic Treaty...
The UN Soleimani Report and the U.S. Article 51 Notification
On July 9, 2020, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions released a report on the legality of targeted killing by drone strikes. The backdrop for the report is the U.S. strike against Qasem Soleimani on January 2, 2020. And,...
Whither Recognition of Belligerency?
Delineating, defining, and dealing with how the law of armed conflict applies to civil wars and other non-international armed conflicts (NIACs) has presented constant legal challenges over the last two decades. Numerous questions have arisen. What is the legal...
Space Power, Space Force, and Space Law
Space is a unique operational domain not only due to its physics, but also due to its legal regime. Although Space Power, the inaugural doctrinal manual of the U.S. Space Force, does not focus on legal issues in and of themselves, it does mention at least one...
Cyber Operations and The Imperfect Art of “Translating” the Law of War to New Technologies
Since the inception of combat as an organized endeavor, humans have innovated new means and methods of warfare to gain advantage over their adversaries. Some of these innovations have been subtle. Others have been far more impactful and transformative,...
Noteworthy Releases of International Cyber Law Positions—PART II: Iran
Last week, Iran’s Armed Forces released its “Declaration of General Staff of the Armed Forces of the Islamic Republic of Iran Regarding International Law Applicable to the Cyberspace.” Noting that the military has a “mandate…under the command of the Supreme...
Noteworthy Releases of International Cyber Law Positions—PART I: NATO
Although efforts such as the Tallinn Manual 2.0 project have contributed greatly to understanding how international law rules apply in the cyber context, much work remains to be done. Indeed, a significant grey zone in the international law of cyberspace...
Imagining Justice for Syria
The situation in Syria poses an acute—some might say existential—challenge to the international community’s commitment to justice and accountability. The conflict has been so destructive, the crime base so massive, the pool of potential defendants so...
“DEEPFAKES” AND THE LAW OF ARMED CONFLICT: ARE THEY LEGAL?
The use of misleading “deepfakes” has risen dramatically across the globe. As with so much of emerging technology, deepfakes will inevitably become a part of armed conflict. While perfidious deepfakes would almost certainly violate the law of armed conflict, those...
Welcome to Articles of War
Welcome It’s our sincere pleasure to introduce you to Articles of War, the new digital publication of the Lieber Institute for Law & Land Warfare at West Point. In this initial post we’ll share our plans and introduce you to our editorial team. But first a quick...
Francis Lieber’s Living Legacy
It is an honor to pen one of the first posts for the Lieber Institute for Law and Land Warfare’s Articles of War. This forum provides an important venue for practitioners of the law of war to engage with each other—both domestically and internationally—to articulate...
Will Autonomy in U.S. Military Operations Centralize Legal Decision-making?
The growth of machine learning tools in military operations raises new questions about where the most critical decision points are located. Are the most important political, operational, and legal decisions made out in the field, where the tools are used, or in...
Targeting Non-State “Mixed Groups”
“Now I want you to remember that no bastard ever won a war by dying for his country. You won it by making the other poor dumb bastard die for his country.” General George Patton, May 31, 1944, Addressing the 6th Armored Division Sounds simple, but deceptively...
Civilian Casualty Aversion and the Potential Nullification of “Shock”
In recent years, there has been a growing critical focus on the infliction of civilian casualties during hostilities, especially during counter-insurgency operations. But U.S. and NATO armed forces are not myopically focused on this domain of operations. Indeed, they...