Topics
Assassination in the Law of War
Few lawyers better appreciated the importance of terminological precision than my late friend and law of war colleague, Hays Parks. Over three decades ago, he turned his attention to assassination. This post builds on his work by elaborating on the precise meaning of...
Special Operations Forces Wear of Non-standard Uniforms
There has been perhaps no one in the DoD legal community who has made a greater contribution to the advancement of the law of war than Col.(ret.) W. Hays Parks, USMC—and nowhere was his contribution greater than within the Special Operations community. His work on...
Hays Parks and U.S. Views on Targeting Law
Three decades after its publication, Colonel W. Hays Parks’s article Air War and the Law of War remains a key resource for attorneys who advise on targeting operations. The article is noteworthy for its deep exploration of the history of the law of war as well as its...
Hays Parks and Direct Participation in Hostilities
As he did with so many subjects of the law of war, W. Hays Parks left an indelible imprint on the long fraught question of direct participation in hostilities by civilians. From early legal advice to expert consultations and seminal academic contributions, his work...
Symposium Intro: Hays Parks’s Influence on the Law of War
Most developments and codifications of the law of war have been responses to the evolving character of warfare. Indeed, a timeline of law of war treaties reads like a chronicle of changes in the tactics, technologies, and participants in war. Yet like war itself,...
LAWS Debate at the United Nations: Moving Beyond Deadlock
The United Nations is once again hosting a Group of Governmental Experts tasked to report on emerging technologies in the area of lethal autonomous weapons systems (LAWS). Further debate on this subject at the conceptual level, such as its definition, accountability,...
Announcement: Hitoshi Nasu Joins West Point and the Lieber Institute
The West Point Department of Law and the Lieber Institute are pleased to announce that Dr. Hitoshi Nasu has joined us as a Professor of Law. Professor Nasu brings a wealth of expertise in the field of public international law, with many years of research and teaching...
The Rhetoric of Retaliation
The language we use to justify and describe legal constraints on personal conduct or grants of legal authority to our government is never totally free of bias, ambiguity, flawed premises, or unproveable assumptions. How we fix, manipulate, or comport ourselves to...
Farewell to Dr. Sasha Radin
Unfortunately for Articles of War and the Lieber Institute at West Point, this week we bid a fond farewell to Dr. Sasha Radin, who served as Managing Editor of Articles of War and Director of Research & Publications of the Lieber Institute. As a founding member of...
Holding Autonomy to Account: Legal Standards for Autonomous Weapon Systems
The March 21 UN Panel of Experts on Libya report, citing the use of an autonomous armed drone by Turkish-backed Government of National Accord Affiliate Forces to attack retreating Hafter-Affiliated Forces in Libya, suggests the prospect of weapons with autonomous...
“Over-the-Horizon Operations” in Afghanistan
The United States’ withdrawal from Afghanistan has rightly dominated the world’s attention. The suicide bombing at Hamid Karzai International Airport on August 26th, resulting in the loss of 10 Marines, 2 Army Soldiers, 1 Navy Corpsman, and 170 Afghan civilians, will...
Counterterrorism, Investigative Detention, and the New Global Security Environment
The images of Afghan civilians clinging to crowded military planes departing Afghanistan as the Taliban reclaimed Kabul are the iconic indicia of a tectonic shift in the global security environment. This shift, to be sure, did not begin with the U.S. retrograde from...
Terrain Denial Fires on the Modern Battlefield
Stability and counterterrorism operations in Afghanistan, Iraq, and Syria have provided the primary source of operational experience for currently serving American military leaders and legal advisors. Regardless of whether U.S. forces will (or logistically can)...
The Security Council Veto in Syria: Imagining a Way Out of Deadlock
Editor’s note: This post concludes the Articles of War Symposium on Beth Van Schaack’s book, Imagining Justice for Syria. The symposium offers a platform for the contributing experts to carry the conversation on justice and accountability in Syria forward. In...
Afghanistan and Noncombatant Evacuation Operations
Last month, President Biden announced the U.S. military mission in Afghanistan would officially conclude by August 31, 2021. Since the drawdown of U.S. and other international forces from Afghanistan began in May, the Taliban has made rapid gains across the...
Terminological Precision and International Cyber Law
The recent spate of hostile cyber operations by States, non-State groups affiliated with States, and non-State groups operating on their own has resulted in a cacophony of pronouncements and commentary by political leaders, pundits, journalists, and legal experts. As...
“Water finds its way”? Universal Jurisdiction as an Avenue for Justice in Syria
Editor’s note: Germany’s recent charges against a Syrian doctor, Alaa M., bring renewed attention to universal jurisdiction cases around the Syrian conflict. Here, Alexandra Lily Kather highlights developments and challenges regarding cases brought under the principle...
When Corporations Take Offensive Measures Against States
Cyberattacks are increasingly inundating the private sector, and most States are unable or unwilling to provide adequate protection against these attacks. To mitigate this challenge, numerous corporations acknowledge that they have engaged in some form of active cyber...
Down Is Not Always Out: Hors De Combat in the Close Fight
Note: this piece builds on a recent article published in Infantry Magazine. While that article was intended “to equip infantry leaders with the knowledge required to train their soldiers to make confident, split-second decisions in combat,” this piece is focused on...
Targeting Dual-Use Structures: An Alternative Interpretation
In a recent Articles of War piece, I discussed protection of the media under international humanitarian law, a topic that had come to the fore when the Israel Defense Force (IDF) attacked the Al-Jalaa Tower, a 12-story building in the Gaza Strip on May 15. The...
Warnings as a Precautionary Measure: Gaza
On May 15, the Israel Defense Forces (IDF) gave advance warning of an airstrike against the Al Jalaa Tower in Gaza. IDF operational summaries of Operation Guardian of the Walls highlight extensive use of warnings in furtherance of the recognized obligation to take...
Israel, IHL, and the Al-Jalaa Tower
The most recent flare-up of active hostilities between Israel and Hamas once again brought to the forefront of legal discussions questions of responsibility and accountability for civilian deaths and damage to civilian property caused by Israel’s attacks in the Gaza...
The Kargu-2 Autonomous Attack Drone: Legal & Ethical Dimensions
In March 2021, a UN Panel of Experts on Libya reported a possible use of lethal autonomous weapons systems—such as the STM Kargu-2—which “were programmed to attack targets without requiring data connectivity between the operator and the munition: in effect, a true...
Announcement: Williams Chosen to Lead West Point Department of Law
The Lieber Institute is pleased to announce the selection of COL Winston S. Williams to serve as Professor and Head of the Department of Law at West Point. COL Williams will additionally assume duties as the Co-Director of the Lieber Institute and Co-Editor-in-Chief...
Hays Parks—A Legacy
The influence of William Hays Parks on the law of armed conflict (LOAC) goes back over 50 years and his fingerprints will be imprinted on it for a long time to come. A giant in the field, he was dedicated to providing U.S. combatants with the most effective means...
The Impact of Military Justice Reform on Command Responsibility
Over the past decade, the prevalence of sexual assault faced by women in the United States armed forces has prompted Congress to enact a series of reforms to the military justice system. The overarching objective of these reforms has been to reduce the...
Technology, Humanity, and the End of War
The role of new technologies in targeting—including GPS-guided weapons, battle networks, collateral damage estimation methodology (CDEM), cyber, drones, and autonomous weapons—has been the focus of extensive analysis by security and legal scholars. But this...
Legal Protection of the Media in Armed Conflict: Gaza
On May 15, the Israel Defense Forces (IDF) conducted an airstrike on Al Jalaa Tower, a 12-story building in the Gaza Strip. Conducted as part of Operation Guardian of the Walls, the attack destroyed the tower, which housed the Associated Press and Al Jazeera...
Israeli Attacks on Gaza’s Tower Blocks
Once more, the Israeli–Palestinian conflict has erupted into open violence and a miserable display of destruction and human suffering. In what has become a familiar pattern, the fighting on the ground is accompanied by a war of words. Mutual recriminations and...
Ntaganda Appeals Chamber Judgment Divided on Meaning of “Attack”
On 30 March 2021, the International Criminal Court Appeals Chamber issued its judgment in the Ntaganda case. The judgment, which primarily responds to the appeal submitted by Bosco Ntaganda against his conviction for numerous counts of crimes against humanity and war...
A Plea for True U.S. Leadership in International Criminal Justice
On April 1, 2021, the Biden administration revoked Executive Order 13928 that formed the legal basis under United States law for the Trump administration to impose financial sanctions against personnel of the International Criminal Court (ICC). These sanctions...
The Future Character of War and the Law
In 2018, then Army Chief of Staff General Mark Milley wrote that socio-economic, political, and technological changes will “revolutionize battlefields unlike anything since the integration of machine guns, tanks, and aviation which began the era of combined...
Announcement: Reeves Appointed Dean of West Point
The Lieber Institute for Law and Land Warfare is pleased to announce that COL(P) Shane R. Reeves has been confirmed for appointment to Brigadier General and will serve as the United States Military Academy’s next Dean of the Academic Board. COL(P) Reeves...
Russia, the Wagner Group, and the Issue of Attribution
Editor’s note: This week, the Modern War Institute and the Lieber Institute for Law and Land Warfare hosted a multi-disciplinary panel discussion on proxy warfare. Here, one of the panel participants, British Army Maj. Jennifer Maddocks, analyzes some of the legal...
A Pacifist-General’s Plan to Win America’s Next War
I’m not an absolute pacifist in the true sense of the word, but I’m about as close as you can get. I firmly believe in using military force only as a last resort. My view is shaped by my experience as both a soldier and lawyer. Most soldiers who have been in combat...
Humanitarian Notification Systems & Intentional Attacks Against Hospitals
Editor’s note: The following post is part of the Articles of War Symposium on Beth Van Schaack’s book, Imagining Justice for Syria. The symposium offers a platform for the contributing experts to carry the conversation on justice and accountability in Syria forward....
Non-State Commentaries: Law-Making or Law-Suggesting?
What is the role of non-State commentaries with respect to understanding international law, and more specifically, the law of armed conflict? This question is surprisingly provocative—particularly with regard to the ICRC’s most recent publication of the 2020...
Strengthening Atrocity Cases with Digital Open Source Investigations
Editor’s note: The following post is part of the Articles of War Symposium on Beth Van Schaack’s book, Imagining Justice for Syria. The symposium offers a platform for the contributing experts to carry the conversation on justice and accountability in Syria forward....
Battlefield Detention, Counterterrorism, and Future Conflicts
Editor’s note: The following post is part of the Articles of War Symposium on Beth Van Schaack’s book, Imagining Justice for Syria. The symposium offers a platform for the contributing experts to carry the conversation on justice and accountability in Syria forward....
Beth van Schaack’s Imagining Justice for Syria
Editor's note: The following post introduces the upcoming Articles of War Symposium on Beth Van Schaack’s book, Imagining Justice for Syria. Ten years into the conflict, this symposium provides an opportunity to assess the state of justice and accountability that...
Understanding Self-Defense and the Law of Armed Conflict
Many soldiers, commanders, and judge advocates involved in the conflicts in Africa, Syria, Iraq, and Afghanistan deploy with a dated and incomplete understanding of individual self-defense. This reality is the product, in part, of definitional imprecision in the...
The Legitimate Aims of Self-Defense
The United States' strike on Iranian-backed militias along the Syria-Iraq border on February 25 and the accompanying justifications, communications, and explanations have produced a flurry of legal discourse across the blogosphere and social media (here, here and...
President Biden’s First Use of Force and International Law
On February 25, President Biden authorized the first use of military force since becoming President. The operation involved two F-15s dropping seven 500-pound Joint Direct Attack Munitions (JDAM) bombs on a grouping of buildings at a Syria-Iraq border crossing....
Is the Time for Law of War Treaty Commentaries Over?
In two recent Articles of War posts, Sean Watts and Michael Meier criticized the Updated Commentary of Geneva Convention III. Rather than focusing on specific interpretations adopted or suggesting other interpretations, Michael Meier criticized the Commentary’s...
Experts Weigh in on Law of Armed Conflict Priorities
Presidential transitions present natural opportunities to reconsider national priorities. With the inauguration of a new administration, we asked our Lieber Senior Fellows and Lieber Distinguished Scholar what each considers to be the main law of armed conflict...
Opinio Juris and the Essential Role of States
Scholars, jurists, and practitioners have increasingly come to rely on non-State expressions to explain the customary law of armed conflict. This trend is problematic because it runs counter to how customary international law is created and should be...
The Updated GCIII Commentary: A Flawed Methodology?
In June of 2020, as part of its ongoing multi-year effort, the International Committee of the Red Cross (ICRC) launched its updated Commentary on the Third Geneva Convention of 1949. The Commentary analyzes how practice in the application and interpretation of...
Reexamining the Law of War for Great Power Competition
The United States has shifted its national defense posture to focus on “the reemergence of long-term, strategic competition” with “revisionist powers”—namely China and Russia. The government is heavily engaged in framing the assumptions and expectations of what...
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...