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Does International Humanitarian Law Confer Undue Legitimacy on Violence in War?
Get PDFInternational humanitarian law is lauded as a civilizing force that seeks to limit the effects of war for humanitarian reasons. There is, however, an increasing sense that IHL has facilitated rather than restrained military operations by conferring undue legitimacy on violence in war. This article focuses on the nature of the relationship between legitimacy and IHL to ascertain whether this is indeed the case. It concludes that, while IHL alone cannot confer normative legitimacy on battlefield conduct, it does frame empirical legitimacy. Whether such legitimacy is unwarranted is, ultimately, best judged by reference to morality. Yet insistence on the pre-eminence of humanitarian concerns within IHL is shown to be both misleading and aid social acceptance of battlefield conduct that humanitarians generally deem deficient
Episode 4: Congress: Your Partner in National Security
No full textSynopsis:For those serving in the military or civil service, Congress may appear to be a distant, mysterious other branch of government, yet Congress—through its powers to legislate, appropriate, confirm, and oversee—is part and parcel of the national security enterprise. In this episode, Professor Kathleen Walsh guides us through the roles of Congress and how it connects to you, the practitioner.About the Speaker:Kathleen (Kate) Walsh is associate professor of national security affairs at the U.S. Naval War College where she has taught policy analysis since 2006. Walsh is a member of the Faculty Advisory Council, the NWC’s Asia Pacific Studies Group (APSG) director and the founder/director of the Oceanography & Maritime Security Group (OMSG). She was a senior consultant to Washington, D.C.-area think tanks including senior associate at the Stimson Center and senior associate at a D.C.-area defense consulting firm, among other past positions there. Her research focuses on China and the Asia-Pacific region, particularly issues of security, technology, innovation and ocean or blue economy issues.The views presented by the faculty or other guest speakers do not reflect official positions of the Naval War College, DON or DOD.
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Manifestly Unlawful: Why Russian Military Commanders Must Disobey a Nuclear Launch Order Against Ukraine
Get PDFApplying the international legal framework governing the use of nuclear weapons to the facts of the war in Ukraine leads to a clear answer to the question of whether the use of nuclear weapons in Ukraine by Russia would be legal. While the 1996 International Court of Justice Advisory Opinion on the Threat or Use of Nuclear Weapons did not conclusively decide whether the use of nuclear weapons was per se illegal, by applying the legal framework articulated by the International Court of Justice to the facts of Russia’s war against Ukraine it is clear that any conceivable use of nuclear weapons in Ukraine by Russia would be illegal. This article builds on the holdings of the International Court of Justice advisory opinion by applying the fundamental principles of international humanitarian law to the war in Ukraine. This includes an evaluation of several types of potential Russian nuclear strikes, including a tactical nuclear strike on a city, at sea, or in a remote location of the battlefield. This analysis demonstrates that there is no Russian nuclear strike against Ukrainian targets that could satisfy the legal requirements of international humanitarian law. Therefore, the article advises Russian military commanders to refuse to launch any nuclear launch order against Ukraine in the present armed conflict
China Maritime Report No. 26: Beyond the First Battle: Overcoming a Protracted Blockade of Taiwan
Get PDFIf there is a war over Taiwan, an extended Chinese blockade is likely to determine the outcome. While a blockade might include intercepting ships at sea, the primary focus would be on sealing airfields and ports, particularly on the west coast of Taiwan. China could sustain that type of blockade indefinitely. Penetrating a prolonged blockade and keeping Taiwan alive would require a serious U.S. investment in systems and operational concepts that we currently do not have. Unless we make that investment, we may win the first battle, defeating an attempted landing. But we cannot win the war.https://digital-commons.usnwc.edu/cmsi-maritime-reports/1025/thumbnail.jp
The Shadow of Success: How International Criminal Law Has Come to Shape the Battlefield
Get PDFThe rise of international criminal law (ICL) has undoubtedly contributed to the development and enforcement of international humanitarian law (IHL). Yet, there are also important and oft-overlooked ways in which it has done the opposite. By labeling certain violations of the laws of war as “criminal” and setting up dedicated mechanisms for prosecution and punishment of offenders, the content, practice, and logic of ICL are displacing those of IHL. With its doctrinal precision, elaborate institutions, and the seemingly irresistible claim of political and moral priority, ICL is overshadowing the more diffuse, less institutionalized, and more difficult to enforce IHL.
But if ICL becomes the dominant lens through which battlefield activity is measured, it is not merely intellectually unsatisfying; it poses a serious risk to the attainment of the very same humanitarian values that ICL seeks to protect. Consider the fact that in many wars fought today, the majority of civilian deaths and injuries does not result from acts that could be classified as war crimes, but from the more “mundane” choices of means and methods of warfare that at most would lend themselves to IHL scrutiny.
Rather than diminishing the importance of ICL, this article calls for more attention to the ways in which ICL is impacting IHL as well as for a stronger commitment by States to the application and enforcement of IHL for its own sake
Aid and Assistance as a “Use of Force” Under the Jus Ad Bellum
Get PDFAlthough the prohibition of the use of force is a cornerstone of international law, our understanding of what constitutes a “use of force” under Article 2(4) of the UN Charter nonetheless continues to evolve. While the term was traditionally understood to mean armed force, emerging interpretations are expanding our understanding of the prohibition’s breadth. The Charter’s text, travaux préparatoires, and subsequent interpretations and practice by States, reinforced by the persuasive reasoning of the International Court of Justice, all confirm that the notion of force extends to indirect force, which includes military support provided to parties to a conflict. Yet, to date, States have failed to meaningfully contend with the notion of indirect force, much less clarify its precise threshold. Accordingly, through the lens of the Russia-Ukraine conflict, this article examines whether and, if so, when a State\u27s military aid or assistance that contributes to another State\u27s use of force constitutes a separate and distinct use of force under international law. After concluding that aid or assistance can, under certain conditions, qualify as a use of force, the article proposes several non-exclusive factors that States are likely to consider when assessing whether aid or assistance from a supporting State crosses the prohibition’s threshold