Law of Armed Conflict

Kein Krieg vor Somalia

by Tim René Salomon

Immunities of United Nations Peacekeepers in the Absence of a Status of Forces Agreement

by William Worster

Whether due to a need to act quickly or a lack of a functioning government with whom to negotiate, the UN often needs... more Whether due to a need to act quickly or a lack of a functioning government with whom to negotiate, the UN often needs to authorize the deployment of peacekeepers and other peace support personnel without the benefit of a Status-of-Forces Agreement (“SOFA”). Unless or until this initial failure to have a SOFA is later cured by the conclusion of a SOFA, the problem arises what immunities UN-mandated peacekeeping forces may enjoy in the absence of a SOFA. UN-mandated peacekeeping operations have traditionally been present in host States with the consent of the State involved. However, the UN Security Council has taken the dramatic step of authorizing the constitution of peacekeeping forces without the consent of the host State. If there is no consent, then State immunity does not apply and we must look to other sources of immunity or comparable protection. These sources can include international humanitarian law, the UN Charter, the UN Immunities Convention, the UN Safety Convention, and customary international law. This paper attempts to assess all of these potential sources of immunities and determine the protections available for UN peacekeepers in the absence of a SOFA.

AGGRESSION AS “ORGANIZED HYPOCRISY?” – HOW THE WAR ON TERRORISM AND HYBRID THREATS CHALLENGE THE NUREMBERG LEGACY

by Sascha-Dominik Bachmann

FINAL PUBLICATION IN APRIL 2012 - WORKING COPY on SSRN
(2012) 30 Windsor Y B Access Just

Modern threats to international peace and security from so called, “hybrid threats,” such as cyber war, low intensity... more Modern threats to international peace and security from so called, “hybrid threats,” such as cyber war, low intensity asymmetric conflict scenarios, global terrorism, etc., which involve a diverse and broad community of affected stakeholders involving both regional and international organisations/structures, also pose further questions for the existing legacy of Nuremberg. The (perhaps unsettling) question arises of whether our present concept of, “war and peace," with its legal pillars of the United Nations Charter’s Articles 2(4), 51, and the notion of the criminality of waging aggressive war based on the, “legacy,” of Nuremberg has not become outdated to respond to new threats arising in the 21st century. This article also serves to warn that one should not use the definition of aggression, adopted at the ICC Review Conference in Kampala in 2010, to repeat the most fundamental flaw of Nuremberg: Ex post facto criminalisation of the (unlawful) use of force. A proper understanding of the, “legacy of Nuremberg,” and a cautious reading of the text of the ICC definition of aggression provide some markers for purposes of the debate on the impact of new threats to peace and security and the use of force in international law and politics.

Linking Purpose and Tactics: America and the Reconsideration of the Laws of War During the 1990s

by Stephanie Carvin

Caught in the Cold: International Humanitarian Law and Prisoners of War During the Cold War

by Stephanie Carvin

Threshold Constraints and Laws of War

by James Fallows Tierney

Working Paper

The laws of armed conflict forge a balance between deontological humanitarian concerns on one hand, and... more The laws of armed conflict forge a balance between deontological humanitarian concerns on one hand, and consequentialist military-advantage concerns on the other hand. Yet the literature provides inadequate theoretical foundations for the balances these rules make at a structural level. In this paper, I explain how the standard humanitarian account and the first-wave economic account cannot alone explain the diversity of rules and principles observed in the formal doctrine and in state practice.

States’ revealed preference for norms fleshing out those “minimum standards” can not be brushed aside as mere “behavioral regularities.” Many of these minimum standards are the result of purely instrumental coordination, since all belligerents are better off with full compliance under conditions of transparency and effective enforcement. But recognizing that states sometimes act for non-instrumental reasons supplements rather than falsifies claims that states act rationally under other circumstances. By adopting and deploying recent advances in law and economics that seek to bridge the gap between consequentialist and deontological moral theories, I show how the complex system of the laws of war are the product of both kinds of concerns.

This working paper applies the threshold constraint framework to an emerging class of problems in the laws of armed conflict related to cyberwarfare. Uncertainty, risk-shifting, threshold-constraint concerns, and cost-reduction preferences play important roles in shaping law-of-armed-conflict rules, which in turn constrain and channel the tactical options states can select in carrying out armed conflict. These concerns also have institutional-design effects when states are uncertain about how technological progress will change battlefield conduct. This draft ends by explaining and understanding how states might seek to change those rules in light of anticipated (and even unknown) changes in battlefield technology.