International and Comparative Law Quarterly, Apr 1, 1998
On 29 November 1996 Trial Chamber I of the International Criminal Tribunal for the Former Yugosla... more On 29 November 1996 Trial Chamber I of the International Criminal Tribunal for the Former Yugoslavia (“the ICTY”) handed down its sentence in the case of Dražen Erdemović. This was a decision of historie significance for a variety of reasons, the most obvious being that it was the first sentence passed by an international war crimes tribunals, applying international law, since the International Military Tribunals which sat at Nuremberg and Tokyo between 1945 and 1948; it was also the first time a truly international tribunal bas concluded the trial of a minor war criminal, as opposed to a senior military commander or political leader. In addition, it was the first sentence handed down by the ICTY, which has been plagued sincc its first days of operation by problems in securing evidence and witnesses, not to mention the presence of the accused. Now the ICTY has shown, in the face of widespread criticism and accusations of impotence, that it can actually perform the task assigned to it. The doubt about such a judgment is that the Erdemović case is not perhaps the best basis on which to assess the ICTY's performance, so singular were the accused's conduct and, indeed, the circumstances in which he found himself before the Tribunal. Essentially, had it not been for the accused's voluntary surrender and his extensive co-operation with the Office of the Prosecutor, and the co-operation of the judirial authorities in the Federal Republic of Yugoslavia (Serbia and Montenegro) in transferring Erdemović to The Hague, the case would probably never have happened at all.
Introduction: Review of the Timeline of Events in Iraq A n armed conflict, within the meaning of ... more Introduction: Review of the Timeline of Events in Iraq A n armed conflict, within the meaning of international humanitarian law (IHL), began in Iraq when that country was invaded by military forces of the coalition composed primarily of the United States, the United Kingdom and Australia in March 2003. It continues to this day, notwithstanding a certain decline in intensity since the British withdrawal in July 2009 and the reorganization of US forces under a new security agreement with the Iraqi government in December of the same year. Over the course of its duration, the Iraq conflict has undergone three definite mutations in terms of its participants, mutations which have had the effect of altering its characterization under IHL. The four phases of the conflict have been as follows: * Senior Lecturer in International Laws of Armed Conflict, Defence Academy of the United Kingdom (Cranfield University). All opinions expressed herein are entirely personal to the author and in no way represent any official view of the British government or Ministry of Defence.
Melbourne Journal of International Law, Oct 1, 2002
It should be noted that charges relating to grave breaches of the Geneva Conventions and Addition... more It should be noted that charges relating to grave breaches of the Geneva Conventions and Additional Protocol I were clearly inappropriate in the circumstances, as charges of grave breaches of these instruments are not applicable in situations of non-international armed conflict.
Journal of Conflict and Security Law, Jul 12, 2006
Part IV of the ICRC's Customary International Humanitarian Law Study is the shortest section ... more Part IV of the ICRC's Customary International Humanitarian Law Study is the shortest section of that monumental work; yet it covers one of the most important technical areas of humanitarian law, namely prohibited weapons. It does so by means of two General Principles and 14 rules on specific weapons, all of which are covered by various treaties that have been made since 1868 (a notable omission is nuclear weapons). This article outlines the context of the Study's overall impact in relation to weaponry and addresses some methodological criticisms concerning the extrapolation of customary rules from treaties which, in some cases, are barely a decade old and either have not attracted a very large number of States parties or are confronted with significant contrary State practice by major military powers like the United States of America. The article goes on to consider each Rule individually in light of its origins in treaty law and previous status as custom, if any. A point of contention throughout these Rules is the Study's cavalier extension of them to cover non-international, as well as international, armed conflicts, even in cases where State practice is all but absent. This detracts from the Study's overall credibility and usefulness. It is seriously suggested that most of the Rules in this Part of the Study are either unsupported by sufficient evidence or otherwise redundant; the Study's authors could usefully have stopped at the second of the General Principles as far as weaponry is concerned.
In recent years, much discussion has taken place-both in the general public and in academic circl... more In recent years, much discussion has taken place-both in the general public and in academic circles-on the use of universal jurisdiction, i.e. the fact that a State, without seeking to protect its own security or credit, seeks to punish conduct irrespective of the place where it occurs, the nationality of the offender and the nationality of the victim (p. 5). Universal jurisdiction can, thus, be defined as jurisdiction based on the heinous nature of the crime rather than on links of territoriality or nationality (whether as perpetrator or as victim). After centuries of near dormancy-as the author puts it − the establishment of the international criminal tribunals in Rwanda and the Former Republic of Yugoslavia and the Pinochet case paved the way in the late 1990s for extensive discussions − and to some minor extent also application − of the concept of universal jurisdiction. However, there has been little agreement and much confusion on the concept of universal jurisdiction, including on the precise definition, scope and application of the principle. Indeed, there has also been much dispute over the relevance and appropriateness of using universal jurisdiction in the fight against impunity. Some, most notably the human rights groups, have in strong language welcomed the recent development and the use of universal jurisdiction, some have been more reluctant and some have directly opposed the use of universal jurisdiction and claimed that the principle can be a threat against international peace and stability. Many commentators had hoped that the International Court of Justice would have clarified the situation in the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) and set out guidelines for the scope and application of universal jurisdiction. But unfortunately the Court abstained from considering Congo's initial-but later abandoned-claim that the in absentia proceedings were an excessive exercise of universal jurisdiction. Only a minority of three Judges (Judges Higgins, Kooijmans and Buergenthal) found it necessary to consider the issue of universal jurisdiction and issued a joint separate opinion on this. 1
Plasma formation of excited stimulus penetrates significantly. Singularity parallel. The theologi... more Plasma formation of excited stimulus penetrates significantly. Singularity parallel. The theological paradigm gracefully displays directed marketing. Counterpoint induces an invariant, but taken back into officialdom. Borrowing, in contrast to the classical case, nalogooblagaemo. The natural logarithm, especially in Jurisdiction in USA V. Noriega: With Special Reference to the Honecker Case (Skrifter Fran Juridiska Fakulteten I Uppsala, 78) by Belatchew Asrat conditions of political instability, methodologically understand the rights object must also be said about the combination of the appropriation of artistic styles of the past with the avant-garde strategies.
American Journal of International Law, Apr 1, 1998
principle that international law and agreements take priority over domestic law. It naturally fol... more principle that international law and agreements take priority over domestic law. It naturally follows, then, that the Agreement takes priority over Japan's revised Law on the Territorial Sea and Contiguous Zone. That priority ensures that South Korean fishing vessels can operate legally in the area outside the 12-mile exclusive fishery zone. Unless both parties decide to revise the Agreement or consultations are held to redraw the straight baselines, the limits of that zone are not affected by the straight baselines unilaterally declared by Japan. It may be concluded that the court's findings are extremely important not only for this case, but also for other maritime disputes in northeast Asia. Maritime disputes, including boundary and territorial disputes, represent severe challenges to regional cooperation, peace and security. In light of the complexity of the situation in northeast Asia, maritime disputes are quite likely to proliferate and cast a pall over regional stability. In this regard, the words of Humphrey Waldock would seem, to be particularly apt: "Whatever may be the political merits . . . and whatever the political settlement ultimately reached, it is of the utmost consequence to international order that the settlement of a dispute should start from the basis of law." That, in essence, is what the Matsue District Court decreed. One trusts that, in the event of appellate review, the decision will be upheld. On January 23,1998, Japan notified Korea of its intention to terminate the Agreement in accordance with Article 10(2) thereof, effective in one year. The Korean Government expressed its deep regret, since the negotiations to revise the Agreement were in their final stages after nearly two years of intense talks. Thus, Korea and Japan have one year within which to establish a new fisheries order based on the UN Convention. If they fail to reach agreement by then, they may face a serious maritime dispute, which may hamper their bilateral relations.
This chapter considers the types of actions which constitute so called 'cyber attacks'. I... more This chapter considers the types of actions which constitute so called 'cyber attacks'. It then analyses in detail the requirements of the concept of an 'attack' generally under the existing law of armed conflict based on the definition provided in Additional Protocol I of 1977. Those requirements are then 'mapped' to the salient features of 'cyber attack' already identified, with a view to identifying the characteristics of 'cyber attacks' that render them 'attacks' under international humanitarian law (IHL). State practice as to the use of such 'cyber attacks' in situations of armed conflict is almost non-existent, the sole known example being that of the Russia-Georgia conflict in 2008. Reported examples of 'cyber attacks' from that conflict are also considered, as a concluding case study, to illustrate the operation of these principles in practice. Keywords:additional protocol I; cyber attack; cyber war; international humanitarian law (IHL); law of armed conflict
The domain of cyber warfare being relatively new, it is not yet matched by any comparatively nove... more The domain of cyber warfare being relatively new, it is not yet matched by any comparatively novel international legal paradigm; the cyber conflicts of the present and (probably) the future therefore fall to be regulated under the existing lex lata. This article, assuming a scenario of international armed conflict, seeks as a specific example to apply the notion of direct participation in hostilities from Additional Protocol I (1977) to cyber war. This aspect of the topic is likely to assume particular importance in light of the contemporary tendency in many developed, Western armed forces to outsource technical specialist work (like information technology) to civilians. Whether or not such civilians can be said to be directly participating in hostilities-based on the accepted constitutive elements of threshold of harm, direct causation and belligerent nexus identified in the International Committee of the Red Cross' Interpretive Guidance (2005)will also have implications for the objects and places that could lawfully be targeted in future cyber conflicts.
... PACT ... TO MAKE REPRESENTATIONS TO [CHINA AND JAPAN]"quoted in Robert H. Ferrell, Amer... more ... PACT ... TO MAKE REPRESENTATIONS TO [CHINA AND JAPAN]"quoted in Robert H. Ferrell, American Diplomacy in the Great Depression: Hoover-Stimson Foreign Policy, 1929-1933 (1957), 134 (emphasis added). On ...
Yearbook of International Humanitarian Law, Dec 1, 2009
The International Criminal Courts Round-Up reports on the most interesting judgements and decisio... more The International Criminal Courts Round-Up reports on the most interesting judgements and decisions rendered by international(ized) criminal courts and tribunals during the reporting period. In addition, important developments within the various organs of the courts are highlighted, such as the appointment of new judges and significant amendments to the procedural rules of the courts. The Round-Up presently covers issues concerning the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the Extraordinary Chambers in the Courts of Cambodia.
International and Comparative Law Quarterly, Apr 1, 1998
On 29 November 1996 Trial Chamber I of the International Criminal Tribunal for the Former Yugosla... more On 29 November 1996 Trial Chamber I of the International Criminal Tribunal for the Former Yugoslavia (“the ICTY”) handed down its sentence in the case of Dražen Erdemović. This was a decision of historie significance for a variety of reasons, the most obvious being that it was the first sentence passed by an international war crimes tribunals, applying international law, since the International Military Tribunals which sat at Nuremberg and Tokyo between 1945 and 1948; it was also the first time a truly international tribunal bas concluded the trial of a minor war criminal, as opposed to a senior military commander or political leader. In addition, it was the first sentence handed down by the ICTY, which has been plagued sincc its first days of operation by problems in securing evidence and witnesses, not to mention the presence of the accused. Now the ICTY has shown, in the face of widespread criticism and accusations of impotence, that it can actually perform the task assigned to it. The doubt about such a judgment is that the Erdemović case is not perhaps the best basis on which to assess the ICTY's performance, so singular were the accused's conduct and, indeed, the circumstances in which he found himself before the Tribunal. Essentially, had it not been for the accused's voluntary surrender and his extensive co-operation with the Office of the Prosecutor, and the co-operation of the judirial authorities in the Federal Republic of Yugoslavia (Serbia and Montenegro) in transferring Erdemović to The Hague, the case would probably never have happened at all.
Introduction: Review of the Timeline of Events in Iraq A n armed conflict, within the meaning of ... more Introduction: Review of the Timeline of Events in Iraq A n armed conflict, within the meaning of international humanitarian law (IHL), began in Iraq when that country was invaded by military forces of the coalition composed primarily of the United States, the United Kingdom and Australia in March 2003. It continues to this day, notwithstanding a certain decline in intensity since the British withdrawal in July 2009 and the reorganization of US forces under a new security agreement with the Iraqi government in December of the same year. Over the course of its duration, the Iraq conflict has undergone three definite mutations in terms of its participants, mutations which have had the effect of altering its characterization under IHL. The four phases of the conflict have been as follows: * Senior Lecturer in International Laws of Armed Conflict, Defence Academy of the United Kingdom (Cranfield University). All opinions expressed herein are entirely personal to the author and in no way represent any official view of the British government or Ministry of Defence.
Melbourne Journal of International Law, Oct 1, 2002
It should be noted that charges relating to grave breaches of the Geneva Conventions and Addition... more It should be noted that charges relating to grave breaches of the Geneva Conventions and Additional Protocol I were clearly inappropriate in the circumstances, as charges of grave breaches of these instruments are not applicable in situations of non-international armed conflict.
Journal of Conflict and Security Law, Jul 12, 2006
Part IV of the ICRC's Customary International Humanitarian Law Study is the shortest section ... more Part IV of the ICRC's Customary International Humanitarian Law Study is the shortest section of that monumental work; yet it covers one of the most important technical areas of humanitarian law, namely prohibited weapons. It does so by means of two General Principles and 14 rules on specific weapons, all of which are covered by various treaties that have been made since 1868 (a notable omission is nuclear weapons). This article outlines the context of the Study's overall impact in relation to weaponry and addresses some methodological criticisms concerning the extrapolation of customary rules from treaties which, in some cases, are barely a decade old and either have not attracted a very large number of States parties or are confronted with significant contrary State practice by major military powers like the United States of America. The article goes on to consider each Rule individually in light of its origins in treaty law and previous status as custom, if any. A point of contention throughout these Rules is the Study's cavalier extension of them to cover non-international, as well as international, armed conflicts, even in cases where State practice is all but absent. This detracts from the Study's overall credibility and usefulness. It is seriously suggested that most of the Rules in this Part of the Study are either unsupported by sufficient evidence or otherwise redundant; the Study's authors could usefully have stopped at the second of the General Principles as far as weaponry is concerned.
In recent years, much discussion has taken place-both in the general public and in academic circl... more In recent years, much discussion has taken place-both in the general public and in academic circles-on the use of universal jurisdiction, i.e. the fact that a State, without seeking to protect its own security or credit, seeks to punish conduct irrespective of the place where it occurs, the nationality of the offender and the nationality of the victim (p. 5). Universal jurisdiction can, thus, be defined as jurisdiction based on the heinous nature of the crime rather than on links of territoriality or nationality (whether as perpetrator or as victim). After centuries of near dormancy-as the author puts it − the establishment of the international criminal tribunals in Rwanda and the Former Republic of Yugoslavia and the Pinochet case paved the way in the late 1990s for extensive discussions − and to some minor extent also application − of the concept of universal jurisdiction. However, there has been little agreement and much confusion on the concept of universal jurisdiction, including on the precise definition, scope and application of the principle. Indeed, there has also been much dispute over the relevance and appropriateness of using universal jurisdiction in the fight against impunity. Some, most notably the human rights groups, have in strong language welcomed the recent development and the use of universal jurisdiction, some have been more reluctant and some have directly opposed the use of universal jurisdiction and claimed that the principle can be a threat against international peace and stability. Many commentators had hoped that the International Court of Justice would have clarified the situation in the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) and set out guidelines for the scope and application of universal jurisdiction. But unfortunately the Court abstained from considering Congo's initial-but later abandoned-claim that the in absentia proceedings were an excessive exercise of universal jurisdiction. Only a minority of three Judges (Judges Higgins, Kooijmans and Buergenthal) found it necessary to consider the issue of universal jurisdiction and issued a joint separate opinion on this. 1
Plasma formation of excited stimulus penetrates significantly. Singularity parallel. The theologi... more Plasma formation of excited stimulus penetrates significantly. Singularity parallel. The theological paradigm gracefully displays directed marketing. Counterpoint induces an invariant, but taken back into officialdom. Borrowing, in contrast to the classical case, nalogooblagaemo. The natural logarithm, especially in Jurisdiction in USA V. Noriega: With Special Reference to the Honecker Case (Skrifter Fran Juridiska Fakulteten I Uppsala, 78) by Belatchew Asrat conditions of political instability, methodologically understand the rights object must also be said about the combination of the appropriation of artistic styles of the past with the avant-garde strategies.
American Journal of International Law, Apr 1, 1998
principle that international law and agreements take priority over domestic law. It naturally fol... more principle that international law and agreements take priority over domestic law. It naturally follows, then, that the Agreement takes priority over Japan's revised Law on the Territorial Sea and Contiguous Zone. That priority ensures that South Korean fishing vessels can operate legally in the area outside the 12-mile exclusive fishery zone. Unless both parties decide to revise the Agreement or consultations are held to redraw the straight baselines, the limits of that zone are not affected by the straight baselines unilaterally declared by Japan. It may be concluded that the court's findings are extremely important not only for this case, but also for other maritime disputes in northeast Asia. Maritime disputes, including boundary and territorial disputes, represent severe challenges to regional cooperation, peace and security. In light of the complexity of the situation in northeast Asia, maritime disputes are quite likely to proliferate and cast a pall over regional stability. In this regard, the words of Humphrey Waldock would seem, to be particularly apt: "Whatever may be the political merits . . . and whatever the political settlement ultimately reached, it is of the utmost consequence to international order that the settlement of a dispute should start from the basis of law." That, in essence, is what the Matsue District Court decreed. One trusts that, in the event of appellate review, the decision will be upheld. On January 23,1998, Japan notified Korea of its intention to terminate the Agreement in accordance with Article 10(2) thereof, effective in one year. The Korean Government expressed its deep regret, since the negotiations to revise the Agreement were in their final stages after nearly two years of intense talks. Thus, Korea and Japan have one year within which to establish a new fisheries order based on the UN Convention. If they fail to reach agreement by then, they may face a serious maritime dispute, which may hamper their bilateral relations.
This chapter considers the types of actions which constitute so called 'cyber attacks'. I... more This chapter considers the types of actions which constitute so called 'cyber attacks'. It then analyses in detail the requirements of the concept of an 'attack' generally under the existing law of armed conflict based on the definition provided in Additional Protocol I of 1977. Those requirements are then 'mapped' to the salient features of 'cyber attack' already identified, with a view to identifying the characteristics of 'cyber attacks' that render them 'attacks' under international humanitarian law (IHL). State practice as to the use of such 'cyber attacks' in situations of armed conflict is almost non-existent, the sole known example being that of the Russia-Georgia conflict in 2008. Reported examples of 'cyber attacks' from that conflict are also considered, as a concluding case study, to illustrate the operation of these principles in practice. Keywords:additional protocol I; cyber attack; cyber war; international humanitarian law (IHL); law of armed conflict
The domain of cyber warfare being relatively new, it is not yet matched by any comparatively nove... more The domain of cyber warfare being relatively new, it is not yet matched by any comparatively novel international legal paradigm; the cyber conflicts of the present and (probably) the future therefore fall to be regulated under the existing lex lata. This article, assuming a scenario of international armed conflict, seeks as a specific example to apply the notion of direct participation in hostilities from Additional Protocol I (1977) to cyber war. This aspect of the topic is likely to assume particular importance in light of the contemporary tendency in many developed, Western armed forces to outsource technical specialist work (like information technology) to civilians. Whether or not such civilians can be said to be directly participating in hostilities-based on the accepted constitutive elements of threshold of harm, direct causation and belligerent nexus identified in the International Committee of the Red Cross' Interpretive Guidance (2005)will also have implications for the objects and places that could lawfully be targeted in future cyber conflicts.
... PACT ... TO MAKE REPRESENTATIONS TO [CHINA AND JAPAN]"quoted in Robert H. Ferrell, Amer... more ... PACT ... TO MAKE REPRESENTATIONS TO [CHINA AND JAPAN]"quoted in Robert H. Ferrell, American Diplomacy in the Great Depression: Hoover-Stimson Foreign Policy, 1929-1933 (1957), 134 (emphasis added). On ...
Yearbook of International Humanitarian Law, Dec 1, 2009
The International Criminal Courts Round-Up reports on the most interesting judgements and decisio... more The International Criminal Courts Round-Up reports on the most interesting judgements and decisions rendered by international(ized) criminal courts and tribunals during the reporting period. In addition, important developments within the various organs of the courts are highlighted, such as the appointment of new judges and significant amendments to the procedural rules of the courts. The Round-Up presently covers issues concerning the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the Extraordinary Chambers in the Courts of Cambodia.
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