Environmental protection in times of armed conflicts, irrespective internal or international, is rarely considered as a prioritized concern. Due to the concept of state sovereignty, this is especially problematic when examining interaction of warfare and environmental protection in non-international hostilities. Not only it is challenging to find any exhaustive and explicit legal provisions regulating the matter, but this issue has also been forgotten by international legal scholars. Therefore, in this article the author reviews written and (...) customary norms laid down in documents of various branches of international law, such as international humanitarian law, human rights law, environmental law and international criminal law, which directly or by way of interpretation may favour environmental protection in times of internal armed conflict. This is to be done in order to gather information about the sufficiency of legal framework on preservation of the environment in times of noninternational armed conflicts. After doing this research, a few possible means to improve current legal framework are suggested. The author suggests to impose civil liability, enact new comprehensive document, initiate changes in international criminal law and other. (shrink)

Cyber warfare is becoming a new reality with new battles fought everyday on virtual battlefields. For a century and a half, International Humanitarian Law has been a sentry for victims of wars guaranteeing their legal protection from the calamities of war, trying hard to respond to Clausewitz’s “chameleon of war”. Cyber conflict marks new chameleon’s colour together with the unmanned aerial vehicles, autonomic battle systems and other technologies deployed on battlefields. However, it would be greatly erroneous to claim (...) that the International Humanitarian Law may not apply to the new phenomena just because it is caused by the advanced technology. Even if the Geneva Conventions of 1949 are already sixty years old, the International Humanitarian Law in itself has at minimum customary response mechanism, granting, in a spirit of Marten’s clause, protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience (Protocol I). Notwithstanding, some more complicated fundamental issues also have to be addressed: how the use of cybernetic weapons and means may affect the classic notion of armed conflict? How it can be interpreted in the light of new technologies, i.e. can we still rely on a classic understanding of weapon’s kinetic effect as the main element, or shall we embrace effectsbased “Schmitt’s criteria”. If it so happens, will it make an act without apparent damage to a person/property equal to military hostilities, required by the armed conflict notion and justify the real-life response to it. The effective or overall control tests were used for the attribution of non-state actor’s activity to the state party of an armed conflict but these tests might not meet its purpose in the virtual battlefield of loose networks and open-source communities. If the concept of armed conflict is treated more flexibly, other changes (including issues of attribution) may follow, as well. Perhaps this is the way how the combatant institute will evolve. With classic combatant’s criteria impossible to apply on virtual battlefields, one of the options would be to elaborate concepts of “constant combat function” and “direct participation in hostilities” more precisely, as well as to reconsider state’s affiliation requirements. (shrink)

This book challenges the World Medical Associationâ (TM)s (WMA) International Code of Ethics statement in 2004, which declared that â ~medical ethics in armed conflict is identical to medical ethics in times of peaceâ (TM). This is achieved by examining the professional, ethical, and legal conflicts in British Military healthcare practice that occur in three distinct military environments. These are (i) the battlefield, (ii) the operational environment and (iii) the non-operational environment. As this conflict is exacerbated (...) by the need to achieve Operational Effectiveness, this book also explores the dual loyalty conflict that Military Health Care Professionals (MHCPs) encounter between following military orders and professional codes of practice. The method used to challenge the WMAâ (TM)s statement and explore these conflicts is the use of real-life problem-solving vignettes, which mirror actual ethical and professional conflicts and dilemmas that may occur in the three environments. The areas of law analysed similarly reflect the difficulties that MHCPs face when caring for the sick and wounded in violent locations when under attack. In particular, the book questions whether it is right for a MHCP to owe their patients a duty of care in hostile environments. This leads on to questioning if any MHCP could be protected by combat immunity where no duty of care is owed to fellow soldiers in the battlefield. The book also questions whether the standard of care should be variable in hostile environments. It also explores the dual loyalty conflict of a wounded senior officer refusing treatment from a junior officer. In addition, it examines the difficulties of a doctor maintaining patient confidentiality when a soldier refuses treatment for a psychological injury but wishes to redeploy to the battlefield. The book successfully challenges the WMAâ (TM)s statement. It also concludes by suggesting that neither a military-focused approach nor a professional healthcare-focused approach towards military healthcare is the best way to solve the dual loyalty conflict. (shrink)

The trend toward the “humanization” of international law reflects a greater emphasis on individuals rather than simply states as objects of concern. The advance of human rights law (HRL) has been an important impetus for this trend. Some observers suggest that humanization can be furthered even more by applying HRL rather than international humanitarian law (IHL) to hostilities between states and nonstate armed groups, unless a state explicitly declares that it is engaged in an armed (...) class='Hi'>conflict. This essay argues, however, that a court should not defer to a state's characterization of hostilities, but should base its analysis on whether hostilities meet the criteria for an armed conflict. Applying HRL to hostilities that effectively are an armed conflict but not acknowledged as such risks diluting the legitimacy and normative force of HRL. On the one hand, if a court applies conventional stringent HRL standards, this body of law may be seen as unrealistic and is likely to be ignored. On the other hand, a court that adapts HRL standards to armed conflict may need to take a consequentialist approach at odds with HRL's deontological foundations. Clearly differentiating between HRL and IHL may thus best promote the humanization of warfare. (shrink)

Armed conflict in Darfur, west Sudan since 2003 has led to the influx of about 100 international humanitarian UN and non-governmental organizations to help the affected population. Many of their humanitarian interventions included the collection of human personal data and/or biosamples, and these activities are often associated with ethical issues. A systematic review was conducted to assess the proportion of publicly available online reports of the research activities undertaken on humans in Darfur between 2004 and 2012 that (...) mention obtaining ethical approval and/or informed consent. This systematic review is based on a systematic literature search of Complex Emergency Database, ReliefWeb, PubMed), followed by a hand search for the hardcopies of the eligible reports archived in the Centre for Research on the Epidemiology of Disasters in Brussels. The online search showed that out of the 68 eligible studies, 13.2% reported gaining ethical approval and 42.6% that an informed consent was obtained from the participants. The CRED search included 138 eligible reports. None of these reports mentioned gaining ethical approval and 17 mentioned obtaining informed consent from their participants. The proportion of studies reporting ethical review and informed consent was smaller than might be expected, so we suggest five possible explanations for these findings. This review provides empirical evidence that can help in planning ethical conduct of research in humanitarian settings. (shrink)

ABSTRACT In this paper, we will highlight the correspondences between the Socially Engaged Buddhism movement, especially as defined in the practice of the late Thich Nhat Hanh, and the core principles of humanity, impartiality, neutrality and independence originally adopted by the International Red Cross and Red Crescent Movement. These principles also underpin the neutral, impartial and independent approach to humanitarian action, used by agencies working under the auspices of the United Nations’ Inter-Agency Standing Committee and Office for the Coordination (...) of Humanitarian Affairs, along with those who have signed the Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organizations in Disaster Relief. We hope this paper is a modest but useful contribution to create better understanding and to generate dialogue among different stakeholders in the humanitarian field, particularly in the context of armed conflict. (shrink)

ABSTRACT The core teaching of Buddhism revolves around understanding and alleviating suffering. Since the purpose of international humanitarian law (IHL) is to minimise suffering during armed conflict, by protecting the innocent and restricting the means and methods of warfare, Buddhists should support IHL. In this paper, I try not to utilise the Buddha’s well-known teachings such as karma, impermanence, non-self, emptiness, compassion and so on, to explain why Buddhists should support IHL. Instead, I present how and why (...) Buddhism underlines the importance of secular ethics, indicating that humanity comes first for Buddhism, which would be the main reason for Buddhists to support IHL. Buddhist monks such as Yinshun and the 14th Dalai Lama view common humanity, conventional morality and inner values as the grounds for Buddhism. An enhancement of humanity and the promotion of morality are also part of the way of Buddhist practice. Viewed from a humanistic perspective, Buddhism may endorse all laws, rules, and regulations that are in the best interest of the public and align with values such as peace, freedom, equality, justice, benevolence, and more, regardless of whether they are applied internationally or domestically. Buddhism upholds IHL for similar reasons. (shrink)

This book examines recent developments in sources of public international law, such as treaties and custom operating among nations in their mutual relations, as well as developments in some of the primary rules of law international institutions created by these processes. It finds that public international law has become increasingly dysfunctional in dealing with some of the primary problems facing the world community, such as the maintenance of international peace and security, violations of international human (...) rights and the law of armed conflict, arms control, disarmament and non-proliferation, and international environmental issues, and that international law and international institutions face a problematic future. It concludes, however, that all is not lost. There are possible alternative futures for international law and legal process, but choosing among them will require the world community making hard choices. (shrink)

The use of private military force by states has been a long-standing phenomena in the history of warfare. Armies of mercenaries, privateering and recruitment of foreign nationals into armed forces have been common during the Middle Ages and later on. However, with the invention of effective firearms and artillery, standing regular armies, conscription and other developments that resulted in the essential rise of costs of war, the role of private military entrepreneurs diminished. By the end of XIXth century the (...) state became almost the only subject that was able to wage a full-scale war. Nevertheless, already in the middle of the XXth century mercenarism has been reborn in Africa’s colonial and post-colonial wars. The end of the XXth century and the beginning of the XXI century witnesses an enormous rise of private security and military companies (PSMC) that are hired to perform different functions related to use of force not only by states, but also by other clients such as international organisations, transnational corporations, etc. A PSMC may be defined as a profit-seeking private enterprise, which is established according to the national law of the state and which is providing, on the basis of a contract, services directly or indirectly connected with the use of military force or its institutions whether in time of armed conflict or peace, notwithstanding how such company describes itself. International humanitarian law has no specific regulation of PSMC. Nevertheless, it would be erroneous to state that the activity of PSMC is not regulated, because international humanitarian law in any case, in one or another way, is applicable to the personnel of PSMC if it is engaged in armed conflict of either international or non-international character. (shrink)

This chapter considers how the adoption of autonomous weapons systems (AWS) may affect jus ad bellum principles of warfare. In particular, it focuses on the use of AWS in non-international armed conflicts (NIAC). Given the proliferation of NIAC, the development and use of AWS will most likely be attuned to this specific theater of war. As warfare waged by modernized liberal democracies (those most likely to develop and employ AWS at present) increasingly moves toward a model of individualized (...) warfare, how, if at all, will the principles by which we measure the justness of the commencement of such hostilities be affected by the introduction of AWS, and how will such hostilities stack up to current legal agreements surrounding their more traditional engagement? This chapter claims that such considerations give us reason to question the moral and legal necessity of ad bellum proper authority. (shrink)

Poland has faced two waves of migration: the first was of irregular asylum seekers, which led to the humanitarian crisis on the eastern EU–Belarusian border since 2021; the second was of Ukrainians fleeing the Russian invasion. Although there are noticeable differences between these situations, and between the different reactions of the Polish authorities, it is possible to juxtapose them in terms of the right to health. The normative content of refugee and human rights law is the starting point for reconstructing (...) the meaning of the terms ‘refugee’ and ‘right to health’. A refugee is a person who needs international protection because of a well-founded fear of harm, which is not limited to persecution as defined by the Refugee Convention but also includes situations of international and non-international armed conflict. The right to health, which includes, inter alia, entitlements to a ‘system of health protection’ and ‘underlying determinations of health’, is reconstructed on the basis of human rights law and refugee and migration law. There are no legal and moral grounds to grant the right to health differentially to different groups of refugees. Nondiscriminatory health policy requires that refugees have the same access to health care as nationals, although their specific health needs resulting from past experiences and refugee situation require special treatment, that is, an appropriate refugee health policy. The broad understanding of the underlying determinants of health demonstrates the importance of overall migration policy for refugees’ health, which can jeopardise the fragile good of refugee health. (shrink)

This paper aims to explore whether there are any legal limits to the use of force, in particular when force is used for political reasons. How plausible is it to expect people to limit their options when they feel that what they’re doing paves the way towards paradise? In this light, much of the law of armed conflict would seem to be inadequate, based as much of it is on the premise that force is non-political. To the extent (...) then that limits are conceivable, these may stem from the individual morality of those engaged in battle rather than from any grand legal designs. (shrink)

ABSTRACTThis article provides a normative appraisal of the law of military occupation by looking into occupation courts and their legitimacy. It focuses on two cornerstones of the current regulation of war: the principle of equality of belligerents, that is, the potential relevance ofjus ad bellumconsiderations on thein bellorights of occupants, and the normative force of the traditional distinction between states and non-state armed groups, specially in conflicts not of an international character. Against the currently predominant neoclassical position in (...) just war theory, it argues in favor of the moral equality of just and unjust occupants. Against the orthodox position in international law, it advocates the symmetrical treatment of states and non-state actors fighting internal armed conflicts, at least in terms of the rights they may claim on the territories under their control. It concludes by appraising the way in which this moral landscape should be translated into legal norms. (shrink)

*North American Society for Social Philosophy (NASSP) Book Award 2019.* -/- *International Studies Association (ISA) - International Ethics Section Book Award 2021.* -/- Although military mores have relied primarily on just war theory, the ethic of cooperation in warfare (ECW)—between enemies even as they are trying to kill each other—is as central to the practice of warfare and to conceptualization of its morality. Neither game theory nor unilateral moral duties (God-given or otherwise) can explain the explicit language of (...) cooperation in developing and enforcing principles of military ethics and the law of armed conflict. -/- The ethic of cooperation is borne of various motivations: reciprocity, self-preservation, and efficiency, to be sure, but also a sense of warrior honor and concern with human rights. This shared morality can persist despite making it more difficult for one side or the other to win and, unfortunately, its well-meaning motivations often lead to unintended tragic consequences. -/- This book explores three manifestations of this significant yet overlooked ethic of cooperation in warfare: (1) for a “fair fight,” (2) to protect classes of individuals (e.g., non-combatants or prisoners of war), and (3) to end the war quickly. Such cooperation can take unexpected forms, from ad hoc decisions on the battlefield to institutionalization in international law, and is the source of some critical tensions in one of the most significant developments in warfare in recent years: namely, how to handle terrorism or other forms of warfare that lie outside the purview of international law. -/- Each type of ECW raises questions internal to that ethic, such as inconsistencies in the concept of “parity” across different weapons bans, contradictions within the warrior ethic that heavily influence—and therefore confuse—notions of the “fair fight,” the disconnect between what protections a person receives and his responsibility for the war (e.g., political leaders), or the limited decisiveness of outcomes generated by very short wars. -/- Their simultaneous application also generates significant tensions and raises questions about the proper relationship of ECW to the immediate goal of war itself, which is to win, and thus yield either a political settlement or a justicial decision. For example, the ECWs for a “fair fight” and to protect classes of individuals can make it harder to win the war, but even more concerning is that they can also kill more people, which in the latter case contravenes its very purpose. -/- Human history is in some ways the story of trying to concurrently wage and tame war, and the architecture of warfare itself is informed by the ECW, in particular: (a) the political nature of war, (b) the abdication from jus ad bellum judgments in order to concentrate on justice within war (jus in bello), and (c) the ways in which modern nation-states collude to define “legitimacy” in war. -/- The combination of these three features leave questions of justicial right and responsibility for war disturbingly unresolved, it also generates new challenges in a geopolitical context in which cooperative and non-cooperative (e.g. contemporary terrorism) forms of warfare clash. (shrink)

This book analyses the problems of current just war theory, and offers a more stable justificatory framework for non-intervention in international relations. The primary purpose of just war theory is to provide a language and a framework by which decision makers and citizens can organize and articulate arguments about the justice of particular wars. Given that the majority of conflicts that threaten human security are now intra-state conflicts, just war theory is often called on to make judgments about wars (...) of intervention. This book aims to critically examine the tenets of just war theory in light of these changes, and formulate a new theory of intervention and just cause. For Michael Walzer, the leading scholar of just war theory, armed humanitarian intervention is permissible only in cases of genocide, ethnic cleansing, widespread massacres, or enslavement. This book shows why this threshold is too restrictive in light of the progressive shift away from interstate conflict as well as the emerging norms of 'sovereignty as responsibility' and the 'responsibility to protect'. _Justice, Intervention and Force in International Relations_ aims to establish a new, stable foundation for non-intervention and a revised threshold for 'just cause'. In addition, this book demonstrates that over-reliance on the just cause category distorts understanding, analysis, and public discussion of the justice or injustice of resorting to war. This new book will be of much interest to students of ethics, security studies, international relations and international law. Kimberley Hudson is Assistant Professor of Political Science at American International College, and has a Phd in International Relations from Brown University. (shrink)

The law of armed conflict prevents the coerced extraction of information from Prisoners of War (PoWs). We claim, however, that the letter of that law involves too broad a concept of coercion. On a natural reading, there is a sense in which any extraction of information—by any method—is coercive. We respect the notion that PoWs ought not be treated poorly, but we argue “coercion” should not be understood so broadly. With respect to its use in international law, (...) we favor a moralized notion of “coercion,” as opposed to a non-moralized one. We explain what this means, and argue why this is a better reading of the law. We think a moralized notion of coercion is more intuitive, is more in line with both actual practice and the intent of the framers of international law, and has practical benefits as well. (shrink)

Beginning with the support given by religious groups to humanitarian intervention for the protection of basic human rights in the debates of the 1990s, this essay examines the use of the human rights idea in relation to international law on armed conflict, the “Responsibility To Protect” doctrine, and the development of the idea of sovereignty associated with the “Westphalian system” of international order, identifying a dilemma: that the idea of human rights undergirds both the principle of (...) non-intervention in the internal affairs of states and the idea of an international responsibility for humanitarian intervention in cases of oppression. The pre-Westphalian conception of sovereignty as moral responsibility for the common good is then examined as an alternative that avoids this dilemma, and the essay concludes by suggesting that religious ethics also has other resources that, if used, may shed useful light on resolving this problem. (shrink)

In this, the first major philosophical study of contingent pacifism, Larry May offers a new account of pacifism from within the Just War tradition. Written in a non-technical style, the book features real-life examples from contemporary wars and applies a variety of approaches ranging from traditional pacifism and human rights to international law and conscientious objection. May considers a variety of thinkers and theories, including Hugo Grotius, Kant, Socrates, Seneca on restraint, Tertullian on moral purity, Erasmus's arguments against just (...) war, and Hobbes's conception of public conscience. The guiding idea is that the possibility of a just war is conceded, but not at the current time or in the foreseeable future due to the nature of contemporary armed conflict and geopolitics - wars in the past are also unlikely to have been just wars. This volume will interest scholars and upper-level students of political philosophy, philosophy of law, and war studies. (shrink)

Since the mid-1800s, clergy, doctors, other clinicians, and military personnel who specifically facilitate their work have been designated “non-combatants”, protected from being targeted in return for providing care on the basis of clinical need alone. While permitted to use weapons to protect themselves and their patients, they may not attempt to gain military advantage over an adversary. The rationale for these regulations is based on sound arguments aimed both at reducing human suffering, but also the ultimate advantage of the nation-state (...) fielding non-combatant staff. However, this is sometimes not immediately apparent to combatant colleagues. Clinicians in the armed force are also military officers, owing a “dual loyalty” that can create conflict if their non-combatant status is not well understood. Historical examples of doctors breaching their responsibilities include prioritisation of combat capability over the rights of individual soldiers (as occurred when scarce medical resources were allocated to soldiers more likely to return to battle in preference to those most likely to die without them), use of physicians to facilitate prisoner interrogation, medical research or treatment to enhance physical performance at the expense of health, application of Medical Rules of Eligibility according to factors other than clinical need, provision of treatment contingent upon support for military objectives, and use of medical knowledge to enhance weapons. However, not being a combatant party to a conflict does not imply that the non-combatant clinician cannot act in the national interest. Indeed, by adhering to the same universal ethics as their civilian colleagues, military clinicians provide optimal care to their own troops, facilitate freedom of action in host nations, and build positive international relationships during the conflict and in the post-conflict state. (shrink)

The laws are not silent in war, but what should they say? What is the moral function of the law of armed conflict? Should the law protect civilians who do not fight but help those who do? Should the law protect soldiers who perform non-combat functions or who may be safely captured? How certain should a soldier be that an individual is a combatant rather than a civilian before using lethal force? What risks should soldiers take on themselves (...) to avoid harming civilians? When do inaccurate weapons become unlawfully indiscriminate? When does 'collateral damage' to civilians become unlawfully disproportionate? Should civilians lose their legal rights by serving, voluntarily or involuntarily, as human shields? Finally, when should killing civilians constitute a war crime? These are the questions that Law and Morality at War answers, contributing to a cutting-edge international debate. Drawing on the concepts and methods of contemporary moral and legal philosophy, the book develops a normative framework within which the laws of war and international criminal law can be evaluated, criticized, and reformed. While several philosophical works critically examine the moral status of civilians and combatants, this book fills a gap, offering both an account of the laws of war and war crimes, and proposing how the law could be improved from a moral point of view. (shrink)

This article asks how military ethics should respond to adversaries deliberately conducting hostilities below the threshold of war. Three options are considered: a novel, limited force paradigm; an expanded hostilities paradigm, i.e., within the law of armed conflict; and an international law enforcement paradigm derived primarily from human rights law. None is problem-free. Mindful of under-deployed classic just war reasoning arguments for discrimination between vices opposed to peace, this article argues against an expanded hostilities paradigm and shows (...) that the retributive, ‘equilibrium of justice’ test used sometimes to support such an expansion is necessary but not sufficient. It explains the need for further examination of whether/how Aquinas and his interpreters can/should conceive of actions under the paradigm of war occurring against non-state actors. (shrink)

This book argues that the risk of harm in armed conflict should be divided equally between combatants and enemy non-combatants. International law requires that combatants in war take 'all feasible precautions' to minimise damage to civilian objects, injury to civilians, and incidental loss of civilian life. However, there is no clear explanation of what 'feasible precautions' means in this context, or what would count as sufficiently minimised incidental harm. As a result, it is difficult to judge whether (...) a particular war or offensive actually satisfies this requirement. Just war theorists often consider it common sense that merely not intending to harm innocent civilians is not sufficient, but there is little clarity in the literature regarding what this means. One crucial question that is almost always overlooked is that of what the appropriate baseline distribution of risk should be. This book defends the Minimal Harm Requirement, which states that combatants should make an effort to reduce merely foreseen harm to enemy non-combatants to the lowest reasonable level. In order to assess which risk impositions are reasonable, and which are not, an egalitarian baseline should be adopted, suggesting that other things being equal risk of harm should be distributed equally between just combatants and unjust non-combatants. This book will be of much interest to students of just war theory, ethics, security studies, and international relations. (shrink)

Dual Use Research of Concern (DURC) has been well analyzed regarding the life sciences. This article explores the topic of younger fields of medical research and their potential for misuse, especially in the military context. The areas of research considered are artificial intelligence, neurotechnology, and neuroenhancement. Each of these areas have brought forward highly promising new research. However, in light of the current armed conflicts in Europe and in the Middle East, there is a need to consider what the (...) potential harmful consequences of medical research are. Using the example of war, this article demonstrates various instances of how current medical research could be—or is being—misused and discusses various possible solutions to the dual use dilemma. The main finding is that there needs to be a more concise and international effort to prevent the misuse of research. The raising of awareness in the general medical research community for the topic of DURC is one of the simplest steps that should be undertaken in order to ensure the non-maleficence of global research. Additionally, considering the potentially far-reaching consequences of DURC, it is time to consider the introduction of a new intergovernmental agency to monitor research and establish safeguards in order to cover all fields of research. (shrink)

Collectivist accounts of the ethics of war have traditionally dominated just war theory (Kutz 2005; Walzer 1977; Zohar 1993). These state-based accounts have also heavily influenced the parts of international law pertaining to armed conflict. But over the past ten years, reductive individualism has emerged as a powerful rival to this dominant account of the ethics of war. Reductivists believe that the morality of war is reducible to the morality of ordinary life. War is not a special (...) moral sphere with its own special moral rules. Reductivists typically reject a collectivist approach to the morality of war in favor of an individualist view, according to which individuals (rather than states or other collectives) are the proper focus of moral guidance and evaluation. This view holds that the rules governing killing in war are simply the rules governing killing between individuals, most obviously the rules of self-defense and other-defense (Fabre 2009; Frowe 2014; McMahan 2009; Tadros 2014). -/- This chapter defends reductive individualism against the claim that it is unable to sanction wars of national defense that seek to protect non-vital interests. These non-vital interests include political goods such as the defense of sovereignty—that is, of political and territorial integrity. (shrink)

Different societies came to consider certain behaviors as morally wrong, and, in time, due to a more or less general practice, those behaviors have also become legally prohibited. While, nowadays, the existence of legal responsibility of states and individuals for certain reprehensible acts committed during an armed conflict, international or non-international, is hard to be disputed, an inquiry into the manner in which the behavior of the belligerents has come to be considered reveals long discussions in (...) the field of morals and theory of morality, and, especially, regarding the different manner of establishing the elements to whom obedience is rather owed (the divinity, the sovereign, the law) and the relations between these. Hence, the present paper aims at analyzing the connections between moral responsibility and legal responsibility for wrongful behaviur during war in a diachronic approach, along with the major shifts in paradigm (codification and individual liability). Understanding morality as practice, convention, custom, we are arguing that the nowadays requirement of liability for war crimes appeared due to an assumed intention and practice of the decision-making entities (the sovereign, the state) and, ultimately, to a decision-making process of the most influential states. (shrink)

Combatants who attempt to obey the laws of war often have to take considerable risks in order to effectively discriminate between legitimate and illegitimate targets. Sometimes this task is made even more complicated by systemic factors which influence their ability to discriminate effectively without unduly risking their lives or the mission. If they fail to do so, civilians often pay the price. In this paper, I argue that to the extent that non-combatants benefit from the attempt to fight justly, and (...) to the extent that wars in which combatants attempt to fight justly can be understood as a system of social cooperation which produces both burdens and benefits, non-combatants have a responsibility to shoulder their fair share of these burdens. Thus, if combatants (and by extension enemy non-combatants) are disproportionately burdened in a conflict, non-combatants ought to take on some costs, for instance in order to reduce the strain imposed on combatants by systemic factors such as the availability and distribution of resources. (shrink)

There is increasing speculation within military and policy circles that the future of armed conflict is likely to include extensive deployment of robots designed to identify targets and destroy them without the direct oversight of a human operator. My aim in this paper is twofold. First, I will argue that the ethical case for allowing autonomous targeting, at least in specific restricted domains, is stronger than critics have acknowledged. Second, I will attempt to uncover, explicate, and defend the (...) intuition that even in this context there would be something ethically problematic about such targeting. I argue that an account of the non-consequentialist foundations of the principle of distinction suggests that the use of autonomous weapon systems is unethical by virtue of failing to show appropriate respect for the humanity of our enemies. However, the success of the strongest form of this argument depends upon understanding the robot itself as doing the killing. To the extent that we believe that, on the contrary, AWS are only the means whereby those who order them into action kill, the idea that the use of AWS fails to respect the humanity of our enemy will turn upon an account of what is required by respect that is essentially conventional. Thus, while the theoretical foundations of the idea that AWS are weapons that are “evil in themselves” are weaker than critics have sometimes maintained, they are nonetheless sufficient to the task of demanding a prohibition of the development and deployment of such weapons. (shrink)

This chapter asks a similar set of questions regarding necessity and the duty to capture, that is, whether necessity requires an attacking force to attempt capture prior to initiating a lethal strike. There is no such duty codified in existing legal obligations, at least not where jus in bello is concerned. However, restrictions on the use of overwhelming force might be found in a reinvigorated jus ad bellum obligation on the part of attacking forces to cease an attack when the (...) necessity giving rise to the armed conflict has evaporated because the enemy nation has been so decimated that they are incapable of constituting a national threat anymore. Finally, this chapter also asks whether it would be morally advisable to amend the codified rules of jus in bello to require non-lethal attacks in limited and carefully circumscribed contexts. (shrink)

This article develops a model first proposed in my book Jurisprudence and communication [67]. It takes as its starting point the generally conception that legal rules are valid norms, involving a normative content and expressing themselves in reality through observable conduct. This dualistic character of law is central. Law is both fiction and factual, ideal and real. But the viewpoint that a legal rule is a manifestation of validity in reality, through empirical acts, raises the question how rules as (valid) (...) fictions can be known and understood in their linguistic form. How is meaning attributed to the legal words and how do these words relate to the world of fact? Taking an institutional-pragmatic approach as a starting point, an analytical model is created that can be used as an instrument for the relationship between legal rules as thought objects existing only in the mind, and legal rules as observable conduct. This model seeks to revise the classical models of legal communication that basically focus on the unilateral flow of legal information between ‘senders and receivers’ and their claim of linear causality between rules and conduct. The model here constructed in the theoretical part is then applied to several case studies, in order to analyze the construction of meaning in actual use. Two fundamental rights—the older codified in 1798 and the more recent codified in 1983—in the Dutch Constitution have been analyzed using the model as an instrument. Further, the remarkable shifts in article 96 of the Constitution, the declaration of war, and its consequences, resulting in a new category of war—the armed conflict—have been analyzed, as well as the phenomenon of ‘peacekeeping missions’ involving actual warfare. The new war terminology has created vagueness with respect to the clear-cut division between war and peace, which has been reflected in several cases before Court, including the Eric O. case. The present analysis of the case studies indicates that the model was not in all cases completely tailored to the facts: for example, in the case study on article 96 a broad spectrum of observable legal and non-legal actors dominated the facts in such a way that the model did not fully cover it. The observations on my book by the three respondents in this special issue have contributed to the adaptation and extension of the model. In the Postscript my responses suggest some ways in which their ideas can be implemented. (shrink)

The ongoing conflict in Ukraine constitutes a poignant reminder of the enduring relevance and potential devastation associated with nuclear weapons. For decades, the possibility of such catastrophic conflict has not seemed so imminent as in the current world affairs. -/- This contribution presents a comprehensive analysis of nuclear strategy for the 21st century. By examining the evolving geostrategic landscape the talk illuminates key concepts such as nuclear posture, credible deterrence, first & second strike capabilities, flexible response, EMP , (...) variable yield, counterforce & countervalue, limited war and escalation dominance, thereby providing a nuanced understanding of the delicate balance of power in the nuclear arena in modern conflicts. Furthermore, it concentrates on the era that started with the war in Ukraine, offering insights into how recent geopolitical developments influence nuclear doctrines. -/- Through conceivable real-world scenarios, we gain perspective on the multifaceted challenges posed by newer technologies and potential escalation dynamics involving global nuclear actors. -/- Such scenarios include: -/- 1. A non-weaponised or sub-critical test within Russia to intimidate opponents into understanding Russia’s resolve and capabilities. Prior norms have restricted testing since 2000, apart from North Korea. In case of a full surface test, Russia could detonate in uninhabited areas within its own vast territory with minimal fallout. While clarifying military strength, demonstrations risk hardening resistance without incentivising surrender. -/- 2. Coercive atomic threat to compel Ukraine or its supporters to make concessions. By leveraging the spectre of nuclear warfare, Russia could expect to achieve its objectives through intimidation and fear. However, the effectiveness of such a strategy is questionable, as it may provoke a strong international response and further galvanise support for Ukraine. -/- 3. Demonstration detonation over/under the Black Sea to signal resolve without targeting Ukraine itself; possibly amidst negotiations to gain diplomatic leverage, whilst limiting human casualties to zero or causing a mild, non-destructive tsunami. -/- 4. Ukraine could decide to launch a pre-emptive strike on Russian nuclear facilities or weapons, fearing an imminent attack. Such an action would have a high risk of failure and might even provoke a nuclear retaliation from Russia. It could also lead to a broader conflict, as neighbouring countries might feel compelled to intervene. -/- 5. Limited tactical strike against Ukrainian military or infrastructure to weaken capacity and morale. Russia’s 2000+ non-strategic arsenal could target positions using short-range missiles with 0.3 – 5 kiloton yields. Objectives like crippling Kharkiv defences might create no-go zones hindering advances. However, Ukraine might maintain drone and cyber offensive capabilities regardless. -/- 6. Electromagnetic Pulse attack designed to disable critical infrastructure in Ukraine and NATO countries without radioactive fallout. This aims to hinder the war effort and economy without provoking the same conventional military response as a blast. However, an EMP attack affecting NATO shall still be considered an act of war warranting retaliation. -/- 7. A weapon could be deployed accidentally or without proper authorisation. This could occur due to a technical malfunction, miscommunication, human error, or the actions of rogue elements. The consequences of such an event could be catastrophic, leading to a rapid escalation of the conflict and potentially triggering a global crisis. -/- 8. Sub-strategic offensive targeting NATO in the European theatre, so as to fracture allied resolve, against arms routes in Poland, Baltic stockpiles, British naval bases, American troop concentrations in Germany etc. Putin may perceive defeat or deposition as an existential threat, viewing such an option as self-preservation despite adverse consequences. -/- . (shrink)

In lieu of an abstract, here is a brief excerpt of the content:MARCHING AND RISING: THE RITUALS OF SMALL DIFFERENCES AND GREAT VIOLENCE Byron Bland Center ofInternational Strategic Arms Control What is really needed is the decommissioning of mind-sets in Northern Ireland. (Report of the International Body on Arms Decommissioning: The Mitchell Report, January 24, 1996) The 1996 Orange Marching season brought a major setback to peace process in Northern Ireland. On the Garvaghy Road in the Drumcree community of (...) Portadown, Protestants and Catholics displayed the mutual intolerance and intransigence for which they are notorious. Within each camp, a contagion of ill-will took hold, metamorphosing ancient malice into modern hatred. A volatile fog, toxic with recriminations and threats, descended upon the countryside. The battlelines drawn at Drumcree energized other historical points ofconfrontation across the province. Just as the plucked string of a musical instrument sets the all the others vibrating harmoniously, so the cord struck in Portadown sounded the key to a counterpoint that seemed almost primordial. As the tragic notes of the final measures faded, a numbing silence enveloped a society once again stunned by the violence unleashed within its soul. It was as if the North of Ireland looked at the prospect of peace and announced that it was not going to take it lying down. A strangely 102Byron Bland irrational logic seemed to drive events. Viewed from afar, it never should have happened. Neither Protestants nor Catholics stood to gain anything of tangible value. Only in retrospect—from the finale once the standoff had energized every potential division backwards—do substantive political issues emerge. However, this collapsing of events obscures the interactive process from which this mishap arose and leaves the central and confounding mystery unsolved: how did a dispute about nothing so quickly become a conflict about everything? The answer to this enigma lies in the mimetic theory of René Girard. Sinn Fèin Party Chairman Mitchel McLaughlin parsed correctly, but not insightfully, the social dynamics of this explosive situation. Shortly before the July marching season, he affirmed the right of Protestants to march. Nevertheless, he maintained, Catholics would tolerate no triumphalism. The problem is, of course, that Protestants don't march in the abstract. They march down specific streets, passing through particular communities, toward specified locations. Their Lambeg drums boom out a terrifying cadence. Their Bowler hats, black-thorn canes, and orange sashes shout a silent message for all to hear. Without triumphalism, an Orange march is simply a pointless stroll. It is nothing—a non-event, a momentous occasion that did not happen. Orange triumphalism needs serious nationalist resistance to be more than ludicrous display ofparanoid-driven pomposity. Orange "marching" must provoke a Catholic "rising." It has to find a contumacious partner before the mimetic choreography of "not any inch" can proceed. Only then can the thundering beat of the Lambeg drum transform the contestants into violent doubles, each captivated by a spellbinding obsession with the other. From the pounding rhythms spring forth entranced rivals who are much more than mere competitors. Caught in a tragedy replayed thousands of times, Catholics and Protestants stare across the bloody boundary of small differences that separates them. Their opposition defines the mirrored sameness of their common Irishness as utterly alien. With melodramatic anticipation, both await the moment when violence seals off the expelled other and circumscribes the sacred realm of our metaphysical identity. Fully enshrined, the Protestants and Catholics of Ulster feel the fullness of their humanity. They are now complete, but sadly they are no longer whole. MarchingandRising103 History is a weapon, a poker you keep in your pocket to beat the present senseless and so reorder its alignment to the past andjustify present murder. (Kevin Toolis, Rebel Hearts) Marching and drumming make an Orange parade. The practice first entered Ireland with the arrival of "King Billy"—William of Orange in 1690. His troops—the vanguard of Protestantism—marched to the cadence ofkettle drums strapped to the backs ofhorses. When they routed the Catholic army of James II at the Battle of the Boyne, marching and drumming entered the lexicon of Protestant dominance. When the Orangemen hit the streets, they take on the identity of King Billy's Protestant troops. They triumph over the Catholics in... (shrink)

The effort to build a political economy of war without politics is finding its limits. The question now is what comes next. How to put politics back in? This article compares systematically two non-state armed groups that participate in the Colombian conflict, the main guerrilla and the paramilitary. It shows that despite their similar financial bases, they appear to exhibit systematic differences— regarding both their social composition and their internal/external behavior—and claims that the key to understanding them (...) is the set of organizational devices that each group crafts in its process of survival and growth. All this suggests that a main tenet of the early political economy of war, that all non-state armed groups can be understood as being strategically identical, is flawed. It also poses a classificatory challenge. (shrink)