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- Editorial
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Pages: 1 - 1
Abstract: As the founding editors highlighted in their December 2024 editorial, in the last quarter of a century this journal has become a primary point of reference in the field of international conflict and security law.11 As we take on the task of editorship, we understand that the rapidly changing international landscape underlines the need for continued debates and discussions involving scholars and practitioners designed to explain, analyze, critique, and ultimately strengthen, the international legal order.
PubDate: Tue, 11 Mar 2025 00:00:00 GMT
DOI: 10.1093/jcsl/kraf004
Issue No: Vol. 30, No. 1 (2025)
- Revitalizing the obligatory abstention rule in the UN Security Council: an
interpretation of the Proviso in Article 27 (3) of the UN Charter-
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Pages: 3 - 22
Abstract: AbstractAccording to the proviso in Article 27 (3) of the UN Charter, members of the UN Security Council, including the permanent members, shall abstain from voting under Chapter VI of the UN Charter if they are parties to a dispute. This obligatory abstention rule has had significant implications in recent years, especially in relation to Russia’s invasion of Ukraine. Although Russia has deviated from this rule by repeatedly vetoing draft resolutions regarding this matter, only a few demands for implementing the obligatory abstention rule has been voiced within the Council. This is somewhat understandable given the legal difficulties surrounding the obligatory abstention rule, which are responsible for the longstanding non-applications of this rule. In this context, this article explores three legal issues related to the rule in question with the goal of revitalizing obligatory abstention in the Council. First, the prolonged non-application of the obligatory abstention rule has resulted in suspicion among scholars that the rule has fallen into desuetude. Second, it has been argued that if a matter has the character of a ‘situation’ rather than a ‘dispute’, the obligatory abstention rule cannot be applied. Third, there is considerable uncertainty regarding the definition of a ‘dispute’ under Article 27 (3) and the method for determining who are considered parties to a dispute. This article mainly asserts that the obligatory abstention rule is still legally valid and that a draft resolution could serve as the basis for determining who the parties to a dispute are.
PubDate: Tue, 25 Mar 2025 00:00:00 GMT
DOI: 10.1093/jcsl/kraf002
Issue No: Vol. 30, No. 1 (2025)
- Indirect aggression and the North Atlantic Treaty
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Pages: 23 - 46
Abstract: AbstractWestern diplomats and policymakers involved in the negotiations of the North Atlantic Treaty (NAT) in the late 1940s believed that the Soviet Union would not take the risk of launching an armed attack against the western bloc in the near future. Instead, the NAT negotiators were deeply worried about Soviet ‘indirect aggression’ in the form of political infiltration, interference, and subversion, that is, hybrid operations. The question arises of why the notion of indirect aggression was eventually dropped during the NAT negotiations, whereas Article 5 on armed attack became the core provision of the treaty. The article shows that there might have been sound reasons for not explicitly mentioning the notion of indirect aggression in the treaty at the time. With hindsight, however, the failure to come to an agreement on the need to counter indirect aggression has had repercussions on the development of NATO cooperation and intelligence sharing ever since. It partly explains the difficulties that still exist in strengthening genuine intelligence and security collaboration for the purpose of preventing and countering hybrid warfare.
PubDate: Fri, 21 Feb 2025 00:00:00 GMT
DOI: 10.1093/jcsl/kraf003
Issue No: Vol. 30, No. 1 (2025)
- The use of human shields in the jurisprudence of the International
Criminal Tribunal for the Former Yugoslavia-
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Pages: 79 - 102
Abstract: AbstractThis article assesses the contribution of the International Criminal Tribunal for the Former Yugoslavia (ICTY) to a clearer understanding of the use of human shields, both as a war crime and as a violation of international humanitarian law (IHL). To date, the ICTY is the only international criminal tribunal to address multiple allegations of shielding conduct. To assess the Tribunal’s contribution, the article rigorously analyses ICTY jurisprudence concerning shielding thematically, in line with the offences under which such conduct has been charged. It demonstrates that a combination of prosecutorial policy and a failure by the Tribunal to seize opportunities to further elaborate upon shielding, has resulted in the offence developing almost exclusively through reference to other crimes. Thus, detailed discussion of shielding within the relevant judgments is scarce and there remains work to be done within the fields of IHL and international criminal law to develop the offence and clearly distinguish it from those with which it overlaps. Nevertheless, the article will argue that the Mladić trial judgment does offer a significant contribution to an understanding of human shielding. Additionally, the Tribunal’s shielding jurisprudence as a whole, despite its limitations, still proves useful as an indicator of the elements of the act that require further development as an international crime, and for building a fuller understanding of the precise nature of the act as a violation of IHL.
PubDate: Tue, 25 Mar 2025 00:00:00 GMT
DOI: 10.1093/jcsl/kraf006
Issue No: Vol. 30, No. 1 (2025)
- The human rights obligations of belligerent occupiers: Israel and the
Gazan population-
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Pages: 103 - 120
Abstract: AbstractFollowing the Israeli disengagement from the Gaza Strip in 2005, the Israeli government declared that it was no longer an occupant. Even so, it redeployed its forces throughout the Strip’s external border, with entry and exit therefrom being wholly controlled by Israel’s Defense Forces. In 2024, the International Court of Justice issued an Advisory Opinion whereby it declared, among others, that Gaza, the West Bank, and East Jerusalem have been under continuous belligerent occupation that was moreover illegal. The Advisory Opinion thus confirmed that, despite Israeli statements to the contrary, it continues to be the occupying power of Gaza due to its effective control, notwithstanding physical military presence. As an occupant asserting effective control over Gaza, in addition to having an obligation to provide humanitarian guarantees under international humanitarian law to the civilian population in Gaza, Israel has a duty to provide fundamental human rights (HR) under international human rights law. Even if Israel were not considered an occupant of the territory, the amount of Israeli control over the Strip would certainly trigger the extraterritorial application of HR treaties and the full gamut of cascading obligations inherent therein.
PubDate: Mon, 06 Jan 2025 00:00:00 GMT
DOI: 10.1093/jcsl/krae018
Issue No: Vol. 30, No. 1 (2025)
- Inherited obstruction: the complaint procedure under the Biological
Weapons Convention and the UN Charter rule on obligatory abstention in the
Security Council-
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Pages: 121 - 138
Abstract: AbstractIn November 2022, the UN Security Council rejected a draft resolution, tabled by Russia, which sought to initiate an investigation into allegations of purported non-compliance by the US and Ukraine with their obligations under the Biological Weapons Convention (BWC). Using this episode as a point of departure, the present article takes a closer look at the BWC’s complaint procedure and the role allocated therein to the Security Council. The piece commences with a detailed account of Russia’s first-ever invocation of Article VI BWC, followed by an examination of the normative interplay between the Convention’s complaint mechanism and Chapter VI of the UN Charter. The article then turns to the ‘obligatory abstention rule’ enshrined in Article 27(3) of the UN Charter and its potential to address the concern that the BWC’s complaint procedure is de facto a dead-end for complaints against a permanent member of the Security Council. The analysis suggests that while greater adherence to the obligatory abstention rule by the Council could potentially enhance the fairness and effectiveness of the BWC’s complaint mechanism (particularly at the fact-finding stage), too much hope should not be placed in a possible reactivation of the rule. The inherent limitations of the rule, coupled with ambiguous procedures for determining its application in a particular case, ultimately leave ample room for the P5 to keep their sacrosanct veto power intact.
PubDate: Wed, 22 Jan 2025 00:00:00 GMT
DOI: 10.1093/jcsl/kraf001
Issue No: Vol. 30, No. 1 (2025)
- The Newport Manual: The new kid on the block on the laws of naval warfare
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Pages: 139 - 159
Abstract: AbstractThe Newport Manual on the law of Naval Warfare, prepared by a group of naval law experts, is a new publication that helps navigate what the law is in naval warfare. This is helpful because this area of the laws of armed conflict has always been in an ever-existent state of crisis. The Newport Manual touches on a number of topical issues, discusses subjects that have not been dealt with in the form of an expert manual, and contains a critical view towards the San Remo Manual on the International law Applicable to Armed Conflicts at Sea. This article discusses the background and aim of the Newport Manual, compares the main differences between the Newport Manual and the San Remo Manual, and highlights four other noteworthy issues in the Newport Manual.
PubDate: Mon, 13 Jan 2025 00:00:00 GMT
DOI: 10.1093/jcsl/krae020
Issue No: Vol. 30, No. 1 (2025)
- The Charter of the United Nations: A Commentary Bruno Simma,
Daniel-Erasmus Khan, Georg Nolte, and Andreas Paulus (editors), Donald
Riznik (Associate Editor), Jan Philipp Cludius and Matthias Lippold
(Assistant Editors)-
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Pages: 161 - 166
Abstract: The Charter of the United Nations: A CommentarySimmaBruno, KhanDaniel-Erasmus, NolteGeorg, and PaulusAndreas (editors), RiznikDonald (Associate Editor), CludiusJan Philipp and LippoldMatthias (Assistant Editors), 4th edn, Oxford University Press, Oxford, 2024, two vols. (clxix, xxiii, 3120 pp.). ISBN 978-0-19-286452-9. £495.00
PubDate: Tue, 07 Jan 2025 00:00:00 GMT
DOI: 10.1093/jcsl/krae019
Issue No: Vol. 30, No. 1 (2025)
- Ethical Dilemmas in The Global Defense Industry: Ethics, National
Security, and the Rule of Law Daniel Schoeni and Tobias Vestner (eds)-
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Pages: 166 - 173
Abstract: Ethical Dilemmas in The Global Defense Industry: Ethics, National Security, and the Rule of LawSchoeniDaniel and VestnerTobias (eds), Oxford University Press 2023, United States of America. ISBN: 978-0-19-067581-3 (hardback), 536 pages. RRP £135.00
PubDate: Fri, 21 Mar 2025 00:00:00 GMT
DOI: 10.1093/jcsl/kraf005
Issue No: Vol. 30, No. 1 (2025)
- Reconceptualizing the meaning of indirect force and the scope of its
regulation under international law-
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Pages: 47 - 77
Abstract: AbstractThe preponderance and transformation of state use of indirect force continues to raise conceptual questions about defining which indirect acts of a state will fall within the scope of Article 2(4) of the United Nations Charter. The above problem of clarity is tied to the nature of indirect force itself, which is often predominantly carried out in secrecy. As such, it is often difficult to identify the aiding state or trace the chain of causation directly to that state. The ICJ’s traditional (narrow) conception of indirect force has not helped in clarifying this grey area of international law. This article argues that this traditional framing of the meaning of indirect force under international law is problematic in that it fails to show why assistance to groups or to state(s), if involving arming and training against a target state, should be conceptually different from other forms of assistance involving logistical or financial support if both scenarios involved the aiding state(s) positively assisting the attacker. By viewing this practice through both doctrinal and critical theoretical lenses, particularly in the context of Critical Legal Studies, incorporating Indeterminacy theory and Third World Approach to International Law, this article seeks to demonstrate that the inadequate scrutiny of the state use of indirect force can be attributed to the inherent weakness of positivist legal frameworks in accommodating the tensions between state sovereignty and state power. This article proposes a broader (yet balanced) approach that incorporates a constructive knowledge parameter to account for positive indirect acts of offending states that are excluded under the current traditional framework.
PubDate: Thu, 26 Dec 2024 00:00:00 GMT
DOI: 10.1093/jcsl/krae017
Issue No: Vol. 30, No. 1 (2024)
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