Dale Stephens

The lawful use of force by peacekeeping forces: the tactical imperative

The initiation of numerous UN peace operations by the Security Council since the end of the Cold War has been bolstered by strongly worded and finely crafted resolutions. However, the emphasis placed in such resolutions on restoring peace and security by ‘all necessary means’ loses its resonance when UN troops are constrained by their national law from employing sufficient force to achieve mission objectives. The growing body of literature heralding Security Council capacities at the strategic level seems oblivious to the more prosaic question of legal authority at the tactical level. The UN ‘model’ Rules of Engagement generally follow a ‘boilerplate’ formula that may or may not be appropriate to the purpose. This is compounded by differing institutional perspectives on the ‘authority’ of UN Rules of Engagement to authorize specific uses of force in particular circumstances, especially when such rules conflict with the national law of the troop contingent in an area of operations. This article advances arguments to overcome these difficulties and highlights opportunities for reform to better ensure realization of Security Council goals.

'Flying Under the Radar'. The Use of Lethal Force Against Hijacked Aircraft: Recent Australian Developments

The use of lethal force to prevent terrorist attacks raises a range of legal, moral and policy challenges. This note examines recent legislative changes in Australia which empower the military to use lethal force against hijacked aircraft. These special powers are contained in Part III AAA of the Defence Act 1903 (Cth), which deals with the ‘call out’ of the military in aid of civil power. These powers to use reasonable and necessary force depart from the conventional criminal law doctrines of necessity and self defence, embracing a broader national security paradigm. This paradigm shift is reflected in the inclusion of powers to use lethal force to protect designated critical infrastructure and a special defence of superior orders. As the note concludes, these reforms reveal the growing influence of international law, particularly the law of armed conflict, on the development of domestic criminal law in Australia.

THE TARGETING OF CIVILIAN CONTRACTORS IN ARMED CONFLICT

The modern Law of International Armed Conflict is principally framed upon a linear notion of warfare. It classically anticipates massed armies engaging one another upon the battlefield where victory is achieved by way of decisive military defeat of one side by the other. The targeting philosophy underpinning this paradigm is that civilians are to be spared to the greatest extent possible during the course of the conflict. Concomitantly, military force is to be applied in a surgical and economic manner mainly against the sovereign forces of the enemy as well as defined ‘military objectives’, with the law being relatively comprehensive as to the character of each of these categories. Under the prevailing philosophy, the law nonetheless acknowledges that where civilians vitiate their protected status and elect to participate directly in hostilities, then they might also be targeted. The paucity of legal prescription in this area strongly suggests, however, that this is regarded as a somewhat exceptional phenomenon.

Military involvement in law enforcement

Law enforcement is not a task usually undertaken by military forces, at least within domestic legal contexts. Conversely, maintaining or restoring security within dysfunctional or ‘post-conflict’ areas of operation is a role commonly undertaken by them. Within these latter operations, the skill sets and highly calibrated application of force that are commonly associated with police forces in their law enforcement role are in fact manifested in a decisively military context. This article reviews the experiences and legal frameworks associated with military participation in two separate types of mission, namely UN-sponsored peace operations and unilateral/multilateral stabilization and counter-insurgency operations. It argues that these contexts have demanded a revised interpretative approach to the applicable law, one that is much more sensitive to social and political effect.

BLURRING THE LINES: THE INTERPRETATION, DISCOURSE AND APPLICATION OF THE LAW OF ARMED CONFLICT

Despite the high density and sheer volume of the Law of Armed Conflict (LOAC), there is considerable indeterminacy within its structure. Understanding the interpretive space generated through the rules/standards dichotomy as well as through the policy/law interface resident within this indeterminacy permits greater appreciation of how LOAC is used to advance strategic goals. The purpose of this article is to examine various interpretive approaches to LOAC and to reveal the significance of such approaches to questions of both legal validity and broader considerations of legitimacy. Positivism remains the dominant interpretive idiom, but it contains vulnerabilities in its assumptions, not least is the wide malleability of language. In the current operating environment, within the counter-insurgency (COIN) context in particular, it is becoming evident that standard canons of LOAC interpretation may not be sufficient to achieve the desired military and political goals sought. Indeed recent COIN guidance concerning interpretation of LOAC reflects an approach reminiscent of the US legal realist style of the early to mid 20th century. This results in a more overt demand for greater social and political appreciation of the use of law to modulate violence.

Increasing Militarization of Space and Normative Responses

It is becoming abundantly clear that the militarization of space is occurring. New capabilities and weapons systems are being developed that will apply to Outer Space operations. Military doctrine is simultaneously being developed that will shape the manner in which such military operations will occur. Despite these developments, there is no clarity regarding how and in what manner International Law might apply in those attenuated circumstances to constrain and regulate any developing tension, hostilities or even outright armed conflict. The global community is currently in a precarious place regarding this emerging reality, and it is time that full attention is developed to understanding a normative framework that will inform international decision-making in this realm. This chapter will examine the growing phenomenon of the increasing use of space for military activity and will canvass how International Law may apply to condition behaviour. It will also provide a brief review of informal lawmaking processes that are underway to influence thinking in this area. Such informal lawmaking is principally manifested in the development of an international Manual headed by McGill University and the University of Adelaide to bring together International Government, Military and Humanitarian legal experts to develop a framework on International Law Applicable to Military Uses of Outer Space. Such a Manual will take its place alongside with others that have been developed in associated theatres of military legal endeavour (naval war, air and missile war and cyber war) and will hopefully shape and condition thinking and decision-making in this emerging and critical field of military operations.

Dredge Your Way to China? The Legal Significance of Chinese Reclamation and Construction in the South China Sea

This article examines five of the most important legal issues arising from Chinese reclamation and construction in disputed areas of the South China Sea. First, does the construction have any impact on competing territorial claims in the South China Sea? Second, does the construction affect rights to maritime zones? This involves consideration of the differing legal significance of islands, rocks, low tide elevations and artificial islands, the relevance of land reclamation and construction in this context, and the resulting implications for maritime zones including territorial seas, EEZs and safety zones. Third, are there other legal consequences arising from the Chinese activity (for example, on environmental grounds)? Fourth, does the construction bolster any potential ability of China to impose an Air Defence Identification Zone in the South China Sea? Fifth, what is the significance – legally and practically – of the award in the South China Sea Arbitration?

Introduction: Seeing Further over the Horizon — A World of Limitless Possibilities

The Life and times of Prof Judith Gardam and the role of international law and regarding the use of force.

Concluding Remarks: Establishing Common Ground between Feminism and the Military

The symposium on which this collection of chapters is based brought together feminist scholars and activists with representatives of the military of both sexes. It seemed fitting in this concluding chapter to focus on achieving a productive exchange of ideas between these two seemingly disparate sets of viewpoints. Consequently, what follows primarily reflects a conversation between feminism and the military. It inevitably has somewhat of an international humanitarian law focus as both of the authors, one a feminist academic lawyer and the other a former naval legal officer and now an academic, specialise in this particular field.

International Humanitarian Law in the Maritime Context: Conflict Characterization in Judicial and Quasi-Judicial Contexts

Introducing International Humanitarian Law to Judicial and Quasi Judicial Bodies.- Applicability Test of Additional Protocol II and Common Article 3 for Crimes in Internal Armes Conflict.- The Role of the U.S. Judicial Branch During the Long War: Drone Courts, Damage Suits, and Freedom of Information Act (FOIA) Requests.- International Humanitarian Law in the Maritime Context: Conflict Characterization in Judicial and Quasi-Judicial Contexts.- Domestic Humanitarian Law: Developing the Law of War in Domestic Courts.- The Interaction of the International Terrorism Suppression Regime and IHL in Domestic Criminal Prosecutions: The UK Experience.- Beyond Life and Limb: Exploring Incidental Mental Harm under International Humanitarian Law.- Armed Conflict and the Inter-American Human Rights System: Application or Interpretation of International Humanitarian Law? The European Court of Human Rights Engagement with International Humanitarian Law.- The Interaction between Domestic Law and International Humanitarian Law at the Extraordinary Chambers in the Courts of Cambodia.- Applying the Laws of Armed Conflict in Swiss Courts.- International Humanitarian Law in the Courts of Australia.- Aut Deportare Aut Judicare: Current Topics in International Humanitarian Law in Canada.- International Humanitarian Law in Indian Courts: Application, Misapplication and Non-Application.- Interpretations of IHL in Tribunals of the United States.- The International Commission of Inquiry on Darfur and the Application of International Humanitarian Norms.- The Mavi Marmara Incident and the Application of International Humanitarian Law by Quasi-Judicial Bodies.