Newly emerging US cyberspace warfighting concepts highlight the need to update US legal doctrine. Concepts adapted to future high-intensity, high-paced armed conflict, including command post dispersal and integration of cyberspace into other targeting domains, present opportunities to refine US understandings of the law of war attack threshold and overlooked rules applicable to destruction and seizure. The advantages of staking out clear and current opinio juris on these and other matters extend beyond providing responsible and consistent operational law advice. Updated and authoritative military cyber legal doctrine will serve the strategic and diplomatic legal interests of the United States and the international legal system as a whole.

What should be the role of law in response to the spread of artificial intelligence in war? Fuelled by both public and private investment, military technology is accelerating towards increasingly autonomous weapons, as well as the merging of humans and machines. Contrary to much of the contemporary debate, this is not a paradigm change; it is the intensification of a central feature in the relationship between technology and war: double elevation, above one’s enemy and above oneself. Elevation above one’s enemy aspires to spatial, moral, and civilizational distance. Elevation above oneself reflects a belief in rational improvement that sees humanity as the cause of inhumanity and de-humanization as our best chance for humanization. The distance of double elevation is served by the mechanization of judgement. To the extent that judgement is seen as reducible to algorithm, law becomes the handmaiden of mechanization. In response, neither a focus on questions of compatibility nor a call for a ‘ban on killer robots’ help in articulating a meaningful role for law. Instead, I argue that we should turn to a long-standing philosophical critique of artificial intelligence, which highlights not the threat of omniscience, but that of impoverished intelligence. Therefore, if there is to be a meaningful role for law in resisting double elevation, it should be law encompassing subjectivity, emotion and imagination, law irreducible to algorithm, a law of war that appreciates situated judgement in the wielding of violence for the collective.

Just war, international law, and world order are all historically conditioned realities that interrelate with one another in complex ways. This paper explores their historical development and current status while critically examining their interrelationship. It begins with exploring just war as a basic frame for analysis and interconnection with the other two realities. Just war is not an abstract body of moral thought but instead a practically informed morality of war rooted in Christian thought and law, Roman law, and the practice of statecraft. The essay notes the importance of the ideas of jus gentium and jus naturale in just war's fundamental formation, as well as the parallel between its three basic features—sovereign authority, just cause, and the end of peace—and the three goods or ends of politics as classically defined, namely, order, justice, and peace. The essay then moves out to explore the historical and thematic relations between just war tradition and international law, especially the law of war, arguing that these together define a moral and legal structure that is normative for world order. The final section of the paper considers the functioning of the institutions of world order in the context of challenges from rival cultural understandings of war, law, and world order and from the rise of nonstate actors in the international sphere, arguing for dialogical efforts aimed at strengthening both the moral and legal basis for world order against contemporary threats to that order.

This essay examines the similarities, but even more the dissimilarities, between (nonrevisionist) just war theory and the laws of war. The similarities are obvious: both just war theory and the laws of war distinguish jus ad bellum from jus in bello, and incorporate the principles of distinction, proportionality, and necessity. The dissimilarities derive from the special character of law. Law needs binary, yes-no standards for drawing lines, for example between armed conflict and lesser forms of violence. Laws come in packages (regimes), so that changing only one law is not always practicable. And legal propositions, unlike philosophical propositions, are often detachable from their reasons and applied in unexpected and unwelcome ways. This is especially important in the stresses of battle, when rules of warfare must be usable “off the shelf” by middle- or lower-ranked personnel with no opportunity for bespoke deliberation. The essay provides contemporary illustrations of these differences.

If people have a right to rebel against domestic tyranny, wrongful foreign occupation, or colonial rule, then the normative principles commonly invoked to deal with civil conflicts present a problem. While rebels in some cases might justifiably try to secure human rights by resort to violence, the three normative pillars dealing with armed force provide at best only a partial reflection of the ethics of armed revolt. This article argues that (first) the concept of “terrorism” and the ongoing attempt to define it in international law, (second) the laws of war and their application to armed conflict, and (third) the Responsibility to Protect all obscure as much as clarify the problem. Given the prevalence of political oppression and the occurrence of civil conflicts originating in attempts to confront it, there is therefore a pressing need to establish a place for the rights of rebellion in the international normative architecture.

Advances in military technology have led many, including the developers of such technology, to propose new regulation. International lawyers have extensively examined the adequacy of the existing law to address emerging technology, but they have devoted relatively little attention in these analyses to the prior development of the law as a result of, or despite, technological change. This essay highlights two challenges that those wishing to undertake such an exercise might encounter. The first of these is the general paucity of serious engagement with the history of international law applicable in armed conflicts and the perpetuation of a particular “origin myth” of international humanitarian law. The second challenge has to do with the controversies about the impact of technology on society in general, and the impact of military technology on warfare in particular. Nevertheless, the essay concludes by pointing towards some of the insight that might be gained from a more history-conscious analysis of the relationship between technology and law in the military context.

An examination of the growing literature on the topic of the geography of armed conflict suggests that the differences of opinion, between and among academics, policymakers and military lawyers, for example, are nearly intractable. Statements about the propriety of a certain target under the law of armed conflict are often met by pronouncements regarding the role of jus ad bellum in cabining the use of force in the territory of another state or the restrictive parameters of the international human rights/law enforcement regime for addressing individuals who pose a threat or danger to others. Indeed, one might easily conclude that the participants in these debates are simply operating in entirely separate analytical paradigms, leading to interesting and challenging intellectual discussions but not to productive conversations that advance the analysis and move beyond the debate to effective potential resolution of a complicated and multi-layered issue. However, unlike pornography or terrorism, where notwithstanding a myriad of different definitions, “you know it when you see it”, little agreement exists even on whether there is a specific, definable geography of armed conflict at all. To help move beyond this impasse, this article explores the presumptions underlying the ongoing debates regarding the geography of armed conflict, in an effort to untangle the debates and provide new opportunities and venues for discussion—and thus to help advance the development of the law of armed conflict and other relevant bodies of law. These presumptions appear in particular in four dichotomies that inherently help drive the debates but are brushed aside or not taken into consideration: law versus policy; authority versus obligation; territory versus threat; and submission of the collective enemy versus elimination of an individual threat. For each or any of these dichotomies, the lens through which one views the contrasting positions will then have a significant—if not determinative—effect on considerations and conclusions regarding questions of geography and the battlefield. As a result, recognizing these dichotomies and understanding how they impact the current discourse is critical to any effective conversation, whether in the academic or policy arenas.

The principle of proportionality, notoriously obscure in application and subjective in interpretation, has been enforced so rarely as to call into question its potency as a meaningful international legal standard. Nonetheless, international criminal tribunals, academics, and the ICRC's monumental study on customary international humanitarian law all confidently proclaim the principle as embedded in the customary international law applicable to both international and non-international armed conflicts. To assess whether these claims are accurate, and to flesh out how states interpret the principle in practice, the author and a colleague have undertaken a long-term, multinational empirical study of state practice in interpreting and enforcing the proportionality principle. This article discusses the methodological options available and explains the one chosen for the proportionality study. The limitations of the study, in spite of its deliberate methodology, suggest that the debilities of the proportionality principle may not be conceptual as much as a byproduct of unnecessary military secrecy. This article concludes that greater transparency in state compliance with the rule of discrimination and the principle of proportionality would, at least, facilitate an understanding of how the hitherto obscure principle operates in practice and, at best, could create systemic effects that would decrease the dangers to civilians in armed conflicts.

Warfare at Sea — Hospital Ships — Hague Convention No. X.

Law of War — War Crimes — Defence of Superior Orders — Torpedoing of Hospital Ships — Hague Convention No. X.

Law of War — Enemy Occupation — Act of Occupying Authority — Confiscation quoad usum.