Chagos: Re-Awakening the Ghost of the 20th Century 

Ankit Malhotra considers the story of Britain’s last colony in Africa and the International Court of Justice’s Advisory Opinion on the Chagos Archipelago.  


‘Ghost’ is a concept largely evoked in the age of decolonisation, referring to the quest for self-determination; the re-awakening refers to the Chagossian quest to seek re-enjoyment of their land. Reference to this can be found in other contexts of decolonisation too. In addition, this summer, Mr Phillipe Sands QC’s course, ‘Colonialism: A Short History of International Law in Five Acts’ spoke directly to the colonial legacy at the Hague Academy of International Law. As Sands spoke, the images on the screen projected emotive illustrations of a small woman gradually advancing towards the Great Hall of Justice in The Hague. This note discusses the International Court of Justice’s Advisory Opinion (AO) in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 towards the ghost of decolonisation. The key tenet in the case was the determination of decolonisation and the sovereignty of a State. Sovereignty is embedded as a general principle of international law under Article 2(1) of the United Nations (UN) Charter and customary international law. In addition, it found resonance and formidable support in the United Nations General Assembly (UNGA) Declaration on the Granting of Independence to Colonial Countries and Peoples (UNGA Resolution 1514 (XV)). The Declaration is credited with condemning colonialism and all forms of the subjection of peoples to alien domination and exploitation as a denial of the UN Charter and fundamental human rights, as well as calling for the Member States to take steps to implement decolonisation.  


The Chagos Archipelago comprises a chain of 60 islands in the Indian Ocean. In 1965, the United Kingdom severed the Chagos Archipelago from neighbouring Mauritius to form part of British Indian Ocean Territory. What followed was a mass expulsion of the population from the Chagos Islands to Mauritius and Seychelles and in 1968 Mauritius gained independence. These forcible evictions cleared the coast, literally and metaphorically, for the British to lease the biggest island of the Archipelago, Diego Garcia. The British employed Diego Garcia as a military satellite to monitor the Indian Ocean and the Far East. Given the highly important military information available, natives’ entry was barred.   

The eviction of Chagossians was challenged in the British courts. The English Divisional Court and the Court of Appeal initially held that the Chagossian evacuation law was unlawful. Foreign Secretary Robin Cook, in 2000, withdrew the previous order , enabling the Chagossians to return home. However, the subsequent British Indian Ocean Territory (Constitution) Order 2004 reinstated the Chagos Islands’ restrictive measures. A second complaint was launched, claiming that this Order was likewise ultra vires. In addition, it was argued that the British Government breached the legitimate expectations of the Chagossians by passing the second Order after creating the impression that they were free to return home.  In Bancoult v Foreign Secretary (No 2) [2008] UKHL 61, the House of Lords held that the new Order was lawful and that considerations of national security and international relations prevented the Court from reviewing the new Order. The English High Court subsequently held that the prohibition, punishment and removal (including by the use of such force as is reasonable in the circumstances) of ‘unauthorized’ entry and presence was permitted in British Indian Ocean Territory.  In 2015, Bancoult sought leave to appeal to the UK Supreme Court on the basis that the ruling should be overturned owing to the non-disclosure of a 2002 feasibility assessment on Chagos Island resettlement, which was declined by the Supreme Court.

Designing the intelligence of a future day: International Law

All this changed in 2017 when the UNGA challenged the British control and claims to sovereignty over the islands by requesting an AO from the International Court of Justice (ICJ).  In its AO, the ICJ held that ‘the United Kingdom is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible’. The Court recognised the principle of equal rights and self-determination of peoples as one of the purposes of the UN Charter, recalling the afore-mentioned UNGA resolution 1514(XV) and subsequent versions of it. Moreover, the Court noted that the adoption of UNGA resolution 1514(XV) represented a defining moment in the consolidation of State practice on decolonization’ and that ‘[b]oth State practise and opinio juris at the relevant time confirm the customary law character of the right to the territorial integrity of a non-self-governing territory as a corollary of the right to self-determination’. The Court considered that the peoples of non-self-governing territories are entitled to exercise their right to self-determination about their territory as a whole, the integrity of which must be respected by the administering Power. In India’s Written Statements, Ambassador Venu Rajamony emphasised the principle to uphold the process of decolonisation and respect for the sovereignty of nations. He also stressed that British inaction was the motivation for Mauritius to come before the ICJ through the UNGA. Australia, in contrast, contended that the Court is did not have  jurisdiction to issue an Opinion or, in the alternative, that the Court should not due to the lack of a ‘compelling reasons’ to do so. 

Next in the International Tribunal on the Law of the Sea (ITLOS) Special Chamber, the ICJ AO was considered in the maritime delimitation of Mauritius and the Maldives; the Special Chamber declared that the Chagos Opinion  had definitively resolved the contested sovereignty dispute. To clarify, the Special Chamber in this instance did not apply the AO in settling the dispute between Mauritius and the UK (which was not a party to ITLOS proceedings); it simply noted that the ICJ’s Opinion ‘has ramifications for the legal status of’ the Chagos Archipelago. Second, the ‘legal effect’ of the Opinion in resolving such a disagreement is not necessarily the same as the ‘legal consequence’ of imposing a judgement on the parties. Although it may be feasible for legally enforceable choices to have such an effect, it is not immediately obvious. Thus, irrespective of the binding nature of the ruling, the resolution of a sovereignty issue necessitates an additional legal step (of decolonisation), which appears to be absent here. Oxman warns (at [32]) that ‘it risks complicating…the ICJ’s exercise of its discretion about AO requests.’  

From a legal standpoint, a significant amount will rely on whether other judicial bodies adopt similar arguments. We may see more decisions awarding Advisory Opinions’ legal effect. Nonetheless, this may be an isolated incident; a bit of legal sorcery that allows the Special Chamber to disregard jurisdictional hurdles based on a discredited colonial argument. It would not be the first time courts with a clear moral imperative and legal context have deployed such legal imperfections.  In the present instance, it indicates that Mauritius has succeeded in going to a hearing on the merits and could soon add yet another favourable international legal ruling to its increasing docket. On a deeper reading, it becomes evident that the Chagos AO emphasises the determination of the crystallisation of ‘right to self-determination’ as a customary right, despite an objection from the British. However, the AO lacks an investigation of state practice and opinio juris. In the context of Resolution 1514 (XV), the ‘defining moment in the consolidation of state practise’ based on ‘its content and conditions of its adoption’ (para 5), we have a series of unsteady assertions and equally indeterminate conclusions. Customary international law’s colonial roots are hard to shake.

Impact and status quo

Immediately following the AO, it seemed that the status quo may be unchanged for the Chagossians. The UK Foreign Office issued a statement strongly defying the AO and emphasising its non-binding nature to escape enforcement or serious consideration. One officer went as far as to suggest that ‘the (military) defence facilities on British Indian Ocean Territory help to protect people around the world from organized crime and piracy’, thus adding weight to its importance at the cost of violating human rights. In scepticism towards the AO, a spokesperson for the UK Chagos Support Association noted that while ‘certainly (the AO) is a win for Mauritius, it remains to be seen whether or not this is a win for the Chagossian people’. However, there have been indications that the ghost is re-awakening. On 22 May 2019, the UNGA voted to adopt the AO.  

The International Court of Justice advised the UNGA in May 2019 to recognise Mauritius’ sovereignty over the Chagos Archipelago and to not recognise or implement any actions taken by or on behalf of the British Indian Ocean Territory. In response, as an UN-specialised agency, the Universal Postal Union presented the issue to its primary governing body, the Congress, for a vote. Consequently, the UPU will no longer register or distribute, postage stamps issued by the ‘British Indian Ocean Territory’. By doing so, they formally acknowledged the Chagos Archipelago as an integral part of the territory of Mauritius.


The imperial ghost has, time and again, haunted former colonial empires. However, what is the legacy of the AO? That question will be added to the long list of concerns of British foreign policy.  The unfavourable verdict in the Chagos Case has shaken the roots of British dominance and questioned her authority as a staunch voice of human rights and emancipation. On the other hand, slaying the ghost of self-determination has enabled the Chagossians to seek independence. However, all things considered, the resettlement of Chagossians is uncertain, as Bagchi notes, amid legalese and jurisdictional quagmires, the battle for ‘decolonization’ was certainly won but what the AO means for the islanders remains rather obscure and unsettled. 

Ankit Malhotra is reading his Masters of Laws at SOAS University of London as the Felix Scholar.  

The Australian Institute of International Affairs (AIIA) and the Australian Branch of the International Law Association (ILA (AB)) are pleased to present the Peter Nygh Hague Conference Internship. The award will support a post – graduate student or graduate of an Australian law school to undertake an internship with The Hague Conference on Private International Law (The Hague Conference) in the Netherlands by providing funds to cover the cost of travel to the Netherlands and a contribution towards living expenses. Applications for the 2023 Nygh Internship are now open and close on 30 September 2022. Please see below for more information about the award and how to apply.

The Internship

The award will provide a post-graduate student or graduate with the opportunity to work with some of the leading private international law practitioners in the world. With over 80 members (including the European Union) representing all major regions and legal systems, The Hague Conference is a global intergovernmental organisation. A melting pot of different legal traditions, The Hague Conference aims for the ‘progressive unification’ of the various State private international law rules. The work of The Hague Conference involves finding internationally agreed approaches to jurisdiction of courts, applicable law and the recognition and enforcement of judgments. This is achieved through the development and servicing of multilateral legal conventions which respond to global needs in the areas of international commercial law and banking, international civil procedure, international protection of children, international family and family property relations, international legal co-operation and litigation as well as international judicial and administrative co-operation. Activities of The Hague Conference are coordinated by a multinational Secretariat – the Permanent Bureau – located in The Hague. The Conference’s working languages are English and French. The successful intern will work for 5 to 6 months under the direction of the Secretariat assisting with research, translation and preparation of meetings in accordance with the needs of the lawyers of the Permanent Bureau.

How to apply

Applications for the 2023 Nygh Internship are now open. Please send a letter of application addressed to the Peter Nygh Hague Conference Internship Board [email protected] or to c/- Ms. Nicola Nygh, Resolve Litigation Lawyers, level 18, 126 Phillip Street, Sydney, NSW, 2000

Applications close on 30 September 2022. The letter should include:

  • the applicant’s reasons for applying for the Peter Nygh Hague Conference Internship;
  • the benefits which the applicant expects are to be derived from the internship and the contribution which the applicant expects to make to the work of The Hague Conference;
  • the applicant’s career ambitions and how the internship will relate to those ambitions.;
  • a description of the applicant’s current research, if applicable; and
  • the dates when the applicant would be available to undertake the internship (Note: The applicant must be available to undertake the internship for 5 to 6 months. The preferred start date is the beginning of January 2023 and the preferred end date is the end of June 2023. The start date, and indeed whether the internship can be undertaken in 2023, may vary depending on what travel restrictions are in place at the time).
  • The award is for a lump sum amount, and the successful candidate will need to accept the risks and increased costs of travelling during the COVID-19 pandemic, including limited and more expensive flights (in particular into and out of Australia), government restrictions on travel, and quarantine regimes for travellers.

Please also enclose the following;

  • the applicant’s up-to-date résumé;
  • the applicant’s most recent academic transcript;
  • two letters of reference for the applicant (including at least one academic reference), with contact details of referees;
  • a copy of research work by the applicant in a field relevant to the work of The Hague Conference; and
  • any other proof of the applicant’s legal and linguistic abilities and knowledge.

Knowledge of French would be an asset but is not required. Knowledge of any other languages may also be an advantage.

Extensive further information about this opportunity is available on the AIIA’s website.

Event: International Law Sanctions and Australian Courts, 1 September 2022

The International Law Association (Australian Branch) is pleased to announce an upcoming seminar that addresses the interaction of international law sanctions against Russia with Australian law and courts.

About this event

One response to gross violations of international law is the imposition of different sanctions against an offending state. Russia’s invasion of Ukraine has precipitated far-reaching sanctions by countries across the world, including Australia. The ILA (Australian Branch), International Law Section of the Law Council of Australia and Marque Lawyers present a seminar addressing the interaction of international law sanctions with Australian law and court proceedings.


  • Dr Christopher Ward SC (6 St James Hall Chambers) on Autonomous Sanctions: Developments involving Russia
  • Danielle Kroon (Marque Lawyers) on Navigating the Australian Sanctions Regime
  • Chair: Damian Sturzaker (Marque Lawyers).

Date and time: 5pm (AEST) Thursday 1 September 2022

Location: Marque Lawyers (343 George St, Level 4, Sydney NSW 2000) or online

RSVP: via Eventbrite

Please note that the event is hosted at Marque Lawyers, with light refreshments available. Online participation is also possible and the link will be circulated to registrants just before the event.

Australian International Law Journal – Call for Submissions

The Australian International Law Journal (AILJ), published by the International Law Association (Australian Branch), is calling for papers on topics of public or private international law for its forthcoming volume.

Papers should range from between 6,000 and 12,000 words. Case notes (2,000-3,000 words) and book reviews (1,000 words) within the areas of public or private international law are also welcome.

The AILJ offers established and developing scholars the opportunity to publish high quality refereed scholarship on topics of public and private international law. The ILA is a global organisation, which plays a pre-eminent role in the progressive development of international law.  From a modest beginning in 1983 as Australian International Law News, the AILJ has become a peer-reviewed law journal of international standing.

Papers on any topic of public or private international law should be submitted by email to the Editor in Chief at [email protected]. The deadline for submissions is 30 September 2022. Accepted submissions will be published in Volume 29 of the AILJ.

See here for more information.

Events and Opportunities – August 2022


Amnesty International, Climate Justice Consultant, United Kingdom and Ireland 

Amnesty International is seeking a consultant for preparations for COP27. Applications close 14 August 2022. See here for more information. 

INTERPOL, Counsel Legal Support to Operations, Singapore 

Applications close 16 August 2022. See here for more information. 

Green Climate Fund, Associate Counsel, Incheon, South Korea 

Applications close 24 August 2022. See here for more information. 

Associate, 4-5 years PQE, Marine, International Trade & Shipping, Clyde & Co, Sydney, Australia 

See here for more information. 


Office of the General Counsel, Asian Development Bank, Manila, Philippines 

Applications close 15 September 2022. See here for more information. 


Fellowship, UN Framework Convention on Climate Change 

The UNFCCC is offering a one-year fellowship in its Legal Affairs Division for mid-career professionals who are already in a government’s employment and who are nationals of and working in a Small Islands Developing State or Least Developed Country. Applications close 12 August 2022. See here for more information.  

Call for Papers, Beyond State Consent to International Jurisdiction – From Courts to Law 

The State Consent to International Jurisdiction (SCIJ) project, funded by the Research Council of Norway and conducted at PluriCourts (University of Oslo) is issuing a Call for Abstracts for its closing conference entitled “Beyond State Consent to International Jurisdiction“. This conference has been tentatively scheduled for 29-30 September and will be held entirely online. Applications close 25 August 2022. See here for more information. 

Global Corporations and International Law: Australian Research Council Laureate Fellowship and University of Melbourne PhD Scholarship 

Applications are now open for three scholars to undertake a PhD as part of Professor Sundhya Pahuja’s ARC Laureate Program in Global Corporations and International Law. Applications close 30 September 2022. See here for more information. 


Space Café “Law Breakfast with Steven Freeland”, 11 August 2022 

In the next Space Café “Law Breakfast with Steven Freeland”, Host Steven Freeland, Emeritus Professor of International Law at Western Sydney University, Sydney and Professorial Fellow at Bond University, Australia, and Co-Host Torsten Kriening, SpaceWatch.Global’s Publisher, welcome Annie Handmer and Christopher Johnson at the wonderful and cosy Café in Washington, D.C. See here for more information. 

Micronations and the Search for Sovereignty, 11 August 2022 

Micronations and the Search for Sovereignty is the first comprehensive examination of the phenomenon of people purporting to secede and create their own country, featuring Dr Imogen Saunders (ANU, Faculty of Law) and Dr Harry Hobs (UTS, Faculty of Law). See here for more information. 

UNCLOS III and the LOSC institutions and implementing agreements, 23 August 2022 

The fourth instalment of the ANU Centre for International and Public Law webinar series on UNCLOS, moderated by Professor Don Rothwell, will focus on the institutions established under UNCLOS, including the Commission on the Limits of the Continental Shelf, and the International Seabed Authority, and the current negotiations on an international legally binding instrument on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. See here for more information. 

Launch of the International Review of the Red Cross: Emerging Voices, 15 September 2022 

Join Australian Red Cross and the International Committee of the Red Cross (ICRC) for the Australian launch of the “Emerging Voices” edition of the International Review of the Red Cross. Samuel White and Ray Kerkhove, authors of Indigenous Australian laws of war: Makarrata, milwerangel and junkarti, will be joined by a panel of First Nations scholars and Elders to discuss Indigenous warfare, Indigenous knowledge and the lessons they can offer for International Humanitarian Law (IHL). Through its focus on Indigenous Australian laws of war, this event seeks to showcase the rich but often overlooked cultural traditions in war and the continued importance they play in demonstrating the relevance and universality of placing limits on how wars are conducted. See here for more information. 

Events and Opportunities – July 2022


Senior Legal Officer, Counter-Terrorism Committee Executive Directorate – New York 

Applications close 20 August 2022: 

Legal Officer, United Nations Human Settlements Programme – Nairobi 

Applications close 24 July 2022:  

Legal Consultant, World Food Programme – Italy 

Applications close on 17 July 2022:  

Legal Specialist (Ukraine), eyeWitness (International Bar Association) – London 

Applications close 18 July 2022:  

Legal Officer, World Intellectual Property Organization, Geneva 

Applications close 22 July 2022:  

Legal Officer, World Health Organisation, Geneva 

Applications close 24 July 2022:  

Associate Strategic Litigation Officer, Open Society Justice Initiative – London, Berlin, Brussels, Nairobi, Seoul, New York, Washington D.C, Mexico City, Bogota or Rio de Janeiro 

Applications close 22 July 2022:–Open-Society-Justice-Initiative–OSJI-_JR-0002589 

Associate, Children’s Rights, Human Rights Watch – Multiple Locations 

Applications close 17 July 2022: 


Internships, various UN departments and agencies, various locations 

A variety of UN internship positions are currently open. Please see the following links for internship positions: 

Geneva – Independent Investigative Mechanism For Myanmar – Geneva:   

Legal affairs – Department of Peace Operations – Geneva:  

Legal affairs – International Residual Mechanism for Criminal Tribunals – Arusha and The Hague:  

Office of the President – International Residual Mechanism for Criminal Tribunals – The Hague:  

Department of Management Strategy, Policy and Compliance Office of the Under-Secretary-General – New York:  

Legal affairs – United Nations Environment Programme – Geneva:  

Legal affairs – United Nations Relief and Works Agency – Amman:  

Office of Legal Affairs – Incheon City:  

Legal Affairs – United Nations Office at Vienna – Vienna:  

Internship, Immediate Office of the Prosecutor International Criminal Court – OTP (Funded) – The Hague 

Applications close 15 July 2022:  

Internship – Chambers/Case Law Database International Criminal Court, The Hague 

Applications close 24 July 2022: 


Australian Red Cross Book Group: Gareth Evans 

The Australian Red Cross Book Club has regular Readings sessions. On 27 July 2022, the club will be joined by former Australian Foreign Minister Gareth Evans AC QC to discuss his new book on good international citizenship. More information here: 

ICC Young Arbitrators Forum – Side Event at the 63rd Assemblies of the Members States of WIPO – Strengthening IP Ecosystems for Sustainable Growth & Development 

On 18 July 2022, learn how strategic use of IP lead the way towards achieving sustainable development. Join business and intellectual property leaders from the ICC for and the World Intellectual Property Organization to tackle key topics. More information here:  

Swiss VYAP and Arbitral Women, Interview Series on Career Paths in International Arbitration – Session 1: Working for an arbitral institution 

The first session in a series of interviews on  career paths in arbitration will be on working for an arbitral institution with Korinna von Trotha, Executive Director of the Swiss Arbitration Centre (former SCAI) and ASA, interviewed by Andrea Roth, Senior Associate at Wartmann Merker Ltd. Register at:  

ICC YAF: Lessons from Successful Challenges to Arbitral Awards in Hong Kong 

22 July 2022. This event is designed for young practitioners interested in international arbitration. The programme will consider successful precedents for challenging arbitral awards in Hong Kong court, and the reasons why the court considers it appropriate to set aside or refuse recognition of the arbitral awards. Free event, in person in Taipei or online, delivered in English. More information here:  

The Applicability of Existing International Law to the Governance of Cyberspace 

Public event on 28 Jul 2022 in person in Singapore, RSVP by 22 July 2022. The speaker, Prof. Dapo Akande will consider whether, and to what extent, international law applies to a State’s use of information and communication technologies. More information here:  

Public International Law & Policy Group – Expert Roundtable: Presentation of Draft Legislation for a High War Crimes Court for Ukraine 

Expert Working Group for Ukraine on July 22 from 12 pm to 1 pm EDT for a presentation of its draft legislation for a High War Crimes Court of Ukraine to investigate and prosecute those allegedly responsible for atrocity crimes committed in Ukraine since February 2014.  This discussion draft intends to inform the formulation of a domestic prosecutorial mechanism that will complement the efforts by existing domestic courts, the ICC, and any future hybrid international tribunal for the crime of aggression.  During this roundtable, PILPG’s working group consisting of international and Ukrainian experts will present and discuss the draft legislation. Online and recorded, more information here:  


7th Gary Born Essay Competition on International Arbitration 

The Centre for Advanced Research and Training in Arbitration Law (CARTAL) and Indian Journal of Arbitration Law (IJAL) are conducting the 7th Gary B. Born Essay Competition on International Arbitration, 2022. The themes for this year’s competition are: 

1. Harmonising Principles on Joinder and Consolidation: Necessity or an Issue Taken too Seriously? 

2. Reconciling Arbitration with Insolvency Proceedings and Corporate Restructuring. 

3. Third-Party Funding and Disclosures in International Arbitration. 

To participate in the competition, essays must be sent to [email protected] by 23:59 hours (Indian Standard Time, GMT +5:30) on October 30, 2022. The competition is open to all law students across the globe. For more information see :  

PhD Studentship: The State Silence project, UCL Law – London 

Applications close on 4 September 2022:  

Post Doctor position in International Human Rights, Norwegian Centre for human Rights, University of Oslo – Oslo 

Applications close 29 August 2022:  

Fellowship, Legal Affairs Division UNFCC – Bonn 

Applications close on 12 August 2022:  

British Institute of International and Comparative Law – Online Short Course: Climate Change Law 

Virtual short course run over 8 Sessions: 14, 21, 28 Sept, 5, 12 ,19, 26 and 2 Nov 2022. Cost of £700 (including VAT). 

Bringing together a distinguished cohort of scholars and practitioners, the course is designed to provide participants with a working knowledge of the relevant legal frameworks as well as to enhance their understanding of the way climate change impacts other areas of international law including territory, human rights, trade and investment. More information and registration is available here:  

The Law of Yesterday’s Wars Conclusion: Sharp War or Soft War

This post is the final of a multi-part series introducing the newly published book, The Laws of Yesterday’s War. Part one considered the relevance of Indigenous Australian laws of wars to cyber. Part two examined the parallels between the Russian invasion of Ukraine and pirates and privateers in the Elizabethan era. Part three looked at the concept of ‘lawfare’ and the Lieber Code. In the final post, Samuel White (editor) discusses whether the laws of war unnecessarily promotes suffering by legitimising war. 

The recent and growing series I am editor of, The Laws of Yesterday’s Wars, benefits from a comparative study methodology that grows with each volume. I write this blog then informed through the contributions published in The Laws of Yesterdays Wars Volume 1 and forthcoming in The Laws of Yesterdays Wars Volume 2. The historic norms of war provide valuable non-Western insights into modern issues that European cultural developments bypassed. There are many different concepts that can be covered, such as the power of law as a weapon or how the laws of war can evolve in the face of the dated Mediterranean concept of peace and war.  

This blog will focus on one topic that seems to have escaped debate: whether the laws of war unnecessarily promote suffering through legitimising war. Francis Lieber made a passing assurance that ‘short and sharp’ wars were, paradoxically, more humane than the soft wars caused by the legalisation and legitimisation that the laws of war bring.  

This was a point recently raised in Samuel Moyns’ new book: Humane: How the United States Abandoned Peace and Reinvented War. Volume 1 of The Laws of Yesterday’s Wars touched on this indirectly when canvassing shock arising from the clash of British and Maori cultures. The result was the degradation of the Maori ‘first wave’ customs of war, in the face of British ‘second wave’ warfare. 

In Volume 2 of the series, Dr Špicová’s expert translation of the Mahābhārata makes clear that Ancient Indian authors believed it virtually impossible to win a war using only just means. The main battle of the Mahābhārata lasts 18 days; during the first ten days, the general of the Kauravas is Bhisma who only uses the dharmayuddha (just warfare), but after his death, warriors from both sides start to use the means of the kutayuddha (unjust or illegal warfare), and the war becomes much swifter: the second general is killed after five days, the third after two, and the fourth in a single day. The final act of the war is the night carnage of Asvatthaman where no rules apply anymore; after that, the text focuses on re-building of dharma (divine law). 

Moyn follows the progression of the legitimisation of war by the laws of war and draws analogies between the legitimisation, through the legalisation of slavery. There are important and powerful linkages to be made. Moyn, through the perspectives of Clausewitz and Tolstoy, highlights the risks of allowing soft war – that is, war regulated by law. Clausewitz is cited as having warned against the ‘kind-hearted fiction that a national could wage war without too much bloodshed’. Indeed, says Moyn through Clausewitz: 

the fact that slaughter is a horrifying spectacle must make us take war more seriously but not provide an excuse for gradually blunting our swords in the name of humanity… Sooner or later someone will come along with a sharp sword and hack off our arms. 

Clausewitz was more worried by pacifists than international law. The sole reference to international law is in one dismissive sentence: ‘[a]ttached to force are certain self-imposed, imperceptible limitations hardly worth mentioning, known as international law and custom, but they scarcely weaken it.’ To that end, Lieber – a support of Clausewitz’s sharp war construct – codified the right to deny quarter to captured persons. This act of lawfare, as Chris Bailey noted in Volume 1, was unprecedent. 

Sharp wars (those without the straightjacket of laws) have often been used to justify campaigns of terror. Denial of quarter, a particularly brutal concept only recently regulated, has remerged again in the recent Russian-Ukrainian war. On 2 March 2022, Ukrainian Special Forces announced it would no longer capture Russian Ukrainian artillerymen, but would kill them in response for their ‘brutal shelling of civilians and cities’ . 

Can we exist in a system without war? Or is war a natural part of the human condition? The author’s personal feeling is towards the latter. Even if we take the rules away, and promote sharp war, societies will always try to regulate themselves. This is, indeed, the underlying assumption of Hobbes’ state of nature and emergence of the State. Roman warfare, with its emphasis upon fides publica populi Romani, demonstrates a society without international checks and balances (after the collapse of Carthage) that still sought to regulate itself. However, this bona fides only extended to those who were recognised by the Roman State as deserving it. This, of course, is not unique: as seen in the experiences of Indigenous Australians against the legal rhetoric of the British Empire, the Aztecs against the Spanish conquistadors, Native Americans and European colonisers, or the Japanese against China after adopting European laws of war.  

Yet does the deregulation of warfare really speed up its resolution? The move by Ukrainian Special Forces would seem based in this theory; but just as readily it may incentivise Russian artillerymen to win. The subsequent backtracking of Ukrainian Special Forces to the ambiguously worded threat they ‘would not spare’ Russian artillerymen would appear more backed in maintaining the legal and moral legitimacy than soft war theory. 

Importantly, nearly every culture has exceptions to their laws of war (including non-combatants). Of the 15 cultures canvassed in Volumes 1 and 2 of The Laws of Yesterday’s Wars, only Indigenous Australian First Nations seem to have had a taboo on the spilling of non-combatant blood (women and Elders) even if they participated in conflict. It may be that the Aztec porters (tlamemeh) were also sacrosanct, but the sources are not clear. However, Buddhist ethics are governed generally by the principle of moral autonomy, so it was considered that soldiers had full individual responsibility for their actions; it was not overridden by “military necessity”. The use of surprise attacks, Friday suggests, was perhaps considered justified because warriors were always expected to be on their guard. So, taking them by surprise could not be seen as taking unfair advantage of them, any more so than attack in an ordinary battle if they have slipped their guard. 

As I covered in Volume 1 and elsewhere, despite popular fiction, surprise was also a valid tactic in many European cultures. What was not acceptable, and core in the argument against sharp war, was the breaking of trust. It is here that Moyn’s assertion is, with respect, the weakest. People always have, and always will, seek to leave the state of nature. This is achieved when people demonstrate obedience to an authority. What these volumes have demonstrated is that this obedience is often not to an individual, but to an idea: that of chivalry, fides, community, bushido, milwerangel. These are the customs and laws of war which individuals have created rituals around and which some individuals will always wish to shape and change – sometimes through appeals to exceptionalism, or to that of necessity. Yet it is important to distinguish between those who agitate for a reform of the system, and those who argue for its entire dismantlement. Those in the latter camp may try to use misinformed appeals to history and precedent; it is hoped that these and future Volumes may help inform and clarify the debate.  

Samuel White is a Cybersecurity Post-Doctoral Fellow & RUMLAE Associate Researcher at the University of Adelaide, Adjunct Research Fellow at the University of New England, & Legal Officer in the Australian Army. These views do not reflect the views of his employer nor are those of affiliate organisations.

The Laws of Yesterday’s Wars is available now at Brill Publishing

A Third Approach to the Law of Armed Conflict: Reading the Lieber Code as Strategic Lawfare

In part three of the introduction to The Laws of Yesterday’s War (edited by Samuel White), Christopher M. Bailey examines the lasting legacy of the Lieber Code on the Law of Armed Conflict. Part one and Part two of The Laws of Yesterday’s War series are also online. 

Today’s security environment is increasingly defined by a range of advanced technologies involving artificial intelligence, outer space access, 3D printing and cyberspace. Actors around the globe are wrestling with the opportunities and risks inherent in technological advancement and change. In the face of these changes, actors are becoming more aware that they must consider the impact these advancements will have on the law of armed conflict (LOAC) and how LOAC might restrict or enable these capabilities in conflict. At the core of these debates is the implicit question; what role should the law play in the context of war: a neutral arbiter attempting to regulate and minimise the harms of conflict or a means for States to prioritise the use of force?.   

This debate, however, is nothing new and the tension over the role of the law in armed conflict has parallels throughout history. In Samuel White’s new book, The Laws of Yesterday’s Wars, I assess this same tension during the 1861-1865 United States Civil War with a particular focus on the role law played in the Union’s strategy against the Southern Confederacy. It was the law professor and Union Army adviser, Francis Lieber, who ultimately crafted a third approach to the role of law in conflict in General Orders No. 100, popularly known as the Lieber Code. Instead of viewing the law either as a set of neutral rules that overlay armed conflict or more pessimistically as a mechanism that only serves to legitimise force, Lieber recognised that the law itself can be a point of contest and conflict in war.      

Law as a Neutral Arbiter or Mechanism to Legitimate the Use of Force 

A traditional view of LOAC is that the law’s central role in armed conflict is to reduce the harm suffered by all combatants. In this view the law is neutral to the participants, and instead shapes the conflict ‘environment’ equally for all parties in order to reduce the suffering of all participants, whether a combatant or bystander. This traditional view is often associated with Henry Dunant, the founder of the International Committee for Relief to the Wounded, the precursor to today’s International Committee of the Red Cross (ICRC), in the mid-19th century. According to this view, LOAC’s primary role is to limit or reduce the worst harms of war. This view is even reflected in the different phrases used to describe LOAC including ‘international humanitarian law’ or IHL. 

In contrast, some commentators take a more critical view of the role of LOAC and instead point to its use to legitimise the use of force as simply another tool of States to impose their will. Under this view, the law enables States to wage conflict as it is States themselves that create the legal boundaries and restrictions of armed conflict. Scholars often cite this view when arguing that States’ humanitarian concerns are secondary to the ability to rationalise or justify the use of force. While scholars have debated the morality and ethical implications of this view and some have even argued the Lieber Code as evidence of law used to legitimise force, I argue that there is a subtle but important nuance in the Lieber Code that implicitly articulated a third approach to the use of law in war.    

Articulating the Lieber Code as a Form of Strategic Lawfare 

Commissioned in 1862 by President Abraham Lincoln and the Union Army, Lieber’s stated task was to create a document that codified the existing laws of war at the time. Since its inception, the Lieber Code has been lauded as the United States’ first codification of the laws of war.  While the Lieber Code certainly did represent this codification, I argue that the Lieber Code’s true legacy for LOAC was Lieber’s implicit assessment that the law itself could be used to achieve military effects or objectives, a concept today that is popularly known as ‘lawfare’.  Lawfare as a term often views the law itself as a point of contest and conflict between the parties, where combatants actively try and shape the narrative and legal analysis to enable their military strategies against the other.   

To best understand how the Lieber Code can be seen as a form of strategic lawfare, my chapter in The Laws of Yesterday’s Wars first addresses the role political and cultural ideology played in shaping public perceptions of the Civil War. A key issue at stake was how the laws of war would be applied to the conflict. The chapter explores how differing views on what law should apply to the Civil War conflict became a hotly contested issue due to two key aspects of the code: 1) the concept of military necessity in military targeting, and 2) authorisation to free any enslaved people held by an opposing force. These sections of the Lieber Code, when read together, provided the Union Army a powerful legal argument to target the Southern Confederacy’s war sustaining economy and the institution of slavery itself.   

Relying on the historical research and insights of scholars like John Fabian Witt and Sir Adam Roberts, I argue these provisions of the Lieber Code in particular were not designed to be neutral to the parties nor just a pessimistic tool for the State to enforce its will, but instead a recognition that the law can and will be disputed and contested in conflict between the warring parties.  Understanding what was at stake in the Civil War, Lieber’s work should be viewed as a strategic form of lawfare.   

The lasting legacy of the Lieber Code is that LOAC is not static but dynamic.  This contest is visible today as commentators, scholars and practitioners alike attempt to codify, advocate and shape both the law itself and its interpretations. Whether in new conflicts or wrestling with new technologies, Lieber’s dynamism highlights that LOAC can be shaped by a range of actors and while there is a risk that LOAC could be misused or subverted to justify illegitimate force, it can also innovate in order to expand humanitarian protections while enabling legitimate force. Thus, which path the law takes in war is a conflict all its own. 

Christopher M. Bailey currently serves as a United States Air Force judge advocate. He has a Master of Laws degree in Space, Cyber, and Communications Law from University of Nebraska College of Law and a Juris Doctor degree from Chicago-Kent College of Law. 

The views expressed are those of the author and do not reflect the official policy or position of the U.S. government, the Department of Defense, or the U.S. Air Force. Further, the appearance of external hyperlinks does not constitute endorsement by the Department of Defense of the linked websites, or the information, products, or services contained therein. 

Events and Opportunities – June 2022


Internships, various UN departments and agencies, various locations

A variety of UN internship positions are currently open. Please see the following links for internship positions:

Legal Consultant, International Rescue Committee, Tripoli

Applications are accepted now:

International Humanitarian Law Advisory Committee Member – Chairperson – NSW, Sydney

Applications close on 21 June 2022:

Legal Officer, P3, Economic Commission for Europe, Geneva

Applications close on 24 June 2022: 

Legal Officer, P3, United Nations Verification Mission in Colombia, Bogota

Applications close on 24 June 2022: 

Human Rights Officer, P4, UN Office of the High Commissioner for Human Rights, Beirut

Applications close on 26 June 2022:

Advisor to the Prosecutor, International Criminal Court, The Hague

Applications close on 27 June 2022:

Legal Advisor, Middle East and North Africa Programme, International Commission of Jurists, Tunis

Applications close on 29 June 2022:

Armed Forces and Non-State Armed Groups Delegate, International Committee of the Red Cross, Global Deployment Option

Applications close on 30 June 2022:

Legal Officer, P4, United Nations Organisation Stabilization Mission in the Democratic Republic of the Congo, Kinshasa

Applications close on 5 July 2022:

Legal/Evaluation Officer, P3, UN Office of Legal Affairs, New York

Applications close on 6 July 2022:

Humanitarian advisor on forced migration, Medecins Sans Frontieres, Brussels

Applications close on 6 July 2022:

Senior Legal Officer, P5, International Residual Mechanism for Criminal Tribunals, The Hague

Applications close on 7 July 2022:

Legal Officer, P3, International Residual Mechanism for Criminal Tribunals, The Hague

Applications close on 7 July 2022:

Associate, Crisis and Conflict, Human Rights Watch, New York or Washington DC

Applications close on 10 July 2022:

Legal Assistant, G6, UN Office of Legal Affairs, New York

Applications close on 12 July 2022: 

Legal Officer, P3, United Nations Human Settlements Programme, Nairobi

Applications close on 24 July 2022:

Visiting Professional – Chambers/Cae Law Database, International Criminal Court, The Hague

Applications close on 24 July 2022:

Further study and research opportunities

Postgraduate fellow, Just Security, New York

Applications close on 30 June 2022:

Research Associate, Oceans Law and Policy Team, National University of Singapore

Applications close on 15 July 2022:

Brennan and Nygh Prizes

The Australian Branch of the International Law Association is calling for submissions for the Brennan Essay Prize in Public International Law and the Nygh Essay Prize in Private International Law. Submissions are due on 15 July 2022 and further details are available on the ILA (AB)’s website: 


Introductory course – Fundamentals of International Humanitarian Law

The College of Law Western Australia is hosting a three-hour introductory course on IHL on 21 June 2022. More information here:

International Insolvency Research Symposium: “Insolvency Current Issues”

Hosted online 12-14 July 2022 by the University of Sydney. More information here:

Australian Red Cross Book Group: Gareth Evans

The Australian Red Cross Book Club has regular Readings sessions. On 27 July 2022, the club will be joined by former Australian Foreign Minister Gareth Evans AC QC to discuss his new book on good international citizenship. More information here:

Call for Submissions: Brennan Essay Prize in Public International Law and the Nygh Essay Prize in Private International Law

The Australian Branch of the International Law Association is calling for submissions for the Brennan Essay Prize in Public International Law and the Nygh Essay Prize in Private International Law. These two prizes – named in honour of Sir Gerard Brennan, former Chief Justice of Australia and Patron of the Branch, and Dr Peter Nygh, a leading Australian scholar of private international law and former President of the Branch – are awarded to the authors of essays in the field of public international law and private international law (conflict of laws).

The prizes are awarded for essays that, in the opinion of a judging panel of three persons appointed by the Management Committee of the Australian Branch of the International Law Association, demonstrate outstanding scholarship and make a distinct contribution to an understanding of the subject.

The prizes are open to any Australian citizen, or person normally resident in Australia, or studying in Australia. The competition is intended to recognise and encourage achievement by a younger scholar or practitioner (a student or within five years of graduation). The judging of the essays will consider the stage of career of the entrant and assess those entries relative to opportunity to account for different levels of experience. The decision of the panel shall be final.

Each prize will be in the form of a certificate, a year’s membership of the International Law Association, and cash in the amount of $500.

Essays submitted in consideration for the prize should be between 5,000 and 8,000 words in length (including footnotes). They may have been submitted previously for course credit in an academic institution but not published or submitted for publication. An electronic copy must be submitted along with a short CV clearly indicating stage of career.

The essay must be the sole creation and original work of the entrant. No person may submit more than one entry for each annual competition.

The winner will be encouraged to submit the winning entry to the Australian International Law Journal for publication. The award does not guarantee that it will be published in the Journal.

Essays for the prize to be awarded in 2022 should be sent to the email address of the Secretary of the Australian Branch at [email protected] . Entries must be received no later than 15 July 2022. The results will be made available on the web site of the ILA on (approximately) 31 August 2022. Winners will be notified by email.