This is Part 2 in a two-part series on Dr Carolyn Evans monograph, Towards a more accountable United Nations Security Council. In this series, Dr Carolyn Evans (CE) discusses her research on the United Nations Security Council with Assistant Editor Crystal Ji (CJ). Part 1 examines Dr Evans’ influences that shaped the direction of her research, the Security Council’s relationship with international law, and the problems and potential of the Security Council in performing its role. Part 2 examines what greater accountability could look like for the Security Council. 

CJ: Your book investigates how we can move towards more accountability for the Security Council. What does accountability mean in this context, is there a standard in international law?

CE: No there is not, though there have been attempts to go in that direction. A proposal came out of the International Law Commission in its Draft Articles on the Responsibility of International Organizations. It has been on the table in the General Assembly for more than 10 years, and it is no closer to finalisation. Also, accountability is a social or sociological concept rather than a strictly legal one. International law definitely does not have a strict meaning for the term, and it is not necessarily equated to, or only synonymous with, legal responsibility. Some people say it should be and make a good case, but I would suggest it is not necessary that it be equated that way, and instead that there is role for legal responsibility separate to the broader concept of accountability.  

The difficulties are also linguistic. Many languages do not have a word for accountability so it is not possible to translate it, and that in itself is a stumbling block. In the Anglophone world, the concept of accountability is basically a post-war concept. The first paper going in that direction is from 1944, so it is not a particularly longstanding concept. I took it back to basics to say that accounting is explaining or justifying, and that has a broad applicability that helps us. What it means for me is that it is dialogic – there is not much point to a monologue on what you did, as the account is not complete until someone responds to that.

It is not like a parliamentary debate where someone will say something and then the other side says something different, there is no mechanism for that. If such a report is intended to explain or justify conduct, it should be a two-way street, there should be a response so you are not talking into the void or going into self-justifying monologue.  

But there I stop short of what other authors often do. A range of authors often bracket in the idea of consequences, so they are following more of what you see in newspapers of being ‘held to account’. That is certainly one part of the picture. I do not tend to use that as the main picture; it is highly valuable and educational to account for things even if there are no ‘consequences’. If you presume there are always negative consequences or some punitive element or even just a pejorative overtone, it changes the nature of accountability – it looks like you are going on a fault-finding mission rather than trying to understand something. What you do not want is an accountability process to end up being just 20/20 hindsight. Accountability is intended to help us understand, so it needs to have that interactive response element, but it does not need to have a pejorative or punitive overtone. For example, we do see shareholders’ meetings that go very badly – people shouting that things were done wrong, that sort of thing. But the other ninety-nine out of a hundred shareholders’ meetings will often be civilised, quiet, productive, where the annual report is given, where a shareholder will say, ‘it worries me a bit that this is happening’. And then the next year, the conversation will say ‘in response, we fixed that’. So, lots of those things happen with respect to accountability, but they are not always regarded as newsworthy. 

CJ: What kind of model would you propose that would incorporate that dialogic process to make the Security Council more accountable?

I think there needs to be a formal response from the General Assembly as the plenary for the institution. That is not to say the General Assembly should supervise the Council. But the General Assembly is the place for a statement of expectations to come from the membership of the institution, or a statement of disappointed expectations if you like; ‘we expected that to be done and it was not and we are not happy’. Interestingly, Ukraine has precipitated some of that. The 1950 General Assembly Uniting for Peace Resolution that has not been talked about for decades has come back to the fore, which is a way of the General Assembly saying ‘your explanation for your inaction is inadequate, we are now taking the helm’. If you think of it in accountability terms, the relevant resolution from the Security Council owned that it could not reach a resolution on the issue, and the General Assembly response is ‘we are going to do something’. Though the solution might not necessarily be via the Uniting for Peace Resolution, the idea is still a vastly more productive account of whether the Security Council is able to do what it is there to do, and whether it used all the tools it could use. In the book, I talk about examples where, with the benefit of hindsight, we can see many other things that could have been done at the time. I outline that this is evidence that, if there was a dialogue going with the General Assembly and that wider membership, shortfalls in action by the Council might have come out and been addressed at the time, much more contemporaneously, rather than what the Security Council does being almost a monologue in the Council.  

If we think they have trouble making decisions with 15 members, how much bigger can you make it before it would not be able to do anything at all? The General Assembly itself is a good example of inaction from broader membership. Even in some GA committees with 50 members, there is a serious struggle to move ahead simply because it is a big body of people to wrangle. Instead, I looked at the ideas around a modest increase of a handful of members to the Security Council, because if you did exactly what you do now in the Security Council but with more people, I do not think it would make any difference at all. You need to adjust one of the other dials. The idea I explored was greater corporate memory by having what some might call ‘semi-permanent members’ of the Security Council. At the moment, elected members are constrained by not being allowed to serve successive terms. Just as they start to become familiar enough with the work to really contribute, their term is finished. Could successive terms be allowed? Then they could build up more corporate memory and greater ability to deal with the issues.  

So, accountability could be increased by more involvement, by the General Assembly responding, by more push from the General Assembly to indicate direction to the elected members of the Security Council, and the elected members then standing up and doing so. There is the example [mentioned in part I] of the 1267 Ombudsperson. The General Assembly clearly expressed that the system was not right and needed to be fixed. Over a period of years, almost all elected members pursued that and contributed something. Some commissioned studies, others put it back on the agenda after it fell off. They took the idea from the General Assembly that it was a problem that needed to be fixed, then they pursued it. That structure is dialogic and is ongoing to account for the gap that is seen and to look at different ways of bridging the gap. 

All of that said, if you are a very black letter law person, accountability is a frustrating concept because it does not have a strict definition or finite boundary. Hence my answer is long because it is not black letter law. We are back to the Security Council’s basic relationship with international law, which itself is not black letter. My inclination has been to go back to the membership, which has the right to direct the institution as a whole, where this might play out in the General Assembly being the plenary body. The membership should be directing the institution, not just one or two veto-holders. 

CJ: Do you see momentum building for change being instituted? How would you overcome obstacles and find a path forward in that regard?

CE: With every week that goes by with the situation in Ukraine, I think people are discovering what can be achieved. It is a horrible way of discovering it, but it would be worse if we went through all that and did not, so we take the positive where we can get it. Put a different way, the situation in Ukraine itself is a full stop on a long and ugly sentence that played out over decades. Some people would say it is a natural consequence from Crimea, and I would agree, but Crimea itself was a consequence of other inaction of the Security Council which came about because they could not agree on something 30 years ago, which came because they could not agree on something 40 years ago – but if I start giving those examples, we might be here all day! The key is that gradual degradation can be addressed by gradual re-creation. I do not think throwing it out and starting it again is that practical. Just that one example I gave earlier on the Uniting for Peace Resolution – revisiting that and using a tool that was there to be used, using it well and doing as much as they could with that, that is great. And – perhaps quite surprisingly – writing the book made me quite optimistic about the possibilities! 

Dr Carolyn M Evans CSC teaches and researches at the Faculty of Law & Justice at UNSW Sydney, specialising in international law in relation to international organisations. She recently published her first monograph Towards a more accountable United Nations Security Council (Brill 2021). 

In this series, Dr Carolyn Evans (CE) discusses her research on the United Nations Security Council published in her recent monograph, Towards a more accountable United Nations Security Council (Brill 2021) with ILA Reporter Assistant Editor Crystal Ji (CJ). Part I examines Dr Evans’ influences that shaped the direction of her research, the Security Council’s relationship with international law, and the problems and potential of the Security Council in performing its role.  

CJ: Congratulations on the book/monograph! What prompted you to write this book?

CE: It is my doctoral thesis revisited. It commences with the story of how I came to pursue a PhD, which is relevant especially as it’s not my first trip around the block, and I only just finished my PhD three years ago. I was involved in community service for a very long time, mostly as a human rights activist. This gave me a practical understanding of how human rights treaties make a difference and how they can be used. It became clear as I went along that if I better understood the role of the UN, including what the Security Council does, I would be able to improve my human rights work. It also intersected with what I had done in my professional life for a very long time, which is what we would now call ‘governance’ in a broad sense: how decisions are made, who has the right to make them, and whether they’ve been made effectively.

You start by looking at functions assigned to an entity that has decision-making powers and see if they are performing them correctly, the procedural elements of decision-making; funnily enough, I assumed early on in my career that people in power would simply follow those procedures, but I later realised what a brave assumption that was. Many times decision-makers do not even understand their own procedures, or they get all caught up on a tiny element of the procedure and they miss the main problem. Over the years I accumulated all this knowledge about governance, and then once I studied international law, it dawned on me that some of the most substantial issues of governance in the world relate to the Security Council. It was an obvious thing for me to study. The potential for abuse of power is huge, but there is also huge potential to not be effective. In some ways, the Security Council could be one of the most powerful institutions in the world, yet many people look at it and wonder why it is not. 

CJ: So the book was clearly very much informed by both personal experiences and also what you studied later.

CE: Yes. I have two Masters degrees – one I did a long time ago, an MBA, then as I went on in my career I became more interested in law, and so I did a Masters of Legal Studies. In that, I did the international law and human rights track. There were big lightbulb moments. 

CJ: You mention that you realised the Security Council is a very powerful institution with great potential. What is its relationship to international law? 

From another perspective, what the Security Council is there to do is simply impossible without the supporting framework of international law. It has its own obligations and activities, it also has guidance on what to do and how to respond in the face of what others do, but that nice summary papers over an enormous number of cracks. There are so many practical difficulties in working your way through the geopolitics even when you’ve got international law on your side. You can argue about getting the balance between legalism and realism right, or whether the ends/consequences for the world justify the means the Security Council might use. But even some of the really big concepts of international law, such as sovereign equality of states, get lost in the noise of debate in the Security Council. At this point, it is hard not to comment that the misconceptions surrounding the Security Council’s interactions with international law are not helped by the infamous relic of the post-war era, the dreaded veto. It is a great balancing act, trying to wrangle all of that, but it is not just about the P5 having the veto, as that greatly oversimplifies how the Security Council interacts with international law. There is so much more to it than that. The General Assembly, the elected members of the Security Council, all these other actors in the picture also have their own interactions with international law, and that shapes what the Council might/should/could do.  

I approach this from a different angle. If you think about it from the veto, it can stop action that is proposed. But first, there has to be a proposal to be stopped. If you look at how the Council has used international law to its advantage over the years, half the time there isn’t even a proposal, and that tends to be a bigger issue. So there are many consequences of what goes wrong when the Security Council does something, certainly, but I tend to focus on the consequences if the Security Council does nothing, because there is only one Security Council and there is no alternative. If they do not do their job, where do we all end up? Before Timor was as we know it now, it was formerly a Portuguese colony that Indonesia invaded in 1975. Twenty-five years of death and destruction came afterwards, but it came afterwards because the Security Council could not take action. Much more recently, two years ago when the Secretary-General called for a global ceasefire in order to deal with the COVID-19 pandemic, the Security Council could not get it together to pass a resolution in support of that. Though it probably would not have made a difference if the Council had passed that resolution, it does show the depth of the problem, that they could not realise the world needed them to be active rather than sitting frozen, like a rabbit in the headlights. 

CJ: If there is a proposal put forward, you have the P5 who have the power to veto, being comprised of countries that a lot of people would say does not even reflect current power structures. How do we overcome that hurdle of the veto, so that the Security Council can be a productive body to help maintain international peace and security?

CE: It is very hard to talk about the Security Council without talking about reform. It has been a hot topic for decades. When I started my doctoral research, I very quickly became allergic to debate over particular reform proposals, because although I do see the worth of the debate, I just cannot get past the veto. It seems so improbable to suggest that there will be any change to the most important arrangements like permanent membership and the veto. Without compacting or abbreviating that discussion too much, the veto is both the cause and the effect of the problem. You never get out of the loop.

Recently, there have been debates sparked by the situation in Europe, saying we really need to reform, or perhaps to get rid of the UN altogether. I can understand those arguments, but after researching it for so long, what I do get from the history of the Security Council is a much stronger sense that when certain actors put their mind to it, really good results are possible despite the P5 and their veto. I ended my research very optimistic about that. ‘What is it we want from the Council?’ is a good question. ‘Who gets to decide that?’ is another. It is quite possible to take the view the Security Council does a lot of behind-the-scenes diplomatic work that we do not see. However, that is not its main job; its main job is to maintain and restore international peace and security. Put another way, if we do not have a better idea of what we want from the institution, getting rid of the institution and starting again probably will not help. If we instead put their feet to the fire and make the actors we have already got do the thing they are there to do, there is a better chance of progress.  

In that direction there are some good examples to be discussed about when the elected members took concerted, unified action to pursue a goal and achieved it. One is the 1267 Ombudsperson. Resolution 1267 deals with counter-terrorism, to better deal with the Taliban and Bin Laden. That committee is the source of some of the ‘celebrated cases’ where people were – incorrectly – listed on terrorism watchlists and then could not get off the watchlists. More than 15 years ago there was action that led to a General Assembly resolution about the need to have fair and clear procedures for listing and delisting. This now seems obvious. But it took nearly five years of successive elected members of the Security Council pursuing this one idea that ‘fair and clear procedures’ were needed. They put it on the agenda under different headings, they kept going back to it. Costa Rica, Liechtenstein, Luxembourg, Germany, Sweden, Switzerland, Denmark and various others played a role at different times. All these disparate members, as they came and went as members of the Security Council, they kept chipping away at this idea that the procedures for terrorism watchlists were not right. In the end, they got an ombudsperson, changed the rules, and, crucially, provided for a review mechanism.  

The Security Council is a geopolitical body of huge complexity and significance, so you are not going to get things just by wanting them. That persistence is key.  

Another example is the process by which the Secretary-General is chosen. Many people were critical of the Security Council for that process being held behind closed doors for a long time. But it started because the General Assembly asked the Security Council to do it that way. In 1946, the General Assembly passed a resolution essentially saying to the Security Council, ‘just give us one candidate because we do not want to debate it in open forum, there might be dissent and it might not be fun’. [Ed: see Terms of Appointment of the Secretary-General GA Res 11 (1), UN GAOR, 1^st sess, 17^th plen mtg, UN Doc A/Res/11 (1) (24 January 1946) para 4(d).] 

So it started with the General Assembly but it also finished with it. In 2015, especially towards the end of that year and in the next year, the General Assembly said it wanted to do things differently, an idea which different civil society organisations then picked up. The selection of Secretary-General Antonio Guterres came out of a much more open and accountable process, because of the instigation of the General Assembly and then elected members of the Security Council being persistent. So the General Assembly creates the demand, to which it is possible for the Security Council to respond if elected members then pick that up and are persistent, and that makes change. You need to see the possibilities out of examples like that rather than feel the weight of the veto.  

There is a similar pattern to be seen in an example like Australia and Jordan and Luxembourg taking action to get humanitarian aid to Syria. The Syria example is particularly important because the whole way through that process, which ended with a  decision under Article 25 of the UN Charter to say Syria must allow access for humanitarian aid, that was totally against what Russia and China wanted. They were against it from the beginning, but persistence won the day. So in some ways, it is a bit of a cheap shot to always go back to the veto, because there is a lot more to Security Council decision-making than that, but of course we can all see that the veto is a very real problem. 

In Part 2, Dr Carolyn Evans and Crystal Ji examine what greater accountability could look like for the Security Council. 

Dr Carolyn M Evans CSC teaches and researches at the Faculty of Law & Justice at UNSW Sydney, specialising in international law in relation to international organisations. Dr Carolyn Evans’ monograph Towards a more accountable United Nations Security Council is available now. 

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.  

Introduction

‘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.  

Facts

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.

Conclusion

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.

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.

Speakers:

• 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.

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.

Jobs

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. 

Internships

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

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

Opportunities

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. 

Events

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. 

Jobs

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

Applications close 20 August 2022: https://careers.un.org/lbw/jobdetail.aspx?id=184133&Lang=en-US 

Legal Officer, United Nations Human Settlements Programme – Nairobi 

Applications close 24 July 2022: https://careers.un.org/lbw/jobdetail.aspx?id=181653&Lang=en-US  

Legal Consultant, World Food Programme – Italy 

Applications close on 17 July 2022: https://www.impactpool.org/jobs/826881  

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

Applications close 18 July 2022: https://www.eyewitness.global/legal-specialist-job-vacancy-fixed-term-contract  

Legal Officer, World Intellectual Property Organization, Geneva 

Applications close 22 July 2022: https://www.impactpool.org/jobs/824813  

Legal Officer, World Health Organisation, Geneva 

Applications close 24 July 2022: https://www.impactpool.org/jobs/827291  

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: https://osfglobal.wd5.myworkdayjobs.com/OSF/job/New-York/Associate-Strategic-Litigation-Officer-x-4–Open-Society-Justice-Initiative–OSJI-_JR-0002589 

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

Applications close 17 July 2022: https://boards.greenhouse.io/humanrightswatch/jobs/6244152002 

Internships

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: https://careers.un.org/lbw/jobdetail.aspx?id=171244&Lang=en-US   

Legal affairs – Department of Peace Operations – Geneva: https://careers.un.org/lbw/jobdetail.aspx?id=170949&Lang=en-US  

Legal affairs – International Residual Mechanism for Criminal Tribunals – Arusha and The Hague: https://careers.un.org/lbw/jobdetail.aspx?id=167956&Lang=en-US  https://careers.un.org/lbw/jobdetail.aspx?id=174490&Lang=en-US  

Office of the President – International Residual Mechanism for Criminal Tribunals – The Hague: https://careers.un.org/lbw/jobdetail.aspx?id=166988&Lang=en-US  

Department of Management Strategy, Policy and Compliance Office of the Under-Secretary-General – New York: https://careers.un.org/lbw/jobdetail.aspx?id=172991&Lang=en-US  

Legal affairs – United Nations Environment Programme – Geneva: https://careers.un.org/lbw/jobdetail.aspx?id=185236&Lang=en-US  

Legal affairs – United Nations Relief and Works Agency – Amman: https://careers.un.org/lbw/jobdetail.aspx?id=185615&Lang=en-US  

Office of Legal Affairs – Incheon City: https://careers.un.org/lbw/jobdetail.aspx?id=182791&Lang=en-US  

Legal Affairs – United Nations Office at Vienna – Vienna: https://careers.un.org/lbw/jobdetail.aspx?id=182784&Lang=en-US  

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

Applications close 15 July 2022: https://career5.successfactors.eu/career?career_ns=job_listing&company=1657261P&navBarLevel=JOB_SEARCH&rcm_site_locale=en_GB&career_job_req_id=22099&selected_lang=en_GB&jobAlertController_jobAlertId&jobAlertController_jobAlertName&browserTimeZone=Europe/Amsterdam&_s_crb=L1oYmr2HK09IiaIRYoaqbR4NEWvY%2ByGqznYTsKxoSBQ%3D  

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

Applications close 24 July 2022: https://career5.successfactors.eu/sfcareer/jobreqcareer?jobId=21719&company=1657261P 

Events

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: https://www.readings.com.au/event/australian-red-cross-book-group-gareth-evans 

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: https://2go.iccwbo.org/icc-side-event-at-the-63rd-assemblies-of-the-members-states-of-wipo-strengthening-ip-ecosystems-for-sustainable-growth-and-development.html  

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: www.swissvyap.com/events  

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: https://2go.iccwbo.org/icc-yaf-lessons-from-successful-challenges-to-arbitral-awards-in-hong-kong.html  

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: https://cil.nus.edu.sg/event/pils-2022-the-applicability-of-existing-international-law-to-the-governance-of-cyberspace/  

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: https://www.publicinternationallawandpolicygroup.org/expert-roundtable-high-war-crimes-court-ukraine  

Opportunities

7^th 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 : https://www.linkedin.com/feed/update/urn:li:activity:6950492338850787328/.  

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

Applications close on 4 September 2022: https://www.jobs.ac.uk/job/CRA856/phd-studentship-the-state-silence-project  

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

Applications close 29 August 2022: https://www.jobbnorge.no//en/available-jobs/job/228735/post-doctor-position-in-international-human-rights  

Fellowship, Legal Affairs Division UNFCC – Bonn 

Applications close on 12 August 2022: https://www.impactpool.org/jobs/827714?utm_source=impactpool-job-opportunities&utm_medium=email&utm_campaign=job-alerts-2022-07-06&fbclid=IwAR2T-KowSaXoHJTFSGgRnSRgDiAyDAdmTFJssbbne3GV0LDWjeqLXHkbK7U  

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: https://www.biicl.org/events/11627/short-course-climate-change-law  

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. 
 

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.