Debate Map: Armed conflict and use of force in Syria
Last Updated: 30 April 2017
Created by Vito Todeschini, Postdoctoral fellow at the University of Trento, School of International Studies and John Louth, Editor-in-Chief for Academic Law at Oxford University Press
The following index maps scholarly commentary on the legal issues surrounding the armed conflict in Syria, as well as the public international law aspects (but not domestic constitutional law) of the use of force against and in Syria published in English language legal blogs and newspapers (and some very recent journal articles).
Use this map to review scholarly arguments and to keep track of which issues have been covered and who has said what.
II. Analyses of Scope and Meaning of UN Charter Article 2(4) Prohibition of the Use of Force
A) Legality of Arming Rebels
B) Purpose of Force – Reprisals vs Restoration of Peace
C) Meaning of “Territorial Integrity and Political Independence”
D) Chapter VII Authorization
E)”Uniting for Peace” Resolution as a Way Round UNSC Deadlock
III. Legality of Possible Grounds for Intervention:
A) Humanitarian Intervention Doctrines
B) Responsibility to Protect
C) Intervention to Support Self-determination
D) Intervention to Counter Use or Proliferation of WMD
A) Kosovo
B) Libya
C) Others
A) “Armed Attack”
B) Anticipatory self-defence
VI. Use of Force against Non-State Actors
VII. Progressive Development of Law on the Use of Force
IX. International Criminal Law
A) Crimes
B) Jurisdiction of the ICC
C) Accountability for Crimes
X. International Human Rights Obligations and Remedies
(i) 28 August 2013, Oona Hathaway and Scott Shapiro in the Washington Post and 30 August 2013, Don Anton in The Drum (sketch the outlines of the legal debate)
(ii) 30 August 2013, Kenneth Anderson’s ASIL Insight (provides a more in-depth survey of legal issues)
II. UN Charter Article 2(4) Prohibition of the Use of Force
(i) 23 May 2013, Kenneth Chan at Journal of Conflict and Security Law (suggests that designating states as “failed states” has in the past influenced the way that the article 2 prohibition and its exceptions have been applied to them, but also explicitly states he is not claiming Syria is a failed state)
(ii) 29 August 2013, Jack Goldsmith at Lawfare (arguing briefly that claims about the prohibition being sacrosanct are overstated)
(iii) 28 August 2013, Comments on Dapo Akande’s post at EJIL Talk! (main post is on whether a customary international law right to humanitarian intervention exists, but whether Article 2(4) is a limited prohibition is discussed extensively in the comments)
(iv) 3 September 2013 Oona Hathaway and Scott Shapiro in the New York Times (stress that in the times when individual states were free to decide when to use force unilateraly there was constant war and that is why the prohibition of force is so central to the UN system)
A) Legality of Arming Rebels
(i) 17 January 2013, Dapo Akande at EJIL Talk! (on providing arms to rebels; 4 possible grounds for legality)
(ii) 17 June 2013, Andre Nollkaemper at EJIL Talk! (on shared responsibility for what rebels do with weapons supplied to them by foreign governments)
(iii) 13 March 2013, Marko Milanovic at EJIL Talk! (mainly about Perisic decision at the ICTY Appeals Chamber, but with reference to liability for arming war criminals, discusses application of distinction between aiding general war effort and complicity in commission of crimes)
(iv) 8 April 2013 Stuart Casey-Maslen at the OUP Blog (suggesting that Article 6(2) of the Arms Trade Treaty may ban transfers of weapons to armed non-state actors)
(iv) 23 July 2013, Jack Goldsmith at Lawfare (on implication of the US publicly admitting to giving covert aid to rebels); revisited again by Goldsmith on 5 October 2013 at Lawfare (discussing excerpts from responses by Kerry and Hagel about military assistance to rebels)
(v) 12 August 2013, Michael N. Schmitt in Journal of National Security Law (general overview but unique contribution is discussion of possibility of weapons falling into terrorists’ hands in violation of UNSC 2083 – see International Crisis Group’s report on possible terrorist links of Syrian rebels)
(vi) Antonio Coco in the Journal of International Criminal Justice 11/2 (that the UK Court of Appeals in R v Muhammed Gul effectively say that all hostilities by Syrian rebels are terrorist acts) and 12 September 2013, Vladimir Putin in the New York Times, paragraph 6)
(vii) 2014 Tom Rhuys in the Chinese Journal of International Law 13/1 (a full assessment of the law relating to non-lethal assistance)
(viii) 26 September 2014, Ryan Goodman and Michael Schmitt at Just Security (on whether arming and training Syrian rebels violates the international legal prohibition on the use of force)
(ix) 13 October 2014, Abby Zeith at Just Security (analysing whether arming the Syrian rebels breaches the arms trade treaty)
(x) 18 August 2015, Nathalie Weizmann at Just Security (considering whether the US would bear responsibility if supported rebel groups committed IHL violations)
B) Purpose of Force – Reprisals vs Restoration of Peace
(i) 28 August 2013, Joshua Keeting in Slate applying a 2011 David Luban article on the illegality of war as punishment to the Syria context
(ii)31 August 2013, Ian Hurd at Opinio Juris suggesting that there are unilateral uses of force that are not self-defence or aggression
(iii) 1 September 2013, Shane Darcy at EJIL Talk! (on legality of reprisals)
(iv) 6 September 2013, Carsten Stahn paper titled Blurred Lines (arguing that talk of punishment sits uneasily with justifications for the use of force which should be kept separate from issues of international justice)
C) Meaning of “Territorial Integrity and Political Independence”
(i) 4 September 2013, Rob Howse and Ruti Teitel at Project Syndicate (force that isn’t aimed at a state’s territorial integrity and political independence is not necessarily prohibited, this point is made by Jordan Paust in several Comments to other posts and set out by him in full on 10 September 2013 in Jurist.org)
(ii) 6 September 2013, Anthony D’Amato’s Northwestern Public Law Research Paper 13-30 (historical analysis of meaning of these terms)
(iii) 26 November 2015, Kubo Mačák at EJIL Talk! (arguing that the downing of a Russian military aircraft by Turkey was against international law)
D) Chapter VII Authorization
(i) 7 September 2013, Stephen Griffin at Balkinization (argues that the UN doesn’t really represent “collective” security since it relies so much on specific states)
(ii) 12 September 2013, Daniel Bethlehem at EJIL Talk! (claims that Iraqi no-fly zones constituted an intervention outside of Chapter VII authorization)
(iii) 26 September 2013, Kenneth Anderson at Opinio Juris on the draft UNSCR 2118 on Syria's chemical weapons (applying his view of international law as substance vs international law as process to the situation in Syria)
(iv) 27 September 2013, Ryan Goodman at Just Security (on whether the draft resolution is binding and automatically enforceable)
(v) 27 September 2013, Dan Joyner at Arms Control Law Blog (on what it means for a UNSCR to be adopted "under" Chapter VII, and noting that the reference to "a threat to international peace and security" might open the way for authorization of force later)
(vi) 28 September 2013, John Bellinger at Lawfare (arguing that the final and adopted version of UNSCR 2118 is legally binding but merely puts the hard problems off for awhile)
(vii) 1 October 2013, Marko Milanovic at EJIL Talk! (noting that UNSC 2118 endorses for the first time explicitly that all UNSC decisions are legally binding, not just those taken under Chapter VII; and noting that all uses of chemical weapons anywhere are a threat to international peace and security)
E)”Uniting for Peace” Resolution as a Way Round UNSC Deadlock
(i) Andrew Carswell in the Journal of Conflict and Security Law
F) Measures below the use of force
(i) 6 October 2016, Ryan Goodman at Just Security (discussing a possible humanitarian exception to the principle of non-interference)
III. Legality of Possible Grounds for Intervention:
A) Humanitarian Intervention Doctrines
(i) 27 April 2013, Dapo Akande EJIL Talk! (on whether chemical weapons provide a basis for humanitarian intervention) building on an earlier discussion from Opinio Juris on 7 December 2012 from Julian Ku (saying the chemical weapons do not provide a basis for the use of force).
(ii) 25 August 2013, Jack Goldsmith at Lawfare (whether Kosovo+Syria would strengthen the development of a customary norm)
(iii) 28 August 2013, Dapo Akande EJIL Talk! (whether a customary international law right to humanitarian intervention exists)
(iv) 29 August 2013, UK Government Legal Position (the conditions under which there is no need for UNSC resolution) which is briefly discussed by Marko Milanovic at EJIL Talk! (whether the UK is trying to make custom) and by Jack Goldsmith at Lawfare (arguing that it is better to offer a weak legal justification than no legal justification). Daniel Bethlehem is quoted in the Guardian commenting on the UK position.
(v) 30 August 2013, Guglielmo Verdirame at EJIL Talk! (the legality of humanitarian intervention turns on a strategic assessment of whether proposed military action could achieve its stated humanitarian purpose)
(vi) 31 August 2013, John Quigley at Opinio Juris (even if humanitarian intervention were legal you would need to show that a plan could protect vulnerable people but the UK plan doesn’t do this)
(vii) 4 September 2013, Jack Goldsmith at Lawfare, (on how two (1, 2) recent statements by President Obama show that the US no longer thinks UNSC approval is needed for humanitarian intervention)
(viii)12 September 2013, Daniel Bethlehem at EJIL Talk! (there is a principle of humanitarian intervention which relies on the urgency of a situation and the cumulative impact of several “threads” which underpin the UK Government’s position that the conditions for intervention were met in the case of Syria)
(ix) 24 September 2013, David Luban at Just Security (suggests that Syria is changing the contours of Just War Theory in that "just cause" now places greater emphasis on ends rather than only looking at means, and a potential just war that is blocked by the UNSC can alter the meaning of "legitimate authority".)
(x) 2 October 2013, Harold Koh at Just Security (echoing Bethlehem's support for a right of humanitarian intervention but basing it on a reading of the Article 2(4) that permits exceptions other than self-defence, setting out criteria to limit the scope of the exception, and saying that post-Kosovo a consensus has built up supporting such a right). Koh's arguments are criticised on 2 October 2013 by Kevin Heller at Opinio Juris (that the proposed action would fail to meet Koh's criterion of alleviating a humanitarian crisis as it is too limited, and citing the adoption by over 130 states of the G77's rejection of the right of the humanitarian intervention as evidence of the post-Kosovo consensus is against such a right). Koh's arguments are further analysed on 7 October 2013 by David Kaye at Just Security (that Article 2(4)'s ban on force is not the means to an end but an end in itself; and if, as Koh claimed, the right of humanitarian intervention was around since Grotius, then it would have been included in the UN Charter) and again on 8 October 2013 by Carsten Stahn at Opinio Juris. Koh responds to his critics on 12 October 2013 at EJIL:Talk!.
(xi) 31 January 2014 UK Foreign and Commonwealth Office letter responding to a question from the House of Commons Foreign Affairs Select Committee (restating its position on the legality of unilateral intervention in the face of UNSC deadlock, and reconciling this to doctrines of R2P)
(xii) 6 April 2017, Deborah Pearlstein at Opinio Juris (considering whether the circumstances on the ground have changed the international law calculations about the legality of the use of force by the US against Syria. Ryan Goodman at Just Security argues that a use of force by the US against Syria would violate the UN Charter, but would not be unprecedented)
(xiii) 6 April 2017, Marty Lederman at Just Security (arguing that the US strike against a Syrian military base in response to the use of chemical weapons by the Syrian government was illegal under international law. A similar opinion was expressed by Marko Milanovic at EJIL Talk! on 7 April and Milena Sterio at IntLawGrrls on 9 April)
(xiv) 6 April 2017, John Bellinger at Lawfare (arguing that the Trump administration might justify the limited use of force based on the specific circumstances in Syria, and drawing a parallel with Kosovo. On 7 April 2017, Ashley Deeks lists the factors that the US and other NATO allies used to justify force in Kosovo and considers how the situation in Syria compares)
(xv) 7 April 2017, Ryan Goodman at Just Security (a survey among top legal experts about their view on the legality of the US strike in Syria)
(xvi) 7 April 2017, Harodl Koh at Just Security (arguing that the US strike against the Syrian military base was not illegal. On 8 April 2017, Jens Ohlin at Opinio Juris provides support to this position)
(xvii) 7 April 2017, Edward Swaine at Opinio Juris (discussing the interrelation between domestic and international law in the debate on the US’ strike against Syria)
(xviii) 7 April 2017, Julian Ku at Opinio Juris (highlighting that while most international lawyers agree that use of force against Syria is illegal, most governments do not)
(xix) 7 April 2017, Monika Hakimi at EJIL Talk! (examining the implications of the US action for the broader legal order. Anthea Roberts replied on 10 April 2017)
(xx) 8 April 2017, Michael Schmitt and Chris Ford at Just Security (analysing whether a norm on humanitarian intervention is emerging under customary international law)
(xxi) 10 April 2017, Marko Milanovic at EJIL Talk! (reasoning on the “illegal but legitimate” justification for humanitarian intervention, and maintaining that the current situation in Syria differs from the cases of Rwanda and Kosovo)
(xxii) 12 April 2017, Ingrid Wuerth at Lawfare (stating that the prohibition of the use of force remains central in international relations and considering the risks a humanitarian exception would entail)
(xxiii) 12 April 2017, Rebecca Ingber at Just Security (reflecting on the possibility to craft a narrow exception to the UN Charter prohibition of the use of force based on humanitarian considerations)
(xxiv) 14 April 2017, Jure Vidmar at EJIL Talk! (arguing that international law on the use of force should adopt a systematic distinction between justifications and excuses. Federica Paddeu replied on 27 April 2017)
(xxv) 18 April 2017, Chris O’Meara at EJIL Talk! (reflecting on whether international law should permit unilateral action outside of the UN Charter framework to protect human rights)
(xxvi) 19 April 2017, Julian Ku at Vox (observing that international law did not seem to count in the US policy-makers’ decision to strike Syria)
(xxvii) 25 April 2017, Nancy Simone at Opinio Juris (criticising the idea that it is acceptable to act outside the framework of the UN Charter when deemed necessary or to pursue a “legitimate aim”)
B) Counter-Proliferation
(i) 2013 SIPRI Yearbook (details Syria’s 2012 declaration that it owned chemical weapons and threatened to use them against aggressors, and the Russian deputy foreign minister opining that Syria had international obligations not to stockpile or use chemical weapons)
(ii) 28 August 2013, David Fidler at Arms Control Law Blog (suggests protecting the prohibition of chemical weapons as a jus cogens norm as justification for the use of force)
(iii) 6 September 2013, Krista Nelson at Opinio Juris (argues that arms control law does not provide a trigger for intervention to enforce it but that perhaps the US aims to develop this is a legal justification for the use of force)
(iv) 7 September 2013, John C. Dehn at Lawfare (considers the Obama Administration’s proposed Authorization for the Use of Military Force as possibly creating a right to intervene to counter the use of proliferation of WMD).
(v) 7 September 2013, Kevin Heller at Opinio Juris (on customary status of norm against use of chemical weapons)
C) Intervention to Support Self-determination
(i) 6 December 2012, Dapo Akande at EJIL Talk!
(ii) 5 May 2013, Stefan Talmon in Chinese Journal of International Law (legal consequences of recognizing Syrian opposition)
D) Responsibility to Protect
(i) 10 May 2013, Dianne Marie Amann reported on an article in China Legal Science explaining China’s attitude towards R2P and citing a Beijing Review article explaining Chinese Middle East diplomacy.
(ii) 14 August 2013 John Heieck at Opinio Juris on obligation to prevent war crimes, heavily criticised in Comments, raised again by Manuel Ventura and Dapo Akande at EJIL Talk! on 6 September 2013 (discussing possible customary obligation to prevent genocide)
(iii) 23 August 2013, Peter Stockberger at Opinio Juris (arguing that R2P adds nothing legally to existing doctrine on legality of the use of force)
(iv) 31 August 2013, Jennifer Trahan at Opinio Juris (arguing that R2P fills a gap in the international legal order)
(v) 2 September 2013, Jennifer Moore at the OUP Blog (makes the case that in this instance R2P demands non-lethal assistance)
(vi) 3 September 2013, Mark Kersten at Opinio Juris (on normative versus legal conceptions of R2P)
(vii) 31 January 2014 UK Foreign and Commonwealth Office letter responding to a question from the House of Commons Foreign Affairs Select Committee (restating its position on the legality of unilateral intervention in the face of UNSC deadlock, and reconciling this to doctrines of R2P)
(viii) 9 December 2015, Mark Kersten at Justice in Conflict (providing some critical thoughts on the practical implementation of R2P in the Libyan and Syrian conflicts)
(i) 29 August 2013, UK House of Commons Standard note (summarises legal backgrounds to interventions in the Gulf 1991, Bosnia, Kosovo, Iraq, and Libya)
A) Kosovo
(i) 24 August 2013, Jack Goldsmith at Lawfare (since the US deliberately avoided creating a legal doctrine for the Kosovo campaign, it cannot provide a precedent)
(ii) 24 August 2013, Ashley Deeks at Lawfare (on “factors” and how Syria compares to Kosovo)
(iii) 29 August 2013, Matthew Waxman at Lawfare (on how to use Kosovo to develop acceptability of humanitarian intervention)
B) Libya
(i) 7 February 2013, Olivier Courten and Vaios Koutroulis in the Journal of Conflict and Security Law (view intervention in Libya as contrary to norm against aiding rebels and actual force used as exceeding what the UNSC authorized)
(ii) 7 August 2013, Aqsa Mahmud at Opinio Juris (compares R2P arguments in Libya and Syria contexts)
(iii) 12 December 2013, Ralph R. A. Janik in 1 Studia Universitatis Babes-Bolyai, Studia Europaea (2013) (on how Libya experience explains Russia and China’s reluctance to accept R2P arguments)
Others
12 September 2013, Daniel Bethlehem at EJIL Talk! (main post is about humanitarian intervention generally but cites as precedents the following interventions: Tanzania in Uganda, Vietnam in Cambodia, and India in East Pakistan; also claims that Iraqi no-fly zones constituted an intervention outside of Chapter VII authorization)
A) Collective Self-Defence
(i) 8 December 2012, Daniel Bethlehem at Opinio Juris (on NATO supporting Turkey)
(ii) 30 May 2013, Jordan Paust in Pennsylvania International Law Journal (on supporting action on behalf of Turkey and Jordan)
(iii) 10 September 2013, John Bellinger III at the Council on Foreign Relations (deployment of chemical weapons serious enough to constitute the kind of threat to international peace and security that justifies action in collective self-defence)
(iv) 8 December 2015, Anne Peters at EJIL Talk! (concerning the German Government’s reliance on collective self-defence (S/2015/946) to combat the Islamic State)
(v) 17 June 2016, Marko Milanovic at EJIL Talk! (reporting that Belgium, in its letter to the Security Council (S/2016/523), invoked collective self-defence as a legal basis to use force against the Islamic State)
B) “Armed Attack”
(i) 27 April 2013, Dapo Akande EJIL Talk! (on whether accidental exposure to chemical weapons are grounds for action in self-defence) in part response to 26 April 2013 post by Ashley Deeks at Lawfare (suggesting Syria’s neighbours might feel at risk)
C) Anticipatory self-defence
(i) 7 May 2013, Dan Joyner at Arms Control Law Blog (on Israeli strikes against Syria)
VI. Use of Force against Non-State Actors
A) Security Council’s Action
(I)21 November 2015, Dapo Akande and Marko Milanovic at EJIL Talk! (analysing how Resolution 2249 provides support to the use of force against the Islamic State without authorizing it under Chapter VII). In a later post dated 3 December 2015, Marko Milanovic analyses the way the UK government employed Resolution 2249 to support its decision to use force against the Islamic State. Anne Peters also considered the German government’s reference to this Resolution
(ii) 25 November 2015, Marc Weller at EJIL Talk! (noting that, while the adoption of Resolution 2249 proves the Security Council has exercised part of its collective security functions, it is risky to let States employing the self-defence justification for using force against the Islamic State)
(iii) 10 December 2015, Paulina Starski at EJIL Talk! (arguing that Resolution 2249 is a step towards a reconfiguration of the UN collective security system, in which self-defence measures become a substitute for collective action under Chapter VII)
B) Self-defence
(i) 15 June 2014, Ashley Deeks at Lawfare (on self-defence as a legal justification for Turkey to take unilateral forcible measures to rescue its nationals in Syria. On 25 June 2014, Sina Etezazian at EJIL Talks! criticises Deeks’ position and offers counter arguments)
(ii) 23 August 2014, Ashley Deeks at Lawfare (analysing the international legal bases the US could rely on to conduct airstrikes against ISIS in Syria. On 28 August 2014, Ryan Goodman weighed in at Just Security. Mike Lewis commented on 12 September 2014, to whom Ryan Goodman and Jonathan Horowitz responded on the same day. Kevin Heller replied at Opinio Juris. On 15 September 2014, Mike Lewis replied to Johnatan Horowitz)
(iii) 24 September 2014, Jennifer Daskal, Ashley Deeks and Ryan Goodman at Just Security (on the international law framework governing airstrikes against ISIS in Syria. Further analysis by Milena Sterio at IntLawGrrls and Jennifer Trahan at Opinio Juris)
(iv) 25 September 2014, Ryan Goodman at Just Security (a survey of states that expressed legal reservations about airstrikes in Syria)
(v) 12 December 2014, Ashley Deeks at Lawfare (affirming that the UK implicitly endorsed the ‘unwilling or unable’ test to justify the use of force against ISIS in Syria. Kevin Heller criticised this statement at Opinio Juris. On 11 October 2015, he noted that also France failed to adopt this test)
(vi) 22 January 2015, Monika Hakimi at Just Security (assessing the defensive operations in Syria and scholarly positions on their legality)
(vii) 14 October 2015, Sina Etezazian at Opinio Juris (on the requirements of necessity and proportionality in the exercise of self-defence against non-state actors)
(viii) 23 October 2015, Raphael Van Steenberghe at EJIL Talk! (examining the effects of the Syrian government’s protests on the legal justifications for US-led airstrikes in Syria)
(ix) 15 November 2015, Ilya Somin at the Volokh Conspirancy (on using Article 5 of the North Atlantic Treaty to legalize the war against ISIS. Julian Ku replied at Opinio Juris on 16 November 2015)
(x) 20 November 2015, Laura Dickinson at Just Security (on the law of self-defence in light of French airstrikes against ISIS)
(xi) 7 December 2015, Jonathan Horowitz at Just Security (a legal map of airstrikes in Syria. The second part was posted on December 8th)
(xii) 8 December 2015, Anne Peters at EJIL Talk! (critical about whether self-defence and the ‘unwilling or unable’ test may justify the use of force against non-State actors)
(xiii) 16 December 2015, Tilman Rodenhäuser at EJIL Talk! (considering when the use of military force in self-defence against non-state armed groups falls within the province of international humanitarian law)
(xiv) Monika Hakimi in International Law Studies [2015] (on the state of play of defensive force against non-State actors)
(xv) 14 July 2016, Olivier Corten at EJIL Talk! (outlining the plea a group of scholars drafted against the abusive invocation of self-defence as a response to terrorism)
(xvi) 11 January 2017, UK Attorney-General’s speech published at EJIL Talk! (outlining how the law of self-defence needs to be adapted to the modern challenges posed by international terrorism and non-State armed groups). The speech has been commented by Monika Hakimi, Marko Milanovic, and James A. Green at EJIL Talk!
(xvii) Laurie R. Blank in Israel Yearbook of Human Rights [2017] (exploring the extent of self-defence in the context of a state using force in self-defence against one or more terrorist groups located in one or multiple locations outside the boundaries of the State)
(xviii) Max Planck Institute for Comparative Public Law & International Law, Research Paper No. 2017-07 (collecting short essays dealing with the legal questions surrounding self-defence against non-state actors)
C) Consent
(i) 23 December 2014, Ryan Goodman at Just Security (analysing Syrian officials’ statements to understand whether Syria has consented to US airstrikes against ISIS)
(ii) 17 February 2015, Claus Kreß at Just Security (considering the Syrian government’s invitation to the US on condition of military cooperation and whether the U.S. can lawfully reject that offer)
(iii) 2 November 2016, Chris Ford at Just Security (discussing the notion of implicit consent in relation to the use of force. Tom Ruys commented on 3 November 2016)
(iv) 28 March 2017, Ryan Goodman at Just Security (analysing Syria’s demand that a US assault on Raqqa must coordinate with governmental forces)
D) Targeted Killings and Drones Strikes
(i) 10 September 2015, Noam Lubell at Just Security (looking at the legal questions raised by the UK’s drone strike in Syria. On 11 September 2015, he offers further reflections about the UK’s letter to the Security council)
(ii) 17 September 2015, Nehal Butta at EJIL Talk! (examining the legal questions arising from the targeted killing of UK citizens in Syria)
(iii) 23 December 2015, Dapo Akande at EJIL Talk! (on the UK’s Parliamentary inquiry into the UK government’s policy on the use of drones for targeted killing)
(iv) 28 October 2016, Shaheed Fatima at Just Security (commenting on the UK government response to the parliamentary inquiry on the UK’s policy concerning the use of drones)
(v) 24 February 2017, David Turns at ASIL Insights (analysing the UK’s targeted killings in Syria against the background of both IHL and the ECHR)
VII. Progressive Development of Law on the Use of Force
(i) 27 August 2013, Ian Hurd in the New York Times, (suggesting that if there is no legal workaround develop the law through “constructive noncompliance”)
(ii) 1 September 2013, Andre Nollkaemper at Opinio Juris (how intervention could change the rules on the use of force)
(iii) 1 September 2013, Ezequiel Heffes and Brian Frenkel at Opinio Juris (discussing Higgins’ view of international law as process)
(iv) 4 September 2013, Anthony Colangelo in PrawfsBlawg (tries to theorise how a future shift in customary international law affects current legality; comments ask questions about thresholds for determining changes in peremptory norms)
(v) 5 September 2013, Kenneth Anderson at Lawfare (elaborating on his ASIL Insight, looking at arguments about developing international law)
(vi) 7 September 2013, Gabriella Blum at Lawfare (on whether permitting punishment as a justification for the use of force would better enable us to discuss moral questions)
(vii) 7 September 2013, Bill Schabas at Human Rights Doctorate (considers G20’s use of term “World’s Rules” and wonders whether this constitutes a distinct source of norms)
(viii) 15 January 2014, Milena Sterio in Cleveland-Marshall Legal Studies Working Paper (sets out how Harold Koh’s vision of allowing a further exception to Article 2(4) might work)
(ix) 2 February 2015, Dapo Akande and Zachary Vermeer at EJIL Talk! (suggesting that military intervention in Iraq against the Islamic State runs counter to the existence of a rule prohibiting military assistance to governments in civil wars. Raphael Van Steenberghe questioned this conclusion in a subsequent post on 12 February 2015). On 25 November 2015, Laura Visser argued that the Russian intervention in favour of the Syrian government is in line with international law. On 18 January 2016, Chris Borgen at Opinio Juris parsed the Syrian-Russian Agreement Concerning Russia’s Deployment
A) Classification
(i) 9 October 2016, Joanna Nicholson at EJIL Talk! (discussing whether a US airstrike on Syrian troops gave rise to an international armed conflict between the US and Syria)
(ii) 8 April 2016, Adil Ahmad Haque at EJIL Talk! (analysing, in light of the 2016 ICRC Commentary to the First Geneva Convention, whether the US military operations in Syria undertaken without the government consent give rise to an international armed conflict between the two States). The ICRC cites Dapo Akande as authority for this position.
(iii) Terry Gill in International Law Studies (a comprehensive analysis regarding the classification of the Syrian armed conflict)
(iv) 29 September 2016, Adil Haque at Just Security (discussing the trigger and threshold of non-international armed conflict. Deborah Pearlstein replied at Opinio Juris on 4 October 2016)
(v) 30 September 2016, Ryan Goodman at Just Security (considering whether the arming of anti-Assad rebels by the Gulf States would trigger an international armed conflict)
(vi) 4 October 2016, Adil Haque at Just Security (maintaining that, when a State targets an organised armed group in another State’s territory without the consent of the latter, an international armed conflict between the two States exists. Rebecca Crootof and Sarah Weiner replied on October 13th. Adil Haque’s position is based on the 2016 ICRC Commentary on GC I, which he further supports in a second post on 13 October 2016. Terry Gill and Kenneth Watkin commented on this second post; Adil Haque replied in a later post)
(v) 11 October 2016, Ryan Goodman at Just Security (arguing for the existence of an international armed conflict between the US and Syria. Gabor Rona commented at Just Security and Deborah Pearlstein at Opinio Juris. Ryan Goodman replied at Just Security on 17 October 2016. Deborah Pearlstein further commented at Opinio Juris and Dapo Akande at EJIL Talk!)
(vi) 25 October 2016, Jonathan Horowitz at Just Security (discussing the complexities surrounding the classification of the conflict in Syria)
(vii) 8 April 2017, Michael Schmitt and Chris Ford at Just Security (stating that the US strike against a Syrian military base gives rise to an international armed conflict between the US and Syria)
B) Humanitarian Access and Relief
(i) 12 May 2014, Naz Modirzadeh at Opinio Juris (a critical reading of the open letter to the UN drafted by a pool of international legal experts, concerning the possibility for the UN to bring humanitarian assistance in Syria despite the Syrian government’s lack of consent)
(ii) 4 June 2014, Camilla Barker at IntLawGrrls (considering the option of establishing so-called humanitarian corridors to relieve the civilian population)
(iii) 12 August 2014, Tilman Rodenhäuser and Jonathan Somer at EJIL Talk! (discussing humanitarian relief in non-international armed conflicts and the authority of the Security Council to adopt a binding decision to deliver aid in rebel-held territory without the territorial State’s consent)
(iv) 14 March 2017, Elvina Pothelet at EJIL Talk! (analysing the Syria Inquiry Commission’s claim that the evacuation of eastern Aleppo amounts to the war crime of forced displacement. Matt Brown replied on 27 March 2017)
C) State Responsibility
(i) 10 September 2015, Rob McLaughlin at EJIL Talk! (considering how law deals with the assignment or loan of military personnel by a State to another State which is involved in an armed conflict. The analysis is further develop by Dapo Akande in a post on 11 September 2015).
(ii) 13 July 2016, Beth Van Schaak at Just Security (on Syrian state responsibility for war crimes)
(iii) 20 September 2016, Ryan Goodman at Just Security (asking whether the US is legally permitted to coordinate military operations with Russia if it is highly likely or practically certain that Russia will engage in serious IHL violations in carrying out its part of the operations. On 21 September 2016, Monika Hakimi further develops this question)
D) Neutrality
(i) 3 February 2016, Ralph Janik at EJIL Talk! (exploring possible legal issues arising from the fight against the Islamic State for Austria’s status of permanent neutrality)
E) Conduct of Hostilities
(i) 3 October 2014, Kenneth Watkin at Just Security (on the legality to target ISIS oil facilities)
(ii) 2 December 2015, Beth Van Schaak at Just Security (discussing how IHL applies to airstrikes against oil tanker trucks and their drivers. The second part was posted on 3 December 2015)
(iii) 4 February 2016, Beth Van Schaak at Just Security (on siege warfare and the starvation of civilians as a weapon of war and war crime)
(iv) 10 February 2016, Daphné Richemond-Barak at Just Security (considering whether money is a legitimate target)
(v) 3 March 2016, Jonathan Horowitz at Just Security (on the “cessation of hostilities” arrangement brokered by the US and Russia)
(vi) 4 March 2016, Elvina Pothelet at Just Security (on whether people in ISIS training camps are legitimate targets)
(vii) 8 March 2016, Beth Van Schaak at Just Security (considering the use of improvised and indiscriminate weapons in Syria)
(viii) 27 May 2016, Marty Lederman at Just Security (on the legality of targeting ISIS oil facilities and cash stockpiles)
(ix) 31 May 2016, Itamar Mann at Just Security (analysing the legality of “roof knocking” in Syria)
(x) 10 November 2016, Beth Van Schaak at Just Security (on legal issues surrounding the use of depleted uranium in Syria and Iraq. On 31 March 2017, Elisabeth Hoffberger at Völkerrechtsblog analyses the legality of using depleted uranium in light of arms control treaties and IHL)
(F) Safe areas
(i) 27 January 2017, Nathalie Weizmann at Just Security (discussing the establishment of safe areas in Syria)
IX. International Criminal Law
A) Crimes
(i) 13 March 2013, Marko Milanovic at EJIL Talk! (mainly about Perisic decision at the ICTY Appeals Chamber, but with reference to liability for arming war criminals, discusses application of distinction between aiding general war effort and complicity in commission of crimes)
(ii) 23 August 2013, Dapo Akande at EJIL Talk! (are chemical weapons covered by the Rome Statute?)
(iii) 30 August 2013, Bill Schabas at Human Rights Doctorate (that states attacking Syria without UNSC authorization could be guilty of aggression)
(iv) 31 August 2013, Ian Hurd at Opinio Juris (whether Syria’s use of chemical weapons is a breach of international law when it is not a party to the CWC)
(v) 15 September 2013, William Schabas at Human Rights Doctorate (wondering whether Ban Ki Moon’s declaration that Assad had committed crimes against humanity would be prejudicial to a fair trial)
(vi) 18 September 2013, Catherine Harwood at Spreading the Jam (explains that mere use of chemical weapons – as opposed to their effects – is a war crime but not a crime against humanity)
(vii) 13 July 2016, Beth Van Schaak at Just Security (on Syrian state responsibility for war crimes)
(vii) 9 October 2016, Joanna Nicholson at EJIL Talk! (arguing that a US airstrike on Syrian troops does not amount to an international crime)
(viii) Beth Van Schaak in International Law Studies [2016] (maps the range of war crimes being committed in Syria with reference to the applicable treaty and customary international law and prospects for prosecution)
(ix) 1 September 2016, Ryan Goodman at Just Security (explaining the mental element required to commit a war crime)
(x) 26 January 2017, Beth Van Schaack and Alex Whiting at Just Security (discussing whether support makes a “substantial contribution” to crimes committed by a foreign partner, an element for complicity under customary international criminal law.)
(xi) 14 March 2017, Elvina Pothelet at EJIL Talk! (analysing the Syria Inquiry Commission’s claim that the evacuation of eastern Aleppo amounts to the war crime of forced displacement. Matt Brown replied on 27 March 2017)
(xii) 17 April 2017, Michael J. Adams at Just Security (considering whether the US strike against a military base in Syria may amount to the crime of aggression. Tom Dannembaum offered further thoughts on 25 April 2017)
B) Jurisdiction of the ICC
(i) 13 July 2012, Mark Kersten at Justice in Conflict on using an ICC referral as a tool to stop violence which has since been proposed on 3 September 2013 by Kip Hale in the Huffington Post and on 4 September 2013 by Luis Moreno Ocampo in the Huffington Post.
(ii) 27 August 2013, Kevin Heller at Opinio Juris (whether only the use of chemical weapons by the Syrian Government could be referred to the ICC)
(iii) 24 May 2014, Dov Jacobs at Spreading the Jam (criticising a possible UN Security Council referral to the ICC of the situation in Syria)
(iv) 3 December 2014, Carsten Stahn at EJIL Talk! (on the difficulties surrounding an ICC investigation of the international crimes committed by Islamic State’s members. The second part of the post was published on 4 December 2014)
(v) 27 March 2015, Alexandre Skander Galand at EJIL Talk! (analysing whether the Islamic State, as a group, may be the object of an ICC’s referral)
(vi) 22 April 2015, Mark Kersten at Justice in Conflict (discussing whether an ICC intervention is an appropriate response to ISIS. Mark offered further considerations on 11 June 2015)
(vii) 26 November 2015, Kai Ambos at EJIL Talk! (on the jurisdictional bases for the ICC to prosecute Islamic State’s members)
(viii) 4 May 2016, Sergey Sayapin at EJIL Talk! (considering the limits of the ICC in prosecuting Islamic State’s members and proposing the establishment of a hybrid tribunal. The author cites a post by Robert Cryer previously appeared on the OUPblog)
C) Accountability for Crimes
(i) 25 September 2013 "Blue Ribbon Panel of Experts" at Public International Law and Policy Group (proposing a Draft Statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes for violations of Geneva Conventions and 1925 Chemical Weapons Convention)
(ii) 3 October 2013, Dov Jacobs at Spreading the Jam (critical discussion of PIPLG’s proposed Draft Statute).
(iii) 3 October 2013, Carsten Stahn at EJIL:Talk! (on UNSC Res 2118’s lack of an ICC referral and what the implications for accountability for crimes committed during Syria’s conflict)
(iv) 9 December 2013, Annika Jones at US Naval War College’s International Law Studies (provides an overview of international and domestic criminal justice options)
(v) 23 January 2014, Mark Kersten at Justice in Conflict (discusses Peace v Justice debates with links to his own proposal for a middle ground from 10 November 2013 and Human Rights Watch’s 20 January 2014 demands for justice from the peace talks in Geneva)
(vi) 22 may 2014, Derek Jinks at Just Security (on whether the General Assembly has the authority to establish an International Criminal Tribunal for Syria)
(vii) 28 May 2014, Beth Van Scaak at Just Security (considering the possibility to establish a mixed chamber for Syria. On May 29th, she discusses the alternative jurisdictional bases for a hybrid tribunal.)
(viii) 5 July 2014, Dov Jacobs at Spreading the Jam (criticises the proposal by David Scheffer to establish a treaty-based tribunal in a third country to prosecute international crimes committed in Syria)
(ix) 10 November 2014, Iva Vukusic at Justice in Conflict (analysing the pros and cons of establishing an ad hoc or hybrid tribunal to prosecute the international crimes committed in Syria. Shikha Dilawri and Mark Lattimer offered further considerations on 8 June 2015)
(x) 24 November 2015, Abdulhay Sayed at EJIL Talk! (on the importance of ending impunity for crimes committed in Syria)
(xi) 13 January 2016, Aurianne Botte at Rights! (examining whether Security Council Resolution 2235 (2015) is a positive step towards accountability in Syria)
(xii) 22 March 2016, Patrick Wall at Opinio Juris (reporting that the US House of Representatives passed a resolution calling for War Crimes Tribunal for Syria)
(xiii) 17 October 2016, Mark Kersten at Justice in Conflict (providing an overview of the judicial options to ensure accountability for war crimes in Syria)
(xiv) 30 December 2016, Mark Kersten at Justice in Conflict (discussing the potentials and challenges related to the “International, Impartial and Independent Mechanism” created by UN General Assembly Resolution 71/248. On 24 February 2017, Alex Whiting at Just Security analysed Russia’s objections to the resolution)
(xv) 27 February 2017, Beth Van Schaak at Just Security (providing an overview of the multiple occasions in which the UN General Assembly has engaged in accountability efforts since WWII)
(xvi) 10 April 2017, Beth Van Schaak at Just Security (analysing the Syria War Crimes Accountability Act of 2017 (bill), which would authorise the US to provide technical and other forms of assistance to investigations and other credible transitional justice efforts, including a potential hybrid tribunal. Kevin Heller offered further comments on the bill at Opinio Juris on 11 April 2017)
D) Domestic Prosecution of International Crimes
(i) 7 March 2016, Mark Kersten at Justice in Conflict (on the issue of the war criminals posing as refugees)
(ii) 12 August 2016, Patrick Kroker and Alexandra Lily Kather at EJIL Talk! (providing a systematic overview of trials and investigations in Germany relating to Syria and discussing the possibilities and limitations of such trials)
(iii) 18 October 2016, Ryan Goodman at Just Security (on the question of official immunity for war crimes)
E) Related Issues
(i) 29 October 2014, Mark Kersten at Justice in Conflict (reflecting on investigations of crimes committed in Syria conducted by private non-governmental organisations)
(ii) 18 November 2016, Melanie Klinkner & Alexandra Lily Kather on EJIL Talk! (on the need for legal regulation concerning the protection and maintenance of mass graves, both for purposes of prosecution of international crimes and the realisation of the right to truth, remedy and reparation for families of the deceased)
X. International Human Rights Obligations and Remedies
(i) 13 April 2013, Tilman Rodenhauser in EJIL Talk! on the Report of the independent international commission of inquiry on the Syrian Arab Republic of 22 February 2012 which applied human rights obligations to Syrian opposition groups. Rodenhauser produced an article on 1 November 2013 for International Humanitarian Legal Studies 3 (2013) on this topic.
(ii) 5 September 2013, Diane Marie Amann (proposing an ICJ suit under the CAT for use of chemical weapons)
(iii) 28 October 2014, Monika Hakimi at Just Security (on a possible obligation of States that support rebels to prevent them from committing atrocities)
Disclaimer: Please note that inclusion in or exclusion from this index does not indicate approval or disapproval of views or reflect a judgement on the quality of argument.
