Can we say, definitively, when an armed conflict no longer exists under international law? The short, unsatisfying answer is sometimes: it is clear when some conflicts terminate as a matter of international law, but a decisive determination eludes many others. Indefinite War: Unsettled International Law on the End of Armed Conflict (February 2017) details the legal considerations and analyzes the significant implications of that lack of settled guidance. In all, our analysis reveals that international law, as it now stands, provides insufficient guidance to precisely discern the end of many armed conflicts as a factual matter(when has the war ended?), as a normative matter (when should the war end?), and as a legal matter (when does the international-legal framework of armed conflict cease to apply in relation to the war?). The current plurality of legal concepts of armed conflict, the sparsity of IHL provisions that instruct the end of application, and the inconsistency among such provisions thwart uniform regulation and frustrate the formulation of a comprehensive notion of when wars can, should, and do end. Image credit: U.S. Air Force photo/Tech. Sgt. Joseph Swafford.
Pilot Empirical Survey Study on the Impact of Counterterrorism Measures on Humanitarian Action
To help determine the measurable impact of counterterrorism laws on humanitarian action, the Counterterrorism and Humanitarian Engagement (CHE) Project at the Harvard Law School Program on International Law and Armed Conflict collected data from humanitarian actors demonstrating the impact (or lack thereof) of counterterrorism laws and regulations on humanitarian organizations and their work. The Pilot Empirical Survey Study on the Impact of Counterterrorism Measures on Humanitarian Action (by Jessica S. Burniske and Naz K. Modirzadeh, March 2017) captures the resulting initial attempt at a pilot empirical study in this domain. Modirzadeh wrote a Comment on the Study (March 2017). That Comment raises considerations for states and donors, for humanitarian organizations, and for researchers. Image credit: DFID.
In this project, we introduce a new concept—war algorithms—that attempts to elevate algorithmically-derived “choices” and “decisions” to a, and perhaps the, central concern regarding technical autonomy in war. We define “war algorithm” as any algorithm that is expressed in computer code, that is effectuated through a constructed system, and that is capable of operating in relation to armed conflict. In introducing this concept, our foundational technological concern is the capability of a constructed system, without further human intervention, to help make and effectuate a “decision” or “choice” of a war algorithm. Distilled, the two core ingredients are an algorithm expressed in computer code and a suitably capable constructed system. Through that lens, we link international law and related accountability architectures to relevant technologies. We sketch a three-part (non-exhaustive) approach that highlights traditional and unconventional accountability avenues. Photo credit: Christiaan Colen (Flickr)
The Costs of Compliance with Counterterrorism Measures
Compliance with any anti-diversion (or pro-beneficiary/end-user) regulations necessarily entails financial and other costs. A risk in the current funding and operational environment is that those costs cannot be accurately and comprehensively evaluated due to lack of valid data. We suspect that, as a result of relevant data and knowledge gaps, many decisions are made on the basis of abstract assessments without the benefit of sound empirical evidence. Our research aims to identify the monetary and other costs to principled humanitarian organizations that arise as those organizations seek to comply with counterterrorism laws and regulations. We anticipate that our analysis will include observations on the data along with possible policy implications for states, donors, and international bodies. Image credit: Becky McCray, “Columnar pad,” Flickr, license: CC BY-NC-ND 2.0.
Self-defense, States’ Silence, and the Security Council
Today, foundational questions concerning the juridical relevance of silence resonate perhaps most significantly with respect to extraterritorial State military attacks that are (purportedly) conducted on a self-defense basis, that are directed against non-state armed groups, and that are undertaken (at least seemingly) without the consent of the territorial State. Such attacks directed against ISIS in Syria make up one prominent set of examples. But they are far from the only instances. We anticipate that our research will contribute to a widening and a deepening of discussions on whether, or not, the relevant provisions in the U.N. Charter and/or the rules of customary international law in this area are — as at least some commentators have claimed — currently undergoing a process of reinterpretation or modification. Image credit: Versello, “United Nations Headquarters,” Flickr, License: CC BY-NC-ND 2.0.
Civilian Protection in Parterned Conflicts: Case-Study Simulation Exercise
This one-session case study zooms in on one of the pivotal decision points in contemporary partnered armed conflicts: whether or not to share intelligence with a partner. With a focus on managing legal responsibility and protecting civilians, participants are primed to quickly weigh countervailing considerations, navigate interoperability challenges, and make strategic decisions in high-pressure, time-sensitive, complex operations involving several States and non-state armed groups. Image credit: Image credit: U.S. Air Force photo/ Tech. Sgt. Nadine Y. Barclay [link]
International Legal and Policy Dimensions of War Algorithms: Enduring and Emerging Concerns
This project seeks to strengthen international debate and inform policy-making on the ways that artificial intelligence and complex computer algorithms are transforming — and have the potential to reshape — war, as well as how international legal and policy frameworks already govern — and might further regulate — the design, development, and use of those technologies. Several states are actively seeking to harness artificial-intelligence techniques and other complex algorithmic systems in connection with war — not only for weapons but also for an array of other areas as well, such as detention, warships, and humanitarian services. Many of these technological developments threaten to outpace regulations. We recently devised a framework concerning war algorithms. (“War algorithms” are algorithms that are expressed in computer code, that are effectuated through constructed systems, and that are capable of operating in relation to armed conflict.) We will conduct research and convene government experts and international policymakers on rapid technological advancements with a focus on legal and policy dimensions of how AI techniques and other complex algorithmic systems are transforming war. We approach these issues from the standpoint of international law. States have agreed that international law is the primary normative framework regulating armed conflict. Yet while technologically advanced armed forces are pursuing developments in the collection of big data, deep learning, and related fields, it remains unclear how those militaries can and will in effect translate and implement, across increasingly complex computational systems, international legal rules, principles, and standards. Many war algorithms might pose challenges and opportunities in respect of several of the normative commitments and the concepts (including attribution, control, foreseeability, and reconstructability) underpinning legal frameworks that currently regulate conduct in relation to armed conflict. Image credits: The U.S. Army [link] and Michael J. Vrabel [link].
Medical Care in Armed Conflict: IHL and State Responses to Terrorism
The surge in armed conflicts involving terrorism has brought to the fore the general question of medical care in armed conflict and the particular legal protections afforded to those providing such care to terrorists. Against this background, we evaluate international humanitarian law (IHL) protections for wartime medical assistance concerning terrorists. Through that lens, we expose gaps and weaknesses in IHL. We also examine tensions between IHL and state responses to terrorism more broadly. Photo credit: Army Medicine (Flickr).
Counterterrorism and Humanitarian Engagement
HLS PILAC grows out of and expands upon the Counterterrorism and Humanitarian Engagement Project (CHE Project) of the HLS-Brookings Project on Law and Security. With generous support from the Swiss FDFA, as well as project support from the Norwegian Ministry of Foreign Affairs facilitated through the Norwegian Refugee Council, the CHE Project produces independent research and analysis on emerging challenges of humanitarian protection in situations of armed conflict where listed armed groups control territory. Photo credit: U.N. Photo/Stuart Price (Flickr).
Armed Non-State Actors and International Human Rights Law: An Analysis of the U.N. Security Council and U.N. General Assembly
A June 2017 briefing report with annexes provides an overview of research conducted by HLS PILAC concerning modalities in which the U.N. Security Council and the U.N. General Assembly have addressed ANSAs with respect to human rights; ways in which these U.N. principal organs have distinguished between different types of ANSAs; and the consequences of these organs possibly establishing responsibility of ANSAs in relation to the protection and fulfillment—or, at least, the non-abuse—of human rights. While it is incontrovertible that the U.N. Security Council and the U.N. General Assembly have recognized, at a minimum, that the conduct of at least some ANSAs can amount to violations or abuses of human rights, it is not currently possible to state that either of these principal U.N. organs has taken sufficient steps to formally endow ANSAs with human-rights obligations in general under international law. Image credit: UN Photo/Mark Garten [link], Dec. 4, 2000.
International Counterterrorism Efforts
The number, range, and scope of intergovernmental entities and initiatives with a counterterrorism component have grown significantly in recent years. Today, a web of counterterrorism laws, policies, and enforcement approaches is developed and overseen by over 70 international institutions, bodies, and networks around the world. These efforts focus on everything from promulgating international legal rules to developing global policy standards, from drafting model criminal laws to promoting intelligence- and information-sharing. To date, the full scope of these efforts has not, to our knowledge, been captured in one place. We set out to identify and summarize these efforts in a single online resource. Photo credit: U.S. Army (Flickr)
Case Study — Somalia in Crisis: Famine, Counterterrorism, and Humanitarian Aid
In collaboration with the HLS Case Studies Program, we develop real-world-based case studies for the classroom and for professional instruction. As part of each exercise, students or other participants act as senior-level decision-makers to resolve legal, policy, ethical, or operational dilemmas that arise in relation to armed conflicts. In February 2015, PILAC published case studies on “Somalia in Crisis: Famine, Counterterrorism, and Humanitarian Aid,” including two related role-play exercises: the “National Security Council Dilemma” and the “NGO General Counsel Dilemma.” All of those PILAC case studies are available free of charge to anyone who registers as a member of the HLS Case Studies website. Photo credit: The Open University (Flickr).
As part of the Extraterritorial Use of Lethal Force Project, we set out to collect states’ statements made from August 2011 through November 2016 concerning use of force in relation to Syria. A primary aim of the database is to provide practitioners with a comparatively broad set of reliable resources regarding states’ perspectives, with a focus on legal parameters. A premise underlying the database is that through careful documentation of diverse approaches, we can better understand those perspectives. Image credit: UN Photo/Loey Felipe [link].
Extraterritorial Use of Lethal Force
In recent years, the range and number of state actors undertaking extraterritorial lethal-force operations have drawn attention to — and often criticism of — the various international and domestic legal authorities referenced by those actors. The question of where and how the legal framework governing counterterrorism intersects in extraterritorial lethal-force operations with the jus ad bellum, IHL, human rights law, the law of state responsibility, and international criminal law has arisen in connection, for example, to the use of specific weapons platforms, such as unmanned combat aerial vehicles (or drones), and to attacks targeting leaders of particular groups, such as al-Qaeda. Unlike with the jus ad bellum, IHL, and human rights law framings, however, the counterterrorism framing does not appear to require the same level of political consensus to legitimize these operations. These questions have grown more complex as the Security Council has increasingly referenced multiple, purportedly simultaneously applicable, bodies of law, such as in relation to Libya, Mali, Somalia, and Syria. Photo credit: U.S. Department of Defense (Flickr)
Suppressing Foreign Terrorist Fighters and Supporting Principled Humanitarian Action
In 2014, reports suggested that a surge of foreign jihadists were participating in armed conflicts in Syria, Iraq, and elsewhere. Meanwhile, many states continue to fund and otherwise throw their support behind life-saving humanitarian relief for civilians in armed conflicts around the world—including conflicts involving terrorists. The project highlights the most salient issues at the intersection of counterterrorism measures and humanitarian aid and assistance, with a focus on the ascendant “foreign terrorist fighter” framing. We also raise, for critical feedback and assessment, a provisional methodology for evaluating the following question: is it feasible to subject two key contemporary wartime concerns—the fight against foreign terrorist fighters and supporting humanitarian aid and assistance for civilians in terrorist-controlled territories—to meaningful empirical analysis? Photo credit: Russ Allison Loar (Flickr).
Commanding Knowledge: The Line of Fire in the IHL Principle of Proportionality
To comply with the laws of war, what should a commander know before launching an attack against a military objective? How are military legal advisers interpreting, shaping, and operationalizing those standards on modern battlefields? And how are prosecutors and judges at the national and international levels defining violations of those standards? This project explores international legal standards regarding what decision-makers in the armed forces are expected to know in order for targeting decisions to be lawful. We will examine how those standards have developed over time, as well as how states are interpreting and implementing those standards today, especially in light of developments in war-fighting technologies and intelligence-gathering techniques. We plan to pursue these and related research questions from the perspectives of a range of actors, including military commanders, armed forces legal advisers, and prosecutors. Photo credit: U.S. Department of Defense (Flickr).