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Koskenniemi the scholar vs. Koskenniemi the commissioner

Sahib Singh of the Uni­ver­si­ty of Vien­na has post­ed a paper on SSRN titled The Ethics of Frag­men­ta­tion: Formalism’s Fal­lac­i­es and the Poten­tial of Inter­na­tion­al Law.  The paper is inter­est­ing not least because it takes a seri­ous and crit­i­cal work at the frag­men­ta­tion report of 2006, pre­pared for the Inter­na­tion­al Law Com­mis­sion by Mart­ti Kosken­nie­mi.  Singh’s paper inves­ti­gates the work of a first-rate schol­ar close­ly affil­i­at­ed with NYU Law’s Hauser Glob­al Law School pro­gram, and for that alone it would be worth read­ing for NYU inter­na­tion­al law stu­dents.  But Singh’s paper is fas­ci­nat­ing because it inves­ti­gates the ten­sion between Koskenniemi’s per­son­al work and the report.  Abstract after the jump.

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Estreicher on Defender’s Duties in Armed Conflict

NYU Law Pro­fes­sor Samuel Estre­ich­er has post­ed an inter­est­ing work­ing paper on SSRN, titled Priv­i­leg­ing Asym­met­ric War­fare?: Defend­er Duties Under Inter­na­tion­al Law.  Here is the abstract:

Schol­ar­ship and advo­ca­cy needs to bring defend­er duties to the fore­front of any dis­cus­sion and inves­ti­ga­tion of armed con­flicts. The nec­es­sar­i­ly joint con­tri­bu­tion of attack­ers and defend­ers alike to civil­ian harm must be rec­og­nized. Any inves­ti­ga­tion of an armed con­flict must focus on the duties of both par­ties and eval­u­ate the fea­si­bil­i­ty of attack­er com­pli­ance with some of the more open-end­ed oblig­a­tions of inter­na­tion­al human­i­tar­i­an law (IHL), such as the so-called duty of pro­por­tion­al­i­ty, as a func­tion in part of the extent of defend­er com­pli­ance with its duties.

There are open areas in IHL. States that have acced­ed to Addi­tion­al Pro­to­col (AP) I are not nec­es­sar­i­ly bound by ICRC inter­pre­ta­tions and they and states that have declined to rat­i­fy AP I can play an active role in for­mu­lat­ing and urg­ing oth­ers to adopt rules of prac­tice that strike the right bal­ance between attack­er and defend­er duties. Even if, for exam­ple, there is wide­spread inter­na­tion­al recog­ni­tion that, at some abstract lev­el, the duty of pro­por­tion­al­i­ty is ground­ed in cus­tom­ary law, the con­tent of that duty is not nec­es­sar­i­ly iden­ti­cal to the word­ing con­tained in AP Arti­cle 57. The effec­tive­ness of such a duty, includ­ing the abil­i­ty of mil­i­tary com­man­ders to imple­ment it in the air and on the ground, may well depend on seri­ous con­sid­er­a­tion, elab­o­ra­tion and imple­men­ta­tion of defend­er duties, for defend­ers are often in the supe­ri­or posi­tion to min­i­mize civil­ian expo­sure to the dan­gers of mil­i­tary oper­a­tions.

Defend­er duties in armed con­flicts is a neglect­ed area of IHL. This needs to change if the over­all mis­sion of this body of law – min­i­miza­tion of harm to civil­ians – is to have any rea­son­able prospect of being real­ized.

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