Michael N. Schmitt's research while affiliated with University of Exeter and other places

Publications (57)

Article
Full-text available
Globalization has not conquered sovereignty. Instead, the notion of sovereignty occupies center stage in discussions concerning the normative architecture of cyberspace. On the diplomatic level, the term is generally employed in its broadest sense, one that signifies freedom from external control and influence. For instance, when Western states rai...
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The law of targeting rests at the heart of modern warfare, as well as contemporary controversies over such matters as drones and autonomous weapons . While the weaponry and tactics of targeting continue to evolve with unprecedented advances in technology and innovation, the fundamental principles of targeting law will remain binding rules for the f...
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This book offers a multidisciplinary treatment of targeting. Historically, destruction of enemy forces and equipment has been the primary, albeit not exclusive, means of securing ultimate victory. Today, after a long evolutionary process and enabled by technological developments, the contemporary effects-based approach in targeting aims to achieve...
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Classically, states and non-state actors were differentiated not only by disparities in legal status, but also by significant imbalances in resources and capabilities. Not surprisingly, international law developed a state-centric bias to account for these imbalances. Cyberspace and cyber operations, however, have closed a number of formerly signifi...
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This article responds to the two articles published in this journal that criticise the approach taken by the International Group of Experts (IGE) who prepared the Tallinn Manual on the International Law Applicable to Cyber Warfare. Their authors took issue with the approach of the majority of the IGE over the question of whether data qualifies as a...
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The most significant debate regarding the applicability of international humanitarian law to cyber operations involves interpretation of the rules governing cyber “attacks”, as that term is understood in the law. For over a decade, the debate has been a binary one between advocates of the “permissive approach” developed by the author and a “restric...
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This article examines two issues raised by Professor Goodman’s article published in this volume of EJIL: (1) a purported obligation under international humanitarian law (IHL) to minimize harm to enemy fighters; and (2) a purported IHL duty to capture rather than kill when doing so is feasible in the circumstances. It notes that situations in which...
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This article is a brief reflection on the applicability of international law to cyberspace. It asserts that international law applies in cyberspace, particularly with respect to the use of cyber force. It goes on to suggest that although the law applies, there is room for interpretive flexibility of the extant norms in light of the unique character...
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This article sets for a framework for examining the legality of extraterritorial lethal strikes ("targeted killings") in international law.
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Examines the law of armed conflict (international humanitarian law) issues surrounding the fielding and use of autonomous weapon systems.
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Examines the speech by Legal Advisor Harold Kon on Cyber Law in light of the Tallinn Manual on the International Law Appicable to Cyber Warfare.
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Examines the international humanitarian law implications of autonomous weapon systems. Responds to criticism, such as Human Rights Watch's Losing Humanity report.
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This article examines the classification of conflicts consisting of only cyber operations under international humanitarian law. ‘International armed conflicts’ are those that are ‘armed’ and ‘international’. The article contends that the former criterion is met when cyber operations amount to an ‘attack’ because they injure individuals or damage ob...
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Examines how conflicts will be classified as international or non-international in future wars.
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Examines the legal classification of the war in Iraq through its various phases.
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A cyberattack involving military or intelligence operations might not rise to the level of a “use of force” under international law. Legal experts generally agree that to qualify as an armed attack, a cyberattack must result in death or a significant degree of injury to persons or physical damage to property.
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Examines the legal status under international humanitarian law of opposition fighters during a non-international armed conflict.
Book
The Yearbook of International Humanitarian Law is the world's only annual publication devoted to the study of the laws governing armed conflict. It provides a truly international forum for high-quality, peer-reviewed academic articles focusing on this crucial branch of international law. Distinguished by contemporary relevance, the Yearbook of Inte...
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This chapter explores the jus ad bellum—that aspect of international law governing the resort to force by States—applicable to counterterrorist operations. It begins by considering the possibility of a mandate to conduct such operations under Chapter VII of the UN Charter, concluding that such an authorization from the Security Council would be law...
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This chapter examines the international and US domestic law governing assassinations conducted or sponsored by States. The issue first came to widespread contemporary attention during the first Gulf War of 1990–1991 when US forces allegedly targeted Iraqi President Saddam Hussein. Since then allegations of “decapitation” strikes against regime lead...
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This chapter examines aerial blockades, a relatively untested method of warfare. Since sea blockades have long been an element of naval warfare, historical examples of naval blockades are discussed as a means of placing aerial blockades in context. Drawing on the law of naval warfare relevant to blockades, the chapter suggests legal criteria for, a...
Article
This chapter examines the international humanitarian law governing the conduct of “attacks”. In particular, it identifies and analyzes topics in the law of attack that are presently unsettled as a matter of law. Issues addressed include the scope of the term “military objectives”, the meaning of the term “attack”, application of the rule of proport...
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This chapter examines the international humanitarian law principle of discrimination in the context of likely twenty first century warfare. The principle requires that those engaged in hostilities distinguish between civilians (and their property) and military objectives. The continued viability of the norm in light of future methods and means of w...
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Examines cyber operations in light of the jus ad bellum, especially the prohibition on the use of force in art. 2(4) of the UN Charter and the right of self-defense under art. 51.
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This article explores the legal issues raised by the use of drones (unmanned aircraft systems) in armed conflicts. In particular it assesses such use from the perspective of the jus ad bellum, that component of international law governing the resort to force by States, and the jus in bello (or international humanitarian law), the international law...
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Part Zero International humanitarian law in general, Part One Sources and general principles, Part Two Conflicts, armed forces and combatants, Part Three Protected persons, Part Four Methods, means and types of warfare, Part Five Termination of armed conflicts, Part Six International criminal law, Part Seven Implementation of IHL, Part Eight The la...
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Correspondents’ Reports is compiled and edited by Tim McCormack with the excellent assistance of James Ellis, primarily from information provided to the YIHL by its correspondents but also drawing on other sources. The section does not purport to be a fully inclusive compilation of all international humanitarian law-related developments in every St...
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This article examines the legal issues raised by establishment of the no-fly zone over Libya pursuant to UNSC Resolutiion 1973.
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This article examines the jus in bello (international humanitarian law) governing cyber operations during an armed conflict.
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This chapter examines the legal norms governing investigations of possible international law violations during an armed conflict. It begins by setting forth those rules derived from the 1949 Geneva Conventions, 1977 Additional Protocols and customary law. Since human rights norms also apply in armed conflicts, the chapter surveys human rights inves...
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Examines the impact of changes in the nature of warfare, including technological advancements, on the international humanitarian law principle of discrimination.
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The draft piece looks at the changing chracterization of the conflict in Iraq from inception of hostilities: international armed conflict, belligerent occupation, and non-international armed conflict.
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This paper examines one aspect of the ICRC's Interpretive Guidance on the Notion of Direct Participation in Hostilities, the constitutive elements. The constitutive elements address the issue of whether an act by a civilian in hostilties amounts to direct participation, such that he or she loses protection from attack.
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Examines the IHL aspects of targeting in Afghanistan, as well as the influence of policy on targeting practices.
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This chapter examines the international humanitarian law (IHL) principles of military necessity and humanity. It argues that the two principles undergird the entire body of IHL. Therefore, each individual IHL rule represents a delicate balance fashioned by States to accommodate both their legitimate need to be able to fight effectively on the battl...
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Civilians who directly participate in hostilities lose their protection from attack for such time as they so participate. Additionally, they neither factor into proportionality calculations nor need be considered when taking “precautions in attack”. The principle reflects both treaty and customary international law. In 2009, the International Commi...
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In October 2008, upon the request of the Afghan government, NATO Defence Ministers meeting in Budapest agreed that ‘ISAF [International Security Assistance Force] can act in concert with the Afghans against facilities and facilitators supporting the insurgency, in the context of counternarcotics, subject to the authorization of respective nations’....
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Examines the concept of debellatio in international law, including the issue of whether it survives in contemporary law.
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Examines IHL in modern conflict and argues that counterinsurgency, counterrorism and other forms of warfare are creating a normative environment for government forces that is more restrictive than required by IHL.
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This volume was produced to celebrate the fortieth anniversary of the Israel Yearbook on Human Rights. Forty years have yielded an impressive forty annual volumes. When it was started in 1971, the Yearbook was the first of its kind anywhere in the world. It has always understood its mandate as transcending the narrow borders of the discipline of ei...
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Uniformed lawyers—judge advocates—are uniquely situated at the heart of the American civil-military relationship. A recent article published in this law review argued that this placement has hindered military operations and disrupted civilian control over the military; left unaddressed, it will negatively affect the nation's ability to fight and wi...
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This paper explores the relationship between the international law on the use of force and the changing nature of conflict, and argues that terrorism is affecting the jus ad bellum, while asymmetrical warfare is driving evolution in the jus in bello.
Chapter
This paper examines the impact of asymmetrical warfare on the application of international humanitarian law on the battlefield.
Article
Examines those aspects of the law of targeting that pose particular problems from the perspective of international humanitarian law. Topics include military objectives, civilian morale, leadership targeting, meaning of the term "attack", proportionality, human shields, and precautions in attack.
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Examines the IHL concept of direct participation by civilians in hostilities, with particular emphasis on the US experience with contractors and civilian employees. Predated the ICRC's Interpretive Guidance on the subject and was one of the papers informing the workings of the expert group.
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Examines the relationship between early 21st Century security strategies and the law governing the use of force in international law, the jus ad bellum. Particular attention is paid to the use of force against treansnational terrorists (and related subjects such as crossing borders to attack terrorirsts, state sponsorship) and preemption, weapons o...
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La guerre de l'information s'annonce comme le nouvel outil révolutionnaire qui sera utilisé pour se battre dans les conflits armés. Une attaque contre les réseaux informatiques (Computer Network Attack, CNA) désigne toute opération visant à perturber, refuser, dégrader ou détruire l'information résidente dans les ordinateurs ou les réseaux informat...
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This Article explores the acceptability under the jus ad bellum, that body of international law governing the resort to force as an instrument of national policy, of computer network attack. Analysis centers on the United Nations Charter's prohibition of the use of force in Article 2(4), its Chapter VII security scheme, and the inherent right to se...
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Describes the US view of 21st century warfare and asks how such warfare will influence, and be influenced by, the law of armed conflict. Looks at elements of the law that do not fit well with such a vision. Addresses both the jus ad bellum and the jus in bello.
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Examines the legal basis for the establishment of no-fly zones, with particular attention paid to the practical aspects of crafting ROE that are legal and effective in enforcing such zones.
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The Gulf War highlighted the potential for destruction of the environment during armed conflict. In particular, the intentional dumping of millions of barrels of oil into the Persian Gulf in the immediate aftermath of the air war' s commencement and the setting ablaze of over 500 oil wells as the war came to a close generated a flurry of activity w...
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Examines the Israeli invasion of Lebanon in 2006 (Operation Change Direction) from the perspective of the Jus ad Bellum.
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Examines the international humanitarian law implications of effects-based operations in the context of aerial warfare. Traces the evolution of airpower doctrine.

Citations

... authors, and the reaction from the leading experts involved in its drafting was not long in coming. Michael N. Schmitt and Liis Vihul came out with arguments that sovereignty is a primary norm of international law and the obligations conferred on states by this norm are independent from those stemming from the rules on prohibition of use of force and on non-interference into domestic affairs [8,9]. Nevertheless, the authors acknowledge the absence of generally recognized and clear criteria for interpretation of principle of sovereignty in the context of cyber operations [9]. ...
... The latter aspect underscores the limited effectiveness of international law in cyber age, when international institutions have no authority to regulate nonstate actors. Schmitt and Watts stress that "while cyber operations by a state may violate the sovereignty of the state where the non-state actors are located, cyber operations by non-state actors that are not attributable to a state as described below do not constitute a violation of sovereignty" (Watts, 2016). ...
... To give one example, the military applications of the IoT are likely to be immense. While there has been increasing attention to cybernorms, specifically as relates to cyberwarfare [5,56,57,84] , until recently, the cyberwarfare discussion has tended to focus on state-state conflict (e.g., Stuxnet), or state-substate conflict (e.g., North Korea hacking Sony) [57] . Substate-substate conflict has largely been ignored in this debate, and that is where much of the IoT action will fall. ...
... Drone strikes and targeted killings are institutionalized and normalized elements of contemporary US counterterrorism policy and practice, renewing debates regarding the legality of targeted killings and whether they amount to assassination (Schmitt 1992;Melzer 2008;Alston 2011). In international relations (IR), international norm scholars use assassination as an analytical lens for evolving norms and meta-norms (Thomas 2000;Großklaus 2017). ...
... Такой вывод 22 Женевский протокол (I), 240. 23 Женевская конвенция о защите гражданского населения во время войны, ст. 6, Август, 12, 1949, с. 171. ...
... Given this, there is a potential case to be made that killing such men would violate the principle of necessity, as embodied in AP I, Art. 35 [12][13][14][15][16][17]. ...
... Whether in response to treaties (Yoo & Sulmasy, 2007), deviant soldier action (Borch, 2001) or international humanitarian law (Risius, 2005), the role of military lawyers has increased dramatically "from back-line staff officers to wartime advisors" (Yoo & Sulmasy, 2007, p. 841). In both the U.S. and British armies, legal officers (commonly referred to as judge advocates or JAGs) now deploy alongside commanders and are found in every major combatant headquarters (Kramer & Schmitt, 2008). Military lawyers are far more than simply present, but filling an active role "an integral part of operational planning" (Risius, 2005, p. 21). ...
... 165 Military necessity has historically been considered an expansive concept that prohibited only attacks that led to no concrete military advantage. 166 In the case of using force on land to suppress piracy at sea, however, "military advantage" could be defined more narrowly to give precise effect to the Council's mandate. Anything used in the course of piratical attacks could be destroyed, but if a vessel, vehicle, or other piece of equipment is not directly enabling piracy, attacking it might be disallowed. ...
... The legal framework that is referred to encompasses the four Geneva Conventions and their first two Additional Protocols, the international customary law and general principle of law, the Convention restricting or prohibiting the use of certain conventional weapons, and judicial decisions. Arms control treaties, such as the Nuclear Non-Proliferation Treaty and the Chemical Weapons Convention, are often mentioned as providing guidance for action in the case of kinetic cyber attacks (Schmitt 2013 (Lin 2012;O'Connell 2012). ...
... It has been reported that the number of low-level targets is much higher than the number of high-level targets (Barrinha/da Vinha 2015, 23;Wilcox 2015, 155). As Michael Schmitt explains, "this classification [as a high value target, SG] requires that identity, function, and importance be established in advance […]." (Schmitt 2013, 100) Because of their nature they have also been termed 'named killings' (Gross 2006, 324) or 'personalised strikes' (Williams 2015, 96f.). ...