ELAC has served as a globally-recognized hub for the study of two important normative developments within the UN system that elevate the protection of civilians: the principle of the responsibility to protect (endorsed by all heads of state and government at the 2005 World Summit), and the protection of civilians in peacekeeping (initiated within the UN Security Council in 1999). Researchers have examined the origins and evolution of both normative agendas over the past two decades (Paddon Rhoads and Welsh, 2019); the nature and degree of implementation - both institutionally and in relation to particular country situations (Welsh, 2013; 2014; Paddon Rhoads 2016); and the ways in which both RtoP and POC have been contested, particularly in the wake of cases such as Libya and Syria (Welsh, 2016; 2019). Members of ELAC have been centrally involved since 2010 in the conceptualisation of RtoP within the UN system, particularly with respect to its preventive dimension, its so-called “second pillar”, and its relationship to non-state armed groups.
ELAC offers a focal point to scholars and practitioners interested in the prevention of atrocity crimes perpetrated against civilians, (these include genocide, crimes against humanity, war crimes, and ethnic cleansing), including as perpetrated against vulnerable populations such as women and children. Some of ELAC’s early work broke new ground by conceptualising atrocity prevention as ‘crimes prevention’, and distinct from conflict prevention; by creating a strategic framework to analyse both systemic and targeted prevention; and by analysing the conditions for effective prevention in particular cases (Sharma and Welsh, 2015).
Through both normative and policy-oriented research, we monitor and analyse international action to prevent or halt ongoing atrocity crimes; explore strategic, tactical, and analytical challenges to norms implementations as well as the improvement of preventive capacity; support the adoption of preventive tools and strategies; and ensure the coherent development of both normative agendas, and of international legal and policy standards (Welsh, D'Alessandra).
The Law of Armed Conflict or International Humanitarian Law (IHL) is the law that regulates the conduct of participants during an armed conflict. This law includes rules for the protection of victims of armed conflict, i.e those who do not or who no longer participate in hostilities, and also rules regulating the means and methods of warfare. While many of these rules are set out in the treaties codifying this branch of law, a great many of the rules, particularly those applicable in non-international armed conflicts, are to be found in customary international law. Despite the importance of this area, the identification or interpretation of these rules continues to be a challenge.
Members of ELAC conduct research into various aspects of this branch of law. The emphasis is on clarifying the law, uncovering the philosophical and normative basis for the rules in this branch of international law, examining the implementation of the law, as well as analysing the relationship between this branch of law and other bodies of law applicable in armed conflict.
ELAC engages with national, international and non-governmental bodies working on and with IHL. Some of our work in this area has been funded or commissioned by, or produced for use by such bodies. ELAC co-organizes the annual Transatlantic Workshop on International Law and Armed Conflict which brings together lawyers from academia, governments and armed forces, civil society, and the International Committee of the Red Cross to discuss challenges in IHL.
It is estimated that in 2019 nearly 132 million people will be in need of humanitarian assistance and protection, the majority because of the impact of conflict. ELAC’s work on humanitarian action aims to clarify and promote discussion on some of the key normative questions and challenges underpinning humanitarian response (Akande, Gillard). It has included the elaboration of the Oxford Guidance on the Law relating to Humanitarian Relief Operations in Situations of Armed Conflict, and convening of expert meetings on the tensions between sanctions and counter-terrorism measures, and on humanitarian actors’ engagement with accountability mechanisms. This workstream has also analysed the legal framework regulating ‘safe areas’, and the incidental harm side of proportionality assessments – both issues with direct impact for humanitarian action and the protection of civilians in conflict.
Future research will consider conflict-related food insecurity in the follow up of Security Council resolution 2417, and the law regulating sieges, blockades and other restrictions, with a focus on their impact on humanitarian relief operations.
When is it morally permissible for states to resort to force? Who is liable to being harmed in war? Does the legal distinction between combatant and civilian express a meaningful difference in individuals’ moral status? When are belligerents morally obligated to sue for peace? For over a decade now, ELAC has provided a focal point for scholars thinking about these and other questions on the morality of war (Rodin, Dill, Shue, McMahan, Ryan). The programme has hosted several workshops, which resulted in published symposia addressing i.a. the Morality of Defensive War , Law and Morality in War, and Ending Wars.
Cyberwar, drones, autonomous weapon systems, state surveillance, the potential for enhancing individual warfighters’ biological capacities - all these are new developments in technology which throw up challenges for militaries and policy-makers. In many cases, a new technology offers some kind of advantage to the military which adopts it, in terms of tactical performance, or strategic preparation, but which raise difficult ethical questions concerning whether and what the limits are on when these are used. Should there be an international convention banning the use of so-called ‘killer robots’? Could a cyberattack constitute a casus belli? Scholars at ELAC address these and related questions, both at the theoretical level, and in engagement with policy-makers (Simpson, Akande). Our work includes early engagement with the debates on the ethics of the use of autonomous weapons and on the legal framework regulating the use of armed drones.
ELAC and its memebers work to strengthen the laws, norms, and institutions delivering justice and accountability for war crimes, crimes against humanity, genocide, and the crime of aggression. We offer a focal point for scholars interested in the discipline, including by hosting workshops and meetings, some of which result in published papers in the field. We regularly engage with governments, intergovernmental and non-governmental organisations on institutional, procedural and substantive aspects of international criminal law, providing our expertise in relation to current challenges relating to accountability. We also participate in the development of international legal standards and tools in this area. Members have been involved in in the negotiations of formal legal instruments in this field (Akande, D'Alessandra), as well as in the preparation of guidelines, manuals and compilations of international best practice (D'Alessandra 2016; 2017).
A major focus of current research concerns the strengthening of investigations of conflict-related crimes, both for the purposes of accountability and as a tool of prevention, as well as the role of the multiplicity of actors operating in such environments.
Although international humanitarian law is the body of law specifically designed for application in armed conflict, lawyers and philosophers increasingly recognise the importance of human rights in armed conflict. ELAC has been at the forefront of study of “revisionist just war theory” which begins from the premise that even in war, individuals can only be deprived of their human rights where they have done something to make them liable to forfeit those rights (Rodin, Dill).
Scholars associated with ELAC have also engaged in the legal debates about the application of human rights law in armed conflict (Akande, Dill, D'Alessandra). Questions that arise here include: Does human rights law continue to apply in armed conflict? Does the content of human rights law differ in peacetime than in time of armed conflict? When, if at all, do states engaged in military operations owe human rights obligations to persons outside their territory? What should be the proper relationship between human rights law and international humanitarian law? Can they be applied simultaneously or does one prevail over the other?
Malicious activities in cyberspace have increasingly proliferated in the past few years, now more than ever posing a risk to States’ security and other essential interests. As a global phenomenon calling for global responses, cyber operations are subject to existing international law. This includes general principles of international law as well as the specific rules applicable to the use of force, international humanitarian law and international human rights law, as fleshed out by the Tallinn 1.0 and 2.0 Manuals. While many of these rules call for clarification, the obligation of due diligence in cyberspace is one of the areas in most need of further research.
Our current research at ELAC focusses on the extent to which States have a duty to take affirmative action to stop or prevent their territory, or persons and objects within their jurisdiction or control, from knowingly being used to cause internationally wrongful acts. Key research questions include:
- What level and type of harm trigger the obligation of due diligence? Does it include harm to private entities and their property? Does it include data corruption?
- What establishes the necessary link between harmful activities and the potential duty-bearer?
- What is the content of the obligation and, in particular, whether it includes a duty to prevent imminent operations or simply halt ongoing ones?
- Can and should we think about cyberspace beyond physically or territorially grounded infrastructures or resources?