Professor Mike Schmitt joined a group of scholars and practitioners that convened virtually at the Oxford Institute for Ethics Law, and Armed Conflict in order to discuss the role of international law in responding to the COVID-19 crisis and craft the “Oxford Statement” that will be submitted to the UN Security Council on Friday the 22nd of May 2020.
On the 21st of May Professor Mike Schmitt delivered the second of three half-day webinars on international cyber law for Australian government attorneys and other officials dealing with cyber matters. The session focused on the legal attribution of hostile cyber operations and the response options available to victim states under international law. Joining Professor Schmitt were Liis Vihul, CEO of Cyber Law International, and Professor Marko Milanovic of the University of Nottingham. The final session will be held in June and will deal with issues involving the use of force and international humanitarian law. The webinars are organised by the Australian Department of Foreign Affairs and Trade and offered throughout the Australian government.
On the 18th of May the inaugural University of Reading School of Law’s “Executive Course in International Cyber Law” was launched virtually. Sponsored by the Netherlands Ministry of Foreign Affairs and offered through the Organization of American States, the course brings together 38 government officials from 16 nations and the OAS to examine how international law applies in cyberspace. Participants include diplomats, military officers, law enforcement personnel, cyber agency members, and other government attorneys, policy makers, and cyber operators.
The two-week programme deals with a wide array of legal subjects, such as sovereignty, jurisdiction, the prohibitions on intervention and the use of force, the law of the sea/air/space, self-defence in cyberspace, and international human rights law online. Because states and criminal groups continue use cyber means to exploit the COVID-19 crisis, special attention is being paid to that subject.
Professor Mike Schmitt, who joined the School of Law faculty in April, directs the programme. Plans to offer it around the world in 2020 were disrupted by pandemic travel restrictions but will recommence once they are lifted. In the meantime, the programme has moved entirely online, together with a number of shorter bespoke offerings. For instance, Professor Schmitt and colleagues recently held two webinars for Australian government attorneys and will soon offer a webinar for Women in Cyber. A new course on Human Rights in Cyberspace is in development and is also expected to be certified by the School of Law as Executive Education.
Professor Mike Schmitt’s latest article on ‘International Humanitarian Law and the Targeting of Non-State Intelligence Personnel and Objects’ has been published by the Duke Journal of Comparative & International Law.
The Article examines the targetability of individuals and organizations performing intelligence functions for a non-State group involved in an armed conflict. Specifically, it considers the circumstances under which they lose the international humanitarian law (IHL) protections from, and during, attacks that they would otherwise enjoy as civilians. To do so, the piece deconstructs IHL’s “organized armed group” construct to determine when an intelligence organization can be characterized as a component thereof. Noting that some non-State groups consist of both entities involved in the hostilities and organizations having no relationship to them, the Article introduces the concept of a non-State group’s “overall OAG,” a notion that parallel’s the characterization of a State’s various military units as its “armed forces.” Additionally, the Article assesses the circumstances under which individuals engaged in activities intelligence who are not members of an OAG may be targeted on the basis of their “direct participation in the hostilities.”
Professor Michael Schmitt of the University of Reading’s School of Law has been named the Charles H. Stockton Distinguished Scholar in Residence at the United States Naval War College. The position is named after Admiral Charles Stockton, who wrote the US Navy’s first Code of Naval Warfare, served twice as the President of the Naval War College around the turn of the last century, and became President of George Washington University following his retirement from military service.
The Naval War College has a long tradition of visiting distinguished scholars. The have included Harvard’s Professor Manley Hudson, who was a Judge on the Permanent Court of Justice from 1936 until its dissolution and for whom the American Society of International Law’s Hudson Medal is named, the great legal theorist Professor Hans Kelsen, former President of Tel Aviv University Professor Yoram Dinstein, and many other giants in the field of public international law. Professor Schmitt’s appointment is particularly appropriate. He graduated “first in class” from the Naval War College as a US Air Force Lieutenant Colonel in 1996. In 2007-2008 he returned as a visiting professor, and from 2011-2019 he served as Chairman of the Naval War College’s International Law Department.
The oldest such institution in the world, the Naval War College was established in 1884. Senior officers and government officials from the United States and many other nations attend the year-long course of study in national security policy and strategic studies. The College is also renowned for its research on international security matters and for complex wargaming.
In addition to this position, Professor Schmitt is the Francis Lieber Distinguished Scholar at West Point, a Strauss Center Distinguished Scholar at the University of Texas, and a Senior Fellow at the NATO Cooperative Cyber Defence Centre of Excellence.
Professor Mike Schmitt has co-authored a piece with Durward Johnson on ‘Iranian Gunboat Harassment and the Rules of Engagement’ for Just Security.
Professor Mike Schmitt has been named ‘Editor Emeritus’ of International Law Studies, which is the oldest international law journal in the United States, having first been published in 1895.
Professor Mike Schmitt and Dr Lawrence Hill-Cawthorne have both written chapters for The Oxford Guide to International Humanitarian Law. Mike’s chapter is on ‘International Humanitarian Law and the Conduct of Hostilities’ and Lawrence’s chapter looks at ‘Persons Covered by International Humanitarian Law: Main Categories’.
Professor Michael Schmitt has co-authored an article with Professor Jeffrey Biller of the US Air Force Academy for International Law Studies entitled ‘Classification of Cyber Capabilities and Operations as Weapons, Means, or Methods of Warfare’.
The article discusses how the legal community struggled to keep pace with doctrinal development and technological advances as cyber capabilities were integrated into military operations. Practitioners used the process of “normalization,” adopting terms, concepts, and applications from existing military parlance and practice into the cyber context. In particular, they used terms and doctrine already resident in international humanitarian law (IHL).
While normalization produced acceptable results doctrinally, terminology like cyber attack frequently has different meanings in legal and colloquial discourse. This article examines three terms drawn from classic IHL—weapons, means, and methods of warfare—that are also being applied to cyber operations. They are of particular significance with respect to the use of cyber capabilities during an armed conflict because they are integral to IHL’s various prohibitions and obligations.
The article concludes that cyber capabilities cannot logically be categorized as weapons or means of cyber warfare, but in some circumstances cyber operations may qualify as a method of warfare and are subject to relevant legal prohibitions and limitations, as well as policy restrictions.
Professor Mike Schmitt has been invited to extend his tenure for a third year as a Robert Strauss Center for International Law and Security Distinguished Scholar at the University of Texas. The Strauss Center is a renowned multidisciplinary global affairs research center that brings together expertise from academia and the private and public sectors to pursue practical solutions to emerging international challenges. Professor Schmitt is involved in its cyber security program.
Mike will also be a Visiting Professor at the University of Texas School of Law, from which he graduated in 1984. The Law School is consistently ranked in the top tier of American law schools.