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Home Archive for category "Armed Conflict"

Compliance with IHL by Non-State Armed Groups: Some Practical Reflections at the 70th Anniversary of the 1949 Geneva Conventions

Published on August 21, 2019        Author: 

That non-State armed groups (NSAGs) engage in hostilities on a frequent basis is not news. Indeed, NSAGs are active in the majority of contemporary armed conflicts (at 19). What seems to have changed in the last few years is the increasing attention that the international community is paying to their behavior, largely due to the impact that they have on civilians. While it is undisputed that international humanitarian law (IHL) binds NSAGs (para 505), finding effective strategies to enhance their level of compliance remains challenging, especially considering that the baseline expectation is generally low (at 69).

Interestingly, while some NSAGs have been responsible for IHL violations, others have also shown a degree of compliance for certain rules during non-international armed conflicts (NIACs). As this year marks the 70th anniversary of the four Geneva Conventions of 1949, some reflections related to how parties to armed conflicts – in this case, NSAGs – actually behave are in order.

Describing NSAGs’ Variations

Generally, compliance has been defined as “behavioral conformity with existing norms and regulations” (at 65). For NSAGs, this implies the observed match between their behavior and their international obligations.

As parties to armed conflicts, NSAGs should not be seen as entities that either violate or respect international law without exception. Instead, they may follow certain rules while disregarding others. For instance, a NSAG may respect the prohibition of using and recruiting children in hostilities, but may summarily execute detainees or take hostages. Similarly, a group may deliberately attack health care facilities and transports in breach of IHL, while prohibiting the forcible displacement of civilians. At the same time, these non-State entities often modify their behaviors throughout the hostilities, reflecting and increase or decrease in their level of compliance with humanitarian norms. Wood has identified that civilian victimization is “anticipated during moments in which the viability of the groups is threatened or when it faces significant military setbacks” (at 15). Variation is particularly evident during peace processes (here, for an example). When a NSAG looks for political recognition, it might adopt a different attitude than a group whose main purpose is to show its strength or to terrorize the civilian population living in the territory it controls.

Accordingly, compliance with IHL should be conceived as a spectrum, rather than an on/off switch. Read the rest of this entry…

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Hospital Bombings: Empirical and Theoretical Fallacies of Those Rejecting a Ban

Published on August 16, 2019        Author:  and

The argument we advance in our recent EJIL Article, ‘‘Hospital Shields’ and the Limits of International Law’, emerged from analysis of empirical data showing how, during the past several years, hospitals were being bombed on a daily basis. Comparing these attacks with official statements released by actors suspected of bombing hospitals, we discovered that one of the recurrent arguments used to legitimise the strikes was that the facilities had been transformed into ‘hospital shields’ and used to conceal military targets. We then decided to reconstruct the history of hospital bombings and found that since 1911 — the first time medical units were bombed from the air — belligerents have consistently justified aerial strikes by claiming that the medical units were being used to hide combatants or harbour weapons.  

This revelation led us to examine in detail the historical development of the legal clauses dealing with the protection of medical units in armed conflicts. Our analysis revealed that the clauses include a number of exceptions that have allowed belligerents to assert that the bombing was carried out in accordance with IHL. We argue that belligerents can do this since hospitals occupy a spatial and legal threshold during armed conflict, and that IHL, which is informed by the rigid distinction between combatants and noncombatants, does not have the vocabulary to deal with liminal people and objects. This, we maintain, enables belligerents to use the law to justify the attacks.  

Our assumption throughout the paper is that IHL is subject to constant interpretation and reinterpretation, and that the way states interpret the law — even if we disagree with their interpretation — helps to establish the law’s meaning. International law is, after all, shaped by states, and through their practices, manuals and utterances they help determine the interpretation of its clauses. Hence, the fact that for over a century many states, among them the most powerful ones, have justified the bombing of hospitals by claiming that they were used as shields is not something we can dismiss by simply claiming that they are misinterpreting the law. After all, those very states introduced the hospital shields exception.  Read the rest of this entry…

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Protecting the Environment in Non-International Armed Conflicts: Are We There Yet?

Published on July 16, 2019        Author:  and

The International Law Commission (ILC) during its current 71st session has provisionally adopted, on first reading, the Draft principles on the protection of the environment in relation to armed conflict. The first-reading text had taken five years to prepare, under the successive leaderships of Special Rapporteurs Ms. Marie G. Jacobsson (2013 – 2016), and Ms Marja Letho (2017-2019). The last report of Special Rapporteur Letho (2019) completed the work on this topic, focusing in particular on the question of environmental stresses related to non-international armed conflicts (NIACs). This blog post deals first with certain general issues as to the scope and form of the draft principles, and then discusses whether the draft principles are sufficiently responsive in the context of NIACs.

Scope and methodology of the topic

With respect to the ratione temporis of the draft principles, the ILC employed a temporal approach by drafting provisions structured according to three phases of an armed conflict: before (preventive measures, but also principles of a more general nature of relevance to all three temporal phases), during (the conduct of an armed conflict) or after (post-conflict measures in relation to environmental damage) an armed conflict. The rationale of the topic was to address the law of armed conflict but also other areas of international law. The scope of the topic (peacetime and wartime obligations) inevitably influenced the outcome, which led the ILC to adopt “principles” at a more general level of abstraction, albeit with different normative values, from recommendations to fully binding rules. Read the rest of this entry…

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The Ituri Conundrum: Qualifying Conflicts between an Occupying Power and an Autonomous Non-State Actor

Published on July 15, 2019        Author: 

Last week, Trial Chamber VI of the International Criminal Court (ICC) issued the long-awaited judgment in the Ntaganda case. The judges found the defendant guilty on all 18 counts, including the ICC’s first ever conviction for sexual slavery. Although the Chamber is yet to resolve matters related to sentencing and reparations, the decision marks an important milestone in the proceedings, which began with an arrest warrant issued back in August 2006 (Mr Ntaganda surrendered himself to the ICC in March 2013).

Readers of this blog will be familiar with the case as well as with some of the controversies surrounding its progress. In brief, Bosco Ntaganda was the Deputy Chief of Staff of the Patriotic Forces for the Liberation of Congo (FPLC), the armed wing of the Union of Congolese Patriots (UPC). The UPC/FPLC was one of the armed groups involved in the so-called Ituri conflict, which took place between 1999 and 2003 in the Ituri region in the north-eastern Democratic Republic of the Congo (DRC). Before the ICC, Mr Ntaganda was charged with 13 counts of war crimes and five counts of crimes against humanity, all allegedly committed in Ituri between 2002 and 2003.

The judgment, which fills over 500 pages, no doubt deserves careful scrutiny before any general pronouncements can be made as to its overall quality and rigour. Instead of analysing the judgment as a whole, this post focuses on a narrow question related to the Chamber’s legal qualification of the conflict in Ituri at the material time (discussed in paras 699–730 of the judgment). In particular, I am going to look at how international humanitarian law (IHL) qualifies conflicts between an occupying power and an autonomous non-State actor. The analysis builds on my research into complex conflict situations, which was published as part of my recent book on Internationalized Armed Conflicts in International Law (OUP 2018, especially chapter 3).

The situation in Ituri between 2002 and 2003 was notoriously convoluted, Read the rest of this entry…

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Clarifying the Contours of the Crime of Starvation

Published on June 27, 2019        Author:  and

The Lack of Prosecutions

Starving civilians as a method of warfare has long been prohibited and criminalised across the full spectrum of international legal frameworks, yet despite this criminalisation and its grave human cost, there has yet to be a prosecution of starvation on the international level. Consequently, the crime and its intersection with a wide range of other violations remain entirely unexplored.

The crimes that have oc­cupied the international courts are those most frequently associated with an ongoing armed conflict. Whether the persecutory rapes in Bosnia, the slaughter in Rwanda, or the amputations of civilians in Freetown in Sierra Leone. This is the type of criminal conduct that appears to have shaped the perception of the type of deaths and injury that are most appropriate for prosecution in modern international criminal courts, with starvation languishing on the margins of prosecutorial imagination and practice.

In a legal policy paper recently issued by Global Rights Compliance (GRC), we set out in more detail the reasons behind the dearth of prosecutions and explore the paths to prohibition and accountability for the widespread and systematic death and suffering that it causes worldwide, with a focus on criminal prosecutions.

The F Word – The Return of Famines

Famines have returned and they strike where accountability (political or criminal) fails. In 2017 the UN identified four situations of acute food insecurity that threatened famine or breached that threshold, in north-eastern Nigeria, Somalia, South Sudan and Yemen. In December 2018 famine was formally declared across regions of Yemen, this is likely to be the famine that will define this era. Starvation is also being used as a weapon of war in Syria and the Democratic Republic of Congo. The Gaza Strip and in Venezuela also suffer from the manipulation, obstruction and politicization of food and humanitarian aid. Read the rest of this entry…

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Russian Agents Charged with Downing of MH17; MH17 Cases in Strasbourg

Published on June 20, 2019        Author: 

Yesterday international investigators charged three Russian nationals and one Ukrainian national before Dutch criminal courts for the 2014 downing of Malaysian Airlines flight MH17 over Ukraine. According to a report in the Guardian:

The suspects were named as Igor Girkin, a former colonel of Russia’s FSB spy service; Sergey Dubinskiy, employed by Russia’s GRU military intelligence agency; and Oleg Pulatov, a former soldier with the GRU’s special forces spetsnaz unit. All were Russian soldiers previously sent abroad.

A fourth suspect, Leonid Kharchenko, is a Ukrainian. He led a military combat unit in the city of Donetsk as a commander, it was alleged.

Girkin was minister of defence in the Moscow-backed Donetsk People’s Republic (DNR). He was the commander of the DNR when the plane was shot down on 17 July 2014. Dubinskiy served as Girkin’s deputy in the DNR, and Pulatov was Dubinskiy’s deputy. Kharchenko was under their command.

Investigators said the soldiers “formed a chain linking DNR with the Russian Federation”. This link was how the separatists obtained heavy equipment from Russia including the Buk launcher used to fire at MH17 with “terrible consequences”.

The accused did not push the button themselves but were responsible for bringing the anti-aircraft system to eastern Ukraine. They could therefore be held criminally liable and charged with murdering 298 people, investigators said.

Readers will recall that last year the investigators and the Dutch and Australian governments formally attributed the downing of MH17 to Russia. Yesterday, however, saw the first criminal charges brought against specific individuals. Obviously, it remains highly unlikely that any of them will face trial in the Netherlands in the foreseeable future, unless they are unwise enough to travel abroad, although they will likely be tried in absentia.

There have also been interesting developments about litigation regarding MH17 in the European Court of Human Rights. Back in 2014 I suggested that the families of the victims may decide to bring cases against both Russia and Ukraine:

In addition to whatever direct involvement these states may have had in the destruction of the aircraft, they could also be held liable for other internationally wrongful acts. For example, Ukraine could be responsible for failing to secure the right to life of the victims and failing to comply with its substantive positive obligations under Article 2 ECHR by deciding not to close the relevant airspace for civilian traffic. Russia could be held responsible for providing the rebels with anti-aircraft weaponry without sufficient safeguards (e.g. appropriate training of the missile crews), thus creating the risk that this weaponry could be used against civilian targets. Both states could be held responsible for failing to secure an effective investigation into the incident. Obviously the facts could yet develop and some very complex preliminary issues could arise (e.g. the extent of Russia’s control over the Ukrainian rebels and the question of the ECHR’s extraterritorial application), but all these points seem arguable.

At least two such cases have indeed been brought and have been communicated by the Court to the respondent governments for pleadings on admissibility and merits.

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20 Years of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in Armed Conflict: Have All the Gaps Been Filled?

Published on May 29, 2019        Author: , and

Just over twenty years ago, on the 26th of March 1999, the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (hereafter Second Protocol) was adopted. Following the Balkan wars, there was a sense that the 1954 Hague Convention, the key treaty protecting cultural property, was not entirely fit for purpose. It had for example left the concept of ‘imperative military necessity’ undefined, leaving too much leeway for interpreting the way it should be applied on the ground. The Second Protocol attempted to clarify this exception to the obligation to respect cultural property in armed conflict by narrowing its scope, i.e. only permitting an act of hostility against cultural property if that object was made, by its function, a military objective and if there is no feasible alternative available to obtain a similar military advantage (Art 6(a) Second Protocol). It added that the use of cultural property in a manner that puts it at risk of damage or destruction is only possible for as long as there is no other means to gain a similar military advantage (Art 6(b) Second Protocol). Finally, it added that only commanding officers may invoke ‘imperative military necessity’ (Art 6(c) Second Protocol).

Importantly, the Second Protocol devised a new form of additional protection. The system established under the 1954 Hague Convention allowing states parties to request ‘special protection’ for a limited range of buildings (refuges sheltering cultural objects from armed conflict, centres containing monuments, and other immovable cultural property of great importance) had not garnered much success. While the advantage to being placed under special protection is clear, with the property benefitting from immunity, i.e. that the States parties must refrain from any act of hostility against it and from any use of it or its surroundings for military purposes which could turn the property into a military objective, only Vatican City and a small number of refuges had been entered on the International Register of Cultural Property under Special Protection’ by the time the Second Protocol was being drafted. The Second Protocol tried to address the failure of the special protection system by replacing it with that of ‘enhanced protection’, which has the ability to encompass many more properties : any movable or immovable property can now be considered and there is no longer any requirement for the property to be situation at a sufficient distance from industrial centre or potential military objectives, a major obstacle to the listing of any property situated in or near a city (Art 10 Second Protocol). Read the rest of this entry…

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Did ITLOS Just Kill the Military Activities Exemption in Article 298?

Published on May 27, 2019        Author: 

In a May 25, 2019 interlocutory decision, the International Tribunal for the Law of the Sea (ITLOS) prescribed provisional measures in the case brought by Ukraine against Russia, ordering Russia to release three Ukrainian naval vessels and 24 Ukrainian service members seized on November 25, 2018 in an incident in the Kerch Strait. During the incident last fall, Russian Coast Guard forces, operating in concert with a Russian naval corvette and a military aircraft, fired on two Ukrainian warships and a naval auxiliary as they attempted to transit the strait against the orders of Russian authorities. The ships and their crews were captured and remain in detention in Russia, charged with violating Russian criminal law.

On April 29, Ukraine filed a case with ITLOS requesting provisional measures to order their immediate release. Such measures are authorized under article 290 of the United Nations Convention on the Law of the Sea (UNCLOS) in urgent situations to prevent a real and imminent risk of irreparable prejudice to the rights of a party, in this case Ukraine. Article 290(5) permits such measures before the merits of the case so long as the Tribunal has prima facie jurisdiction in the case. The key question was whether the Russia’s operation constituted a “military activity,” and was therefore exempt from jurisdiction in accordance with a previous Russian declaration under article 298 of UNCLOS. The Tribunal determined that Russia’s operations were not a military activity, but the decision is likely to generate unintended consequences.

The ITLOS order has effectively diminished the military activities exemption which will give pause to the 27 nations that have made such declarations, including China, France, Norway, Denmark, and the United Kingdom – and in the future, most likely the United States, which intends to make such a declaration once it accedes to the Convention. (The states are identified in paragraph 11 of Judge Gao’s separate opinion). In a decision that suggests outcome-based legal reasoning to constrain Russia, ITLOS questions the viability of the military activities exemption based on any rationale.

As part of its analysis for jurisdiction, the Tribunal avoided a determination on whether there was an armed conflict between the two states, as would appear from the application of the Geneva Conventions in article 2 common, and as I suggested in an earlier piece. Instead, the ITLOS order accepts without analysis that Ukraine and Russia are interacting during a time of peace, a dubious assumption. In doing so, the Tribunal vindicates two important rights that will be welcomed by maritime powers: sovereign immunity of warships and other government vessels and the peacetime right of freedom of navigation by Ukrainian military vessels. But in reaching this conclusion, the Tribunal diminished the military activities exemption. In a departure from the broader understanding of military activities evident in the 2016 Philippines v. China arbitration, the Tribunal found that the confrontation over innocent passage was a navigational issue, rather than one concerning a military activity, because innocent passage is a right enjoyed by all ships. The Tribunal also determined that Russia’s temporary suspension of innocent passage declared conveniently to halt the transit of Ukrainian warships was a law enforcement activity rather than a military activity. These factors led the Tribunal to conclude that Russia’s actions were “in the context of a law enforcement operation rather than a military operation.”

Read the rest of this entry…

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Justifying Self-defense against Assisting States: Conceptualizing Legal Consequences of Inter-State Assistance

Published on May 23, 2019        Author:  and

Cause for thought: Israel’s airstrikes directed against Iran and Syria

Israel has acknowledged to have repeatedly struck Iranian military targets in Syria. While confrontations occur frequently, the incident of January 21, 2019 has received  particular attention. Israeli guided missiles, apparently fired over Lebanese territory (UN Doc. S/PV.8449, p. 31f), hit Iranian military targets in Syria, also leading to personal and material damage of Syria. Israel invoked its right to self-defense, apparently reacting to Iran firing a surface-to-surface missile towards the Golan Heights on Sunday, January 20 from Syrian territory. Syria’s precise role in the Iranian action beyond this territorial link remains murky.

The problem: self-defense affecting assisting states

The Israeli claim to self-defense faces various legal questions (e.g. whether the attack meets the necessary threshold or whether annexed territories can be defended). This contribution does not aim to assess the Israeli claim, but shall use this example to shed light on one problem only: May the victim of an armed attack defend itself not only against the attacker state, but also against an “assisting” state?

Even if the use of force by the defending state (here Israel) against the attacking state (here Iran) is assumed to be justified by self-defense, it also forcefully infringes upon the territorial integrity of the assisting State (here Syria), as protected under Article 2(4) UNC, and warrants justification, too. The claim that strikes directed against an actor within the territory of another state are not a prohibited use of force against the territorial state has been repeatedly rebutted.

In fact, in the Security Council debate on the January incident, Syria labelled the Israeli strikes as “acts of aggression targeting the Syrian Arab Republic”, a “gross violation of international law” (S/PV.8449, p. 31f). Iran like Russia condemned the Israeli action, emphasizing the infringement of Syria’s sovereignty. Interestingly, Israel (unlike the USA or Germany) showed awareness of the problem by holding “the Syrian regime responsible for the missile that was launched against Israel from Syrian territory” (S/PV.8449, p. 8). The IDF added that “Syria paid the price for allowing Iran to conduct attacks from its soil.”

While the permissibility of self-defense against states supporting non-state actor violence is being extensively discussed, self-defense against states assisting another state has received little attention Read the rest of this entry…

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Humanitarian Assistance and Security Council Sanctions: Different Approaches to International Humanitarian Law

Published on April 11, 2019        Author: 

Under the sanctions regimes established by its resolutions adopted under Chapter VII of the United Nations Charter, the United Nations Security Council (UNSC) can currently impose sanctions on those who obstruct the delivery of humanitarian assistance in eight non-international armed conflict situations. This imposition of sanctions stems from the UNSC’s responsibility to maintain peace, security, and stability. Yet, its approach to humanitarian law (IHL) in these eight regimes has been inconsistent. In most of its current sanction regimes, the UNSC arguably has moved beyond the IHL applicable to humanitarian assistance, with the consequence that it can now sanction obstructions, which are broader than those which would constitute a violation of IHL. This post examines what this means for sanctions investigators and for the enhanced protection of civilians. 

Different Approaches of the UNSC with Respect to Imposing Sanctions on Obstructions to Humanitarian Assistance

The UNSC imposes sanctions in order to respond to threats to peace, security and stability. In the eight sanctions regimes discussed in this post, impediments to peace, security and stability explicitly or implicitly include obstructions to the delivery and distribution of humanitarian assistance and access obstructions.

Yet, the UNSC takes two different approaches when it imposes sanctions on obstructions to humanitarian assistance. In the first approach,  which is taken with respect to Libya and Sudan, there is no stand-alone criterion (the basis for listing by the UNSC or for being sanctioned) on humanitarian assistance, and humanitarian assistance and access obstructions may be considered under other listing criteria relating to violations of human rights or IHL. In these cases, Read the rest of this entry…

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