Home Archive for category "International Humanitarian Law"

Legitimate Targets?: A Reply to Jutta Brunnée and Geoff Corn

Published on September 24, 2015        Author: 

Dill book

I would like to start by thanking Jutta and Geoffrey for their detailed and very thoughtful comments. I am particularly glad that Geoffrey focused on my interpretation of IHL, bringing to bear his military expertise and that Jutta focused on the theoretical part of the book, which is inspired by her own interactional theory of international law (IL), developed with Stephen Toope. As their comments cover different terrains I will begin by addressing three criticisms contained in Geoffrey’s remarks and then separately engage with Jutta’s discussion of the book.

Geoffrey disagrees with my representation of the role and substance of the principle of proportionality. I should clarify that I agree with Geoffrey’s observation that the principle is not necessarily central to many practitioner’s understanding of legitimate targeting. When I emphasize the principle’s importance, I mean its central place in the ‘architecture’ of IHL. It repeats the very purpose of law to somehow accommodate the regularly opposed imperatives of protecting human life and of allowing belligerents to follow military necessity. In theory, how proportionality is interpreted chiefly determines how much civilian protection and belligerents’ freedom of action respectively IHL affords. In practice, it is rarely mentioned without reference to precautions in attack, as Geoffrey points out, and it is often misunderstood.

Geoffrey also questions my representation of the principle’s substance as asking for something akin to a balance between the anticipated military advantage and expected civilian harm. He states that practitioners rather than seeking such a balance ‘understand that where civilian risk cannot be justified by genuine military interests … there is no utility in the use of combat power’. Though very important, I believe this is not a proportionality judgment, but one of necessity. Read the rest of this entry…

Print Friendly

Legitimate Questions about Legitimate Targets

Published on September 23, 2015        Author: 

I appreciate the opportunity to offer my reactions to Janina Dill’s impressive work on lawful targeting, or more precisely the effectiveness of international law in regulating combat operations.

Janina’s book (Legitimate Targets? International Law, Social Construction and US Bombing) is a fascinating analysis of the complex intersection of international relations and international law. Central to her thesis is the dichotomy between what she defines as the “logic of efficiency” and the “logic of sufficiency.” As she explains, each of these concepts reflects some of the underlying objectives of international legal regulation, most notably in relation to armed conflict. The logic of efficiency essentially prioritizes achieving the strategic end-state “efficiently” over protection of the civilian population, essentially trading civilian risk for rapid victory. In contrast, the logic of sufficiency seeks to limit the risks of armed conflict to each party’s military forces in order to enable them to compete in the contest of arms with limited impact on civilians. Janina posits that the targeting regulatory regime established by Additional Protocol I reflects a “sufficiency” foundation, as it sought to limit the use of combat power to only those potential targets that offered a genuine prospect of weakening enemy military capabilities.

International relations theory is well beyond my area of expertise. Nonetheless, what I found most compelling about Janina’s thesis was how she endeavors to translate theory into a more tangible “package” of principles to clarify the relationship between international law and international relations. It is probably unsurprising, however, that I gravitated more towards Janina’s analysis of the impact of international humanitarian law on the planning and execution of combat operations. While I found her dichotomy between “efficiency” and “sufficiency” interesting, I am not persuaded that IHL’s rationale is so neatly segregated. Throughout her book, I found myself wondering why arguments in favor of sufficiency did not also reflect elements of efficiency, and why arguments in favor of efficiency did not also reflect elements of sufficiency. I do, however, think the dichotomy offers a fascinating and novel lens through which to consider the role of IHL, which is, I believe, ultimately what Janina sought to accomplish.

Janina’s explanation of IHL targeting rules was clear and accurate throughout the text. She also provides important insights into how the law, at least in its current state, provides belligerent forces with ample legal “space” for using decisive combat power. While I might disagree with some of her conclusions about actual U.S. compliance with the law during air operations, Read the rest of this entry…

Print Friendly

A Constructivist Theory of International Law?

Published on September 23, 2015        Author: 

Janina Dill’s Legitimate Targets? International Law, Social Construction and US Bombing (2015) is a rich treatment of challenging terrain. It is difficult to do this excellent book justice by focusing on only some of the many threads that it so skillfully weaves together. Still, I limit my comments to one aspect of the book: the theoretical framework that it develops in the first two chapters.

The book tackles one of the enduring puzzles concerning the operation of international law (IL) in international relations (IR): “How can law make a difference in international relations, where states create legal rules that accord with their interests and normative beliefs, while no central authority enforces those legal rules that do not?” (19)

Janina proposes to solve the puzzle by advancing a theory of IL’s “behavioural relevance” (41), i.e. a theory that explains how IL can make a counterfactual difference by prompting actors to behave differently than they would have done had they simply followed their interests or normative beliefs (349). At different points in the book, Janina stakes out other, even more ambitious, goals. Notably, she asserts that her theory will also show how IL differs from other types of social ordering, thus taking up fellow constructivist Martha Finnemore’s pointed question “Are Legal Norms Distinctive?” (2000). Perhaps most sweepingly, she labels her project a “constructivist theory of international law” (Chapters 1 & 2) and a theory of “what law is” (31, 63). I explore each of these theoretical claims below.

A Theory of IL’s Behavioural Relevance

Janina’s effort to identify IL’s impact must be understood against the backdrop of contemporary IR theory. For Janina, the main strands of IR theory, notwithstanding major differences, share the assumption that states’ motivations for creating and complying with IL are outside of the law (27). What may seem to be inspired by law, is actually driven by prior interests (for realists and rational institutionalists) and/or normative beliefs (for constructivists). For most IR scholars, therefore, law does not provide an independent reason for action – it is “causally dependent” (28).

This relatively dim view of IL is not unique to IR scholarship. Read the rest of this entry…

Print Friendly

Introduction: Legitimate Targets?

Published on September 22, 2015        Author: 

In 2003 during their invasion of Iraq American troops were commended for going to great pains to comply’ with international law and at the same time they were condemned as the ‘most violent and murderous army’ in American history. The question these dichotomous assessments raise is: what can international law (IL) accomplish in war? What does it mean that conduct in war is subjected to regulation by international humanitarian law (IHL), that belligerents wage war legally? My book, Legitimate Targets? International Law, Social Construction and US Bombing, aspires to providing a comprehensive answer to the question in four steps.

The first part identifies mechanisms by which recourse to IL can make a difference for individual and state behaviour. Given the lack of systematic and reliable enforcement of IL, in International Relations scholarship as well as public commentary, this is still often doubted. I argue that IL, when it is recurred to, can mediate between actor’s interests and normative beliefs. What I call the intellectual and the motivational effects of recourse to IL can change how an actor perceives her reasons for action. IL can be behaviourally relevant.

The book then discusses the legal rules defining a legitimate target of attack contained in the First Additional Protocol to the Geneva Conventions and customary law. I address and suggest solutions to a number of subsisting interpretive debates with reference to two alternative logics of how a belligerent can attempt to accommodate the competing demands of humanitarianism and military necessity. What I call the logic of efficiency aims to minimize belligerents’ expenses in time and blood over the achievement of their political goals. The logic of sufficiency aims to contain war to a purely military competition geared towards ‘generic military victory’. The latter is the logic according to which the First Additional Protocol demands that belligerents ‘distribute’ deliberate harm in war. Read the rest of this entry…

Print Friendly

Human Rights and the Targeting by Drone

Published on September 18, 2015        Author: 

The UK government has justified its targeting and killing of three people who were engaged in hostilities as part of the ‘Islamic State’ forces by relying on international law. This is to be applauded, as compliance with international law is in the interest of long-term peace and security in the UK and in the international community, and on the rule of law. It does not necessarily mean that their justification of self-defence, or even collective self-defence, is accurate or sustainable once the full facts are known.

However, even if the UK argument of reliance on self-defence is in accordance with a part of international law, that is not sufficient to conclude that the targeted killing is in compliance with all of international law. It only means that the armed force by the drone could be used lawfully by the UK in Syrian territory. There are at least two other areas of international law that are also relevant and should be complied with: international humanitarian law (IHL); and international human rights law (IHRL). The former concerns the lawfulness of force within the armed conflict once it commences, and the latter applies at all times. I will focus here on the application of IHRL, including its interaction with IHL.

IHRL does not allow the targeting of individuals to kill them except in strictly limited circumstances. This was confirmed by the UN Special Rapporteur on Arbitrary Killings in his 2013 report Read the rest of this entry…

Print Friendly

On Preventive Killing

Published on September 17, 2015        Author: 

If we wait for threats to fully materialize, we will have waited too long. We must take the battle to the enemy, disrupt his plans and confront the worst threats before they emerge. In the world we have entered, the only path to safety is the path to action. And this nation will act.

George W. Bush, 17 September 2002.

It seems to me that there are two different ways of understanding the targeted killing of UK citizens Reyaad Khan and Ruhul Amin by a Royal Airforce-piloted drone on 21 August 2015, in Raqqa, Syria. (Khan was the target of the strike, and Amin was also killed by it. Both Khan and Amin are described as “ISIL fighters.”)

The first poses some difficult constitutional and public law questions for the UK government, but does not require any kind of radical re-interpretation of international law governing the use of force.

The second way of understanding the strike amounts to a sea change in the UK’s legal position, and indeed aligns it with several US legal positions in the “war on terror” which, hitherto, no European state has formally embraced.

Read the rest of this entry…

Print Friendly

Joint Blog Series: Application of International Humanitarian Law by Domestic Courts

Published on September 15, 2015        Author: 

Editor’s Note: This post is part of the joint series of posts hosted by EJIL:Talk!, Lawfare and Intercross (blog of the International Committee of the Red Cross) and arising out of the 3rd Transatlantic Workshop on International Law and Armed Conflict held in Oxford this summer.

It is well known that in an order such as international law where there is no universal, compulsory judicial system, domestic courts play an important role not only in enforcement, but also in interpretation and development of particular international legal rules. This is especially the case in international humanitarian law (IHL), an area that constantly faces existential critique for its lack of effective enforcement mechanisms. Moreover, it was only in the 1990s with the emergence of modern international criminal justice that many of the specific rules of IHL came to be interpreted and developed since their codification several decades before. Against this background, domestic courts are increasingly called on to apply and interpret IHL.

The purpose of this post is to offer a brief overview of the circumstances that might lead a domestic court to examine IHL, the extent to which such jurisprudence can be considered as contributing to the development of IHL, and some of the problems that arise here.

How does IHL come to arise before domestic courts?

There are a number of situations that might call for a domestic court to draw on IHL during the proceedings. In such cases, the court will either apply IHL directly (e.g. where a domestic law or government policy is being judicially reviewed for compliance with the international obligations of the State) or indirectly (e.g. where a domestic law or other international obligation of the State is being applied in a situation that requires a renvoi to IHL for content-determination, such as when interpreting a human right in the context of an armed conflict). Read the rest of this entry…

Print Friendly

Joint Series on International Law and Armed Conflict: Querying the Roles for Human Rights Bodies in the Interplay between International Human Rights Law and International Humanitarian Law

Published on September 11, 2015        Author: 

As noted earlier this week, EJIL:Talk! together with Lawfare and InterCross are running a joint series over the next few weeks on International Law and Armed Conflict. The latest post in the series, over at Lawfare, is by Joanna Harrington, (Professor of Law at the University of Alberta). She begins her post by noting that:MG0146cropped

“Complexities remain with respect to the interaction between the fields of international human rights law (IHRL) and international humanitarian law (IHL) in situations of armed conflict. Focusing on the human rights side of this interplay, there are questions about which human rights obligations apply, to what extent, and to whom, as well as questions about the role for international human rights monitoring bodies. Should the human rights bodies, for example, see their role as one of shaping the contours of IHL?

The words “human rights body” can easily be misread as if to treat all human rights bodies as being the same, with the same functions, and with the same effect or influence by virtue of being a “human rights body”. Included within this term are courts and commissions, committees and working groups, but from a Canada/U.S. perspective, there is interest in those human rights bodies that are not courts, since both countries cannot be subject to the European Court system, and nor have they accepted the jurisdiction of the Inter-American Court of Human Rights.

The Question of an Accountability Gap

Often these discussions begin by identifying a perceived accountability gap, drawing attention to the lack of an international adjudicative body to provide authoritative interpretations of the Geneva Conventions and Protocols. Having identified a gap, it is assumed that the gap must be filled. But there are times in international negotiations when gaps serve a purpose, perhaps when efforts to achieve agreement on a particular aspect or mechanism have failed.”

Read more at Lawfare

Print Friendly

Transatlantic Workshop on International Law and Armed Conflict: Introduction to a Joint Blog Series

Published on September 9, 2015        Author: 

Over the next few weeks, three blog –  Lawfare, InterCross (the blog of the ICRC) and EJIL:Talk! – will host a joint blog symposium on International Law and Armed Conflict. The series will feature posts by some of the participants at the Third Transatlantic Workshop on International Law and Armed Conflict, which was held at the University of Oxford this summer. As with previous years, the Transatlantic Workshop brought together senior government officials, senior military lawyers and leading academics from the United Kingdom, United States, Canada, Israel and Switzerland. The two day workshop focuses each year on a range of critical issues in the law of armed conflict. This summer, there was a particular focus at the workshop on the judicial application of international humanitarian law, with sessions dedicated to the application of the law of armed conflict by human rights tribunals; international criminal tribunals; and by national courts. In addition, the workshop also engaged in discussions on direct participation in hostilities; humanitarian access in armed conflict; and foreign intervention in non-international armed conflicts.

The first post in the series – “Direct Participation in Hostilities- What are the Issues and Where are the Controversies?” – by Marco Sassoli (University of Geneva) is now available on InterCross. In his concluding paragraph he argues that:sassoli_marco220

” . . . it is this preliminary question whether and in which circumstances someone who is not a combatant may be targeted even while not DPH [taking a direct part in hostilities] that is at the heart of the controversies surrounding the ICRC DPH Guidance, rather than the question of what conduct actually constitutes direct participation. On this latter question the Guidance has suggested a definition. Today several experts and officials criticize some aspects of this definition. Experts representing militaries are however mostly obsessed by – and object to – first, the application, by the ICRC, of the principle of military necessity to the targeting of individuals directly participating in hostilities and second, by what they refer to as the ‘revolving door’ phenomenon. That a civilian regains protection once s/he no longer directly participates, regardless of whether s/he may possibly directly participate in the future, is however, an unavoidable result of the clear wording of Article 51(3) of Protocol I and of Art. 13(3) of Protocol II. If the fact of having directly participated in hostilities once or several times had the effect of turning civilians into combatants or members of armed groups, the crucial criteria relevant to determining whether an individual is a member of an armed group – belonging, responsibility and command – would become irrelevant. From a pragmatic point of view, I wonder how a soldier confronted with a civilian not directly participating can be expected to know that the individual did previously engage in direct participation and/or is likely to do so again. To make such speculations the basis for decisions over life or death is dangerous, including for the great majority of harmless civilians.”

Read the rest of this entry…

Print Friendly

Two Wrongs Don’t Make a Right: Ukraine Retaliates for Savchenko in Violation of IHL

Published on September 1, 2015        Author: 

In our post concerning Ukrainian military pilot Nadiya Savchenko, which can be found here, Anne Quintin and I addressed the International Humanitarian Law (IHL) implications of Russia’s detention and prosecution of the officer, whose ongoing murder trial is postponed pending the outcome of a change of venue motion by the defence. Meanwhile, Ukraine has thrown a judicial rock of its own by detaining two Russian officers – Evgeny Erofeev and Aleksandr Aleksandrov – who face charges of terrorism and aggression in Kiev in the coming weeks. In this post, I would like to identify the contradictions of Ukraine’s positions with respect to the two situations, as well as its concomitant IHL violations, and to address the possibility of reconciling Ukraine’s rhetoric and practice with the rules of IHL.

On or about May 16 2015, two wounded fighters who identified themselves as officers of the Russian army were captured by Ukraine’s Armed Forces (UAF) following a firefight near Lugansk that resulted in the death of one Ukrainian soldier. The detainees were immediately treated and subsequently evacuated to Kiev, where they remain hospitalized to this day. Several days after their capture, both were indicted under Article 258 of the Ukrainian Penal Code (UPC) for their participation in the commission of a terrorist act, organized and carried out by the Lugansk People’s Republic (LPR), resulting in death. Notably, there appears to be no evidence, or allegations, that the Ukrainian soldier was killed in violation of IHL. Most recently, a charge of aggression under Article 437 of the UPC was added to the terrorism charge.

On May 21, the Security Services of Ukraine confirmed that Erofeev was captain, and Aleksandrov sergeant, of the 3rd Brigade of the Special Forces of the Military Intelligence Directorate of the Main Staff of the Armed Forces of the Russian Federation (Russian abbreviation ‘GRU’), with its base in Tolyatti, Russia. Numerous video and newspaper interviews given by the officers revealed that: they were so-called ‘contracted’ (kontraktniki) Special Forces of the GRU deployed to Ukraine on 6 March 2015 in the battalion numbering 220 soldiers; they were dispatched on orders from their superiors who promised double their usual pay; that on the day of their capture their unit, comprised entirely of Russian troops, was stationed near Lugansk and was spotted by the UAF during a reconnaissance mission, prompting a gunfire exchange. Against this evidence, Russia has not relented in its denials of the involvement of Russia’s armed forces in the fighting in Donbass. In fact, on July 21, the Ministry of Defense of Russia declared that even though the two officers underwent military service in Russia, the events in Ukraine linked to them ‘took place after their discharge from military service and were not connected to it.’ On some accounts, the relatives of the accused have confirmed that the soldiers were indeed discharged. Consistent with this storyline, the LPR has maintained that Erofeev and Alexandrov are members of its own police force with no affiliation to the Russian armed forces. Read the rest of this entry…

Print Friendly