Home Archive for category "International Humanitarian Law"

The ICRC’s Position on a Functional Approach to Occupation

Published on November 18, 2015        Author: 

It is always interesting to observe the evolution of the (infrequent) public official positions that the International Committee of the Red Cross adopts on controversial questions of international humanitarian law. The particular position I’d like to flag is the one on a functional approach to the end of belligerent occupation. This position is clearly of particular importance to the question of whether Gaza continues to be occupied by Israel, which I’ve looked at here on the blog a couple of times before (see here and here).

Some years ago the ICRC held a series of expert meetings on various issues arising out of the law of belligerent occupation, including the beginning and end of occupation. The 2012 report on the meetings is available here. The issue of the end of occupation proved to be controversial, especially on the example of Gaza. Some degree of consensus emerged that the legal criteria for ending an occupation should be the same as for establishing the occupation, but that the evidentiary factors to be taken into account may differ. Thus, an occupation would end if the occupant lost effective control of the territory or obtained valid consent from the sovereign of the territory to its presence there.

Also in 2012, the ICRC legal advisor dealing with the occupation issue, Tristan Ferraro, published an academic article on the beginning and end of occupation in the International Review of the Red Cross. Like most pieces written by ICRC legal advisors, the article includes an initial footnote which specifies that the ‘article was written in a personal capacity and does not necessarily reflect the views of the ICRC.’ In the article Ferraro argues in favour of a functional approach to occupation, where the end to an occupation should not be seen as an all or nothing switch.

With regard to the Gaza controversy in particular, the ICRC took the position (shared by many humanitarian NGOs) that Gaza remains occupied by Israel. In 2014, writing in the Israel Law Review, the ICRC president noted (p. 179) that ‘In the view of the ICRC, Israel continues to be bound by obligations under occupation law that are commensurate with the degree to which it exercises control.’

Last week, the ICRC published its challenges to IHL report (available on Just Security), written for the forthcoming ICRC conference in December (see also Gabor Rona’s post on the report here). And here, on pp. 11-12, we have an extensive articulation of the ICRC’s official position:

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Mass killings of Tamil civilians downplayed in new UN report on Sri Lanka, silent on genocide question

Published on October 19, 2015        Author: 

On 1 October 2015 the United Nations Human Rights Council adopted by consensus the resolution ‘Promoting reconciliation, accountability and human rights in Sri Lanka’. The basis for the resolution was the release and consideration of the long awaited Office of the High Commissioner on Human Rights Investigation on Sri Lanka (OISL) (see here for links to the summary and full reports).

Strikingly, OISL moves away from the position on mass civilian killings taken in an earlier UN report of 2011 (see EJIL: Talk! post here) (2011 Report). According to the 2011 Report, tens of thousands of Tamil civilians were killed between January and May 2009, in particular the final weeks leading up to the government declaration of victory over the Liberation Tigers of Tamil Eelam (LTTE), who immediately prior to this period controlled most of the Tamil-dominated Vanni region of the island. The 2011 Report found reasonable grounds to believe that most of these deaths were the result of intentional government attacks directed at civilians, amounting to crimes against humanity. In contrast OISL neglects to estimate the scale of deaths and considers these same attacks only as a set of potential war crimes, denying their widespread and systematic nature against a civilian population. The new report which proposes a domestically-based war crimes mechanism shifts attention away from the most egregious international crimes of the government in the 2011 Report, leaving the demands of Tamil representatives for consideration of the crime of genocide unaddressed. 

The 2011 Report places these mass killings prominently, finding:

“… Between September 2008 and 19 May 2009, the Sri Lanka Army advanced its military campaign into the [LTTE-held] Vanni using large-scale and widespread shelling, causing large numbers of civilian deaths. This campaign constituted persecution of the population of the Vanni… The Government shelled on a large scale in three consecutive No Fire Zones, where it had encouraged the civilian population to concentrate, even after indicating that it would cease the use of heavy weapons. It shelled the United Nations hub, food distribution lines and near [ICRC] ships that were coming to pick up the wounded… It shelled in spite of its knowledge of the impact, provided by its own intelligence systems and through notification by the [UN], the ICRC and others. Most civilian casualties in the final phases of the war were caused by Government shelling…The Government also systematically deprived people in the conflict zone of humanitarian aid, in the form of food and medical supplies … To this end, it purposefully underestimated the number of civilians who remained in the conflict zone. Tens of thousands lost their lives from January to May 2009, many of whom died anonymously in the carnage of the final few days.” (p.ii. “Executive Summary, Allegations found credible by the Panel”)

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Will the ‘Sleeping Beauty’ Awaken? The Kunduz Hospital Attack and the International Humanitarian Fact-Finding Commission

Published on October 15, 2015        Author: 

Editors Note: Following the attack earlier this month in Kunduz on a hospital run by Médecins Sans Frontières, we  are  today posting two articles on the potential role of the International Humanitarian Fact-Finding Commission (IHFFC) in any investigation. The two posts, the first by Ove Bring (Professor Emeritus of International Law at Stockholm University & Swedish National Defence University, and former member of the IHFFC) and the second by Catherine Harwood (Ph.D. Researcher at the Grotius Centre for International Legal Studies at Leiden University), present different views on the debate regarding the IHFFC’s role.

The horrific attack on 3 October 2015 on a hospital run by Médecins Sans Frontières (MSF) in Kunduz province, Afghanistan, has turned the world’s attention back to the enduring armed conflict in Afghanistan and the need for full and transparent investigations of incidents that ostensibly violate international humanitarian law (IHL). Following the attack, MSF called on the US to “consent to an independent investigation led by the International Humanitarian Fact-Finding Commission (IHFFC) to establish what happened in Kunduz, how it happened, and why it happened.”

The IHFFC, established by Article 90 of Additional Protocol I (1977) to the Geneva Conventions (AP I), is the only permanent international fact-finding body with a specific mandate to investigate violations of IHL. Its President, Dr. Gisela Perren-Klingler, has confirmed that the Commission is ready to undertake an investigation of the attack. Despite its potential value to promote compliance with IHL, the IHFFC has never been used. Back in 2002, Professor Frits Kalshoven questioned whether the Commission had become a ‘Sleeping Beauty’, suggesting that its disuse was due to its independence and the general reluctance of parties to armed conflicts to have the truth about certain facts exposed.

This incident appears at first sight to provide an eminently suitable opportunity to put the Commission to good use. However, this contribution argues that the distinctive contours of the Commission’s jurisdiction, combined with political factors, mean that it is unlikely to be roused from its fact-finding slumber just yet. Read the rest of this entry…

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The Kunduz Hospital Attack: The Existence of a Fact-Finding Commission

Published on October 15, 2015        Author: 

Editors Note: Following the attack earlier this month in Kunduz on a hospital run by Médecins Sans Frontières, we  are  today posting two articles on the potential role of the International Humanitarian Fact-Finding Commission (IHFFC) in any investigation. The two posts, the first by Ove Bring (Professor Emeritus of International Law at Stockholm University & Swedish National Defence University, and former member of the IHFFC) and the second by Catherine Harwood (Ph.D. Researcher at the Grotius Centre for International Legal Studies at Leiden University), present different views on the debate regarding the IHFFC’s role.

The accidental bombing of the hospital in Kunduz, Afghanistan, on 3 October 2015, epitomizes the need for fact-finding with regard to possible violations of the international humanitarian law of armed conflict (IHL). President Obama has ordered a national investigation, but from the perspective of IHL an international process of fact-finding would be a more credible and impartial option. Since 1992, the 1977 First Additional Protocol to the Geneva Conventions of 1949 (the Protocol) has established an International Humanitarian Fact-Finding Commission (IHFFC, Commission). The Commission has been contacted by Médecins Sans Frontières (MSF, Doctors Without Borders) in the Kunduz matter (see news reports here). The Secretariat of the Commission, seated in Berne, Switzerland, has reported on the Commission website that it has taken appropriate steps and is in contact with MSF, but cannot give any further information at the present stage.

The Protocol aims at increasing the protection of civilians in international armed conflicts and improving the implementation of IHL. Article 90 of the Protocol lays down the competence and procedure for the IHFFC, which became operational following acceptance of its competence by 20 States Parties to the Protocol. This group of states, parties to the Commission, has since, at five-year intervals, elected the prescribed 15 members of the Commission. Such members should be of “high moral standing and acknowledged impartiality”. They serve in their personal capacity for five-year terms. A list of the current members is available on the IHFFC website.

So far, 76 states have accepted the Commission´s competence and thus become parties to it. The number includes several major military powers and several states that have been involved in armed conflicts. They are from all parts of the world. Read the rest of this entry…

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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…

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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…

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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…

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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…

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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…

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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.

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