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Home Archive for category "International Humanitarian Law"

ESIL-International Human Rights Law Symposium: Interactions Between IHRL and Other Sub-branches of International Law – A Research Agenda

Published on February 4, 2016        Author: 

In our first post as co-chairs of the ESIL Interest Group on Human Rights, we suggested that human rights are central organising principles of public international law. We noted that:

International human rights law routinely interacts with other sub-branches of public international law by demanding new interpretations of existing law (cf. the principle of territorial application of treaties as regulated in the Vienna Convention on the Law of the Treaties); by qualifying existing obligations under other bodies of law (cf. international human rights law and the law of occupation); or imposing procedural and substantive obligations onto other bodies of law (cf. the ICC Statute).

In this symposium, we deepen our inquiry into the relationship of international human rights law (IHRL) with other sub-branches of public international law. We do so by examining in what ways and the extent to which IHRL has shaped and influenced the development of international criminal law, the law of armed conflict, international investment law, cultural heritage law and development. Looking at interactions between IHRL and a number of other sub-branches of public international law (PIL) demonstrates that there are both divergences and convergences in why and how far IHRL influences other bodies of PIL.

The contributions in this symposium indicate that all sub-branches under discussion interact with IHRL. There are, however, significant variations in how far they interact, the terms of interaction and the assessments of the consequences of such interaction. What explains such variation? Our contributors identify push and pull factors.

The purposive affinity between IHRL and other branches of PIL emerges as an important factor supporting IHRL’s influence on other branches. Lixinski on international cultural heritage law, Murray and Hampson on international humanitarian law, and Cryer on international criminal law, all point out that interactions with IHRL are strong because there are overlaps between what these bodies of law are seeking to achieve and IHRL. Van Ho’s post, on the other hand, points to the perceived lack of purposive affinity between IHRL and international investment law accounting for the limited interaction between the two sub-branches. Read the rest of this entry…

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Pre-Trial Chamber of the International Criminal Court Authorizes Initiation of Investigation in Georgia

Published on February 1, 2016        Author: 

On 27 January 2016, the ICC Pre-Trial Chamber I (PTC) authorized the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) to open an investigation into the situation in Georgia, specifically focusing on allegations of war crimes and crimes against humanity during and in the immediate aftermath of the August 2008 armed conflict. In the absence of a state party or the Security Council referral, the OTP filed the request for authorization in October 2015, seven years after initiating its preliminary examination. The investigation can cover alleged crimes by three groups: South Ossetian forces, armed forces of Georgia and armed forces of the Russian Federation. Georgia is a party to the Rome Statute, while the Russian Federation is not.

This post focuses only on the aspects of the PTC decision and the OTP’s request that raise the most questions, namely selection of crimes and of potential cases and admissibility of those cases, with specific emphasis on complementarity.

Crimes within the Jurisdiction of the ICC

The primary targets for the OTP’s investigation appear to be alleged crimes against ethnic Georgians, including forcible displacement and destruction of property, between 8 August and 10 October 2008 in the Russian occupied South Ossetia and adjacent areas. Read the rest of this entry…

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The ‘Compliance Track’ on a Track to Nowhere

Published on January 22, 2016        Author: 

The 32nd International Conference of Red Cross and Red Crescent (IC), held from 8th to 10th December 2015 and bringing together delegations from States Party to the Geneva Conventions (GCs), National Red Cross and Red Crescent Societies, the ICRC and the IFRC, has already attracted some comments (here and here). A little-explored topic to date has been the adoption of Resolution 2 on “Strengthening compliance with international humanitarian law”. This Resolution was linked to the so-called ‘compliance track’: an initiative managed by the ICRC and Switzerland, aimed at identifying options to improve the implementation of IHL.

A draft resolution circulated in October 2015 recommended that States create a new compliance mechanism, the so-called “Meeting of States on IHL” (MoS), and identified the key elements proposed for that mechanism. This draft resolution was also accompanied by a Concluding Report, providing insights into the consultation process and emphasizing the questions still pending. However, delegations at the International Conference were unable to reach a consensus on this new mechanism. Operative paragraph (OP) 2 of Resolution 2 adopted at the International Conference merely recommends “the continuation of an inclusive, State-driven inter-governmental process based on the principle of consensus…to find agreement on features and functions of a potential forum of States…in order to submit the outcome of this intergovernmental process to the 33rd International Conference”. The Resolution reiterates a series of guiding principles intended to inform further discussions. This post will describe the key features of the proposed Meeting of States. It will be noted that the proposals which were put to the International Conference, but not adopted, contained only a minimal option for strengthening compliance with IHL, though it would have had the merit of planting a tiny seed in the IHL system, with an eye to its possible ripening into a fruit.

The path towards the 32nd International Conference

The ‘compliance track’ was developed following the adoption of Resolution 1 at the 31st IC held in 2011, where the ICRC (later joined by Switzerland) was entrusted with pursuing consultations to enhance the effectiveness of IHL compliance mechanisms. A shared skepticism on the effectiveness of some existing mechanisms (such as Protecting Powers, Enquiry Procedures, Meeting of the High Contracting Parties, or the IHFFC) lay behind this request. In particular, as such mechanisms were designed for international armed conflicts and are dependent on States’ consent for their activation, they have barely functioned as envisaged. States’ discomfort with the increasing proliferation of (sometimes) proactive compliance mechanisms operating outside the realm of IHL, such as human rights bodies, was an additional element in favor of the possible development of new mechanisms for implementing compliance with IHL. Read the rest of this entry…

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Targeting Child Soldiers

Published on January 12, 2016        Author: 

Despite the numerous volume on child soldiers in legal literature over the last few decades, very little has been said on targeting child soldiers. It seems to be something international lawyers would rather not talk about. The fact that legal literature doesn’t say much about targeting child soldiers doesn’t mean that no such practice exists, or that soldiers haven’t discuss the matter. In 2002, the US Marine Corps Warfighting Laboratory organised a ‘Cultural Intelligence Seminar’ on the implication of child soldiering for US forces. One trigger for that discussion was the fact that the very first US soldier killed in Afghanistan reportedly was a Special Forces Sergeant shot by a 14-year-old boy. The year before, in Sierra Leone, a squad from the Royal Irish Regiment was taken prisoner by a group consisting mostly of armed children called the West Side Boys, as the British soldiers were hesitant to open fire. After they had been held hostage for two weeks, an assault was launched by an SAS unit supported by suppression fire from helicopters, leading to between 25 to 150 dead among the West Side Boys. Finally, during the civil war in Sri Lanka, a Government aircraft bombed what was deemed an LTTE training camp, killing a reported 61 minors, mostly girls. Although the LTTE was widely known to use child soldiers, and the specific facts were contested, the Sri Lanka Government was adamant that if a child took up arms, then he or she could be targeted and killed.

The phenomenon of child soldiers remains widespread, and their activities does include direct participation in hostilities. It is imperative that international humanitarian law provide guidance as to what opposing forces can do if they are confronted with that reality. In this piece, I suggest that there are elements in international humanitarian law that support adapting a child-specific approach to targeting. Under this approach, the fact that a potential target is a child should prima facie raise a doubt as to whether he or she is targetable. Although the doubt may be dissipated in light of available facts, overcoming the presumption of civilian status might require more than would be the case for an adult. In addition, even if a child is deemed targetable, the allowable means and methods must nevertheless reflect the protected status of children in international law. Read the rest of this entry…

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Self-defense Operations Against Armed Groups and the Jus in Bello

Published on December 16, 2015        Author: 

The Paris shootings and France’s reaction have once again triggered debate on states’ right to self-defense against attacks by non-state actors (see here, here, or here). Discussions normally focus on jus ad bellum issues, such as the ‘unwilling or unable’ test or when a threat is imminent. A question that receives strikingly little attention is whether the invocation of the right to self-defense against a non-state armed group under jus ad bellum would provide a sufficient legal basis for attacking this group by military means. As Marko Milanovic pointed out on this blog, the lawfulness of strikes against a non-state entity does not only depend on jus ad bellum but also on a second layer of legal examination: does the attack form part of an armed conflict and complies with international humanitarian law, or is the attack in questioned governed by international human rights law and possibly infringes on the targeted person’s right to life? This post examines how the use of military force in self-defense against non-state armed groups may be justified under jus in bello. Read the rest of this entry…

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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:

Read the rest of this entry…

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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”)

Read the rest of this entry…

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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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