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Home Archive for category "International Humanitarian Law"

The Tallinn Manual on the International Law applicable to Cyber Warfare

Published on April 15, 2013        Author: 

Liis Vihul is the Tallinn Manual Project Manager, NATO Cooperative Cyber Defence Centre of Excellence, Tallinn, Estonia.

Although scholars began to assess how international law applies in the cyber context during the late 1990s, it was not until the 2007 cyber operations directed at Estonia that the international community became fully sensitised to the subject. For the first time, it became publicly clear that cyber operations are a powerful tool for conveying political or strategic messages by States, non-State groups and individual hackers.  The operations also made the international community aware of how cyber operations could be used to dramatically disrupt life in a country.

The incidents led in part to the establishment of the NATO Cooperative Cyber Defence Centre of Excellence (NATO CCD COE), an international military organisation located in Tallinn, the capital of Estonia.  The Centre is a partnership between eleven States.

In late 2009, NATO CCD COE invited a group of twenty international law scholars and operational legal advisers (the International Group of Experts), under the directorship of Professor Michael Schmitt of the United States Naval War College, to conduct a three year research project examining the norms applicable during cyber warfare. The product of this effort is the “Tallinn Manual on the International Law Applicable to Cyber Warfare”, published in March by Cambridge University Press.

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Filed under: Cyber Warfare, EJIL Analysis, International Humanitarian Law, Use of Force
 

Progressive Development of International Human Rights Law: The Reports of the Independent International Commission of Inquiry on the Syrian Arab Republic

Published on April 13, 2013        Author: 

Tilman Rodenhäuser is a PhD candidate at the Graduate Institute in Geneva.

The crisis in Syria has entered its third year and violence has risen to unprecedented levels. This is not only the case for acts committed by regime forces but also for violence by members of different armed groups fighting the Assad regime. At a time when the situation in Syria was still marked by the crackdown of regime forces on protesters, the Human Rights Council decided in August 2011 to establish a Commission of Inquiry. The Commission is mandated to investigate all alleged violations of international human rights law since March 2011, to establish facts, and to identify perpetrators in order to ensure accountability in the future. Documenting human rights violations at the different stages of the crisis, the Commission of Inquiry made some remarkable findings, particularly on the law applicable to acts of violence committed by opposition forces. First, in a situation where international humanitarian law did not apply because the Commission was unable to establish the existence of an armed conflict, it found that armed groups were bound by human rights obligations constituting peremptory international law. Second, in its recent report of February 2013, the Commission found armed groups in violation of Article 4 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

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Filed under: Armed Conflict, International Humanitarian Law, Syria
 

The Law Applicable to Peacekeepers Deployed in Situations where there is No Armed Conflict

Published on April 10, 2013        Author: 

Siobhán Wills  is Professor of Law at the University of Ulster, Northern Ireland.

I have been researching the peacekeeping operation in Haiti, MINUSTAH, and in doing so coming up against a problem that I would appreciate the  thoughts of EJIL:Talk! readers on. There have been a number of incidents that have raised complaints of excessive use of force and counter arguments that the force was not excessive.  My query is simply ‘what law applies’ to the peacekeeping mission (in particular in the context of the use of force) given that there is not, and never was, an armed conflict in Haiti. When the Security Council authorises use of force (whether in an enforcement action against a State or in a peacekeeping operation) I assume that the coalitions of the willing or UN troops undertaking the action must exercise their authority to use force in accordance with international law. But if there is no armed conflict what law governs peacekeepers’ use of force under Chapter VII?

Reports and commentaries by MINUSTAH personnel suggest that the commanders of MINUSTAH, and their political advisors at the UN, and advisors from the US, France and Canada, believe that since MINUSTAH has a Chapter VII mandate they can use whatever force they deem necessary to carry out that mandate so long as they comply with their Rules of Engagement (ROE). However, presumably the ROE must be drafted to fit within the constraints of the applicable international law framework. MINUSTAH’s ROE are not publicly available but the language used in MINUSTAH reports and commentaries suggests that International Humanitarian Law (IHL) is the overall governing framework within which the mission believes it ought to be operating. (Certainly mission personnel do not appear to be thinking within a Law Enforcement framework and frequent references to ‘collateral damage’ suggest an IHL framework). This would not be surprising since IHL is the law in which peacekeepers are primarily trained ie when peacekeepers initiate use of force they do so within a legal framework (they don’t make up their own rules just because they have a Chapter VII mandate) and that framework is normally IHL.

I have not spoken to anyone from MINUSTAH but I have spoken to commanders that have served in UN peacekeeping missions in other countries where there is no armed conflict (UNMIL in particular) and their view is that, regardless of whether or not there is an armed conflict in the country to which they are deployed, if the mission has a Chapter VII mandate it may use whatever force is necessary to carry out that mandate; and when the mission does use force for this purpose IHL becomes applicable to that particular operation.

I have sympathy for commanders trying to carry out their tasks under a Chapter VII mandate in a violent and volatile situation; but I do not understand how (or on what basis) IHL can be applicable where there is no armed conflict. Read the rest of this entry…

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Filed under: Armed Conflict, International Humanitarian Law, Security Council
 

Some Observations on the Turkel Report and the Investigation of Wrongdoing by the Armed Forces

Published on March 13, 2013        Author: 

Alon Margalit is Research Associate, Hotung Programme for Law, Human Rights and Peace Building in the Middle East, SOAS, University of London.

The long awaited Turkel report which examines Israel’s practice of investigating allegations of wrongdoing during armed conflict by its security personnel was published in early February 2013.  The report (see original in Hebrew and an English translation) was issued by an expert Commission established by the Israeli government in June 2010 and headed by Jacob Turkel, a former judge of the Israeli Supreme Court.  The Turkel Commission produced an earlier report in January 2011 which dealt with legal aspects of the Israeli blockade of the Gaza Strip and the interception of the Gaza-bound flotilla in May 2010 (this report was discussed here).  The second and final report of the Commission considers whether the mechanisms employed by Israel to investigate complaints regarding violations of the Laws of Armed Conflict (LOAC) attributed to members of its armed forces conform with the state’s obligations under international law.

To a large extent, the Turkel report is a response to the report of the UN Human Rights Council Fact-Finding Mission (the Goldstone Report) that was published in September 2009 and looked into alleged violations of international humanitarian law and human rights law during the December 2008-January 2009 Gaza Conflict (codenamed by Israel as ‘Operation Cast Lead’).  The Goldstone Report, which was later endorsed by the UN General Assembly, found “major structural flaws” in the Israeli military justice system responsible for handling complaints of serious wrongdoing by Israeli soldiers, and further concluded that Israel’s investigation policies do not meet the required international standards.  The main concerns were the use of internal military investigations by the chain of command to examine complaints, as well as the dual role of the Israeli Military Advocate General (MAG).  The Fact-finding Mission was troubled that the MAG’s responsibility to provide legal advice to the military authorities creates a potential conflict of interest with the parallel responsibility to order the investigation and prosecution of unlawful actions which at times might be based on the MAG’S own legal advice.

Those issues were addressed by the Turkel Commission.  Four Israeli members and two non-Israeli observers prepared the report for two years.  They examined evidence provided by Israeli officials, academics and human rights NGOs, and further consulted several international law experts.  The comprehensive report which analyses the duty to investigate under LOAC and the relevant Israeli practice includes a significant comparative element.  To use the Commission’s own words, the report stands out in the sense that “is the result of considerable efforts to derive the main principles of international law from sources that are often vague and unclear”.  It is therefore a valuable document which might have a meaningful impact beyond the concrete Israeli context. Read the rest of this entry…

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Filed under: Armed Conflict, EJIL Analysis, International Humanitarian Law, Israel
 

Drones, Battlefields, and Asking the Right Questions

Published on February 28, 2013        Author: 

Noam Lubell is Reader in Law, University of Essex. He can be followed on Twitter @nlubell.

Not only is the debate over the use of unmanned aerial vehicles (drones) not going away, it appears to be consistently growing, with ever new examinations and reports. It tends to encompass – and sometimes unnecessarily conflate – a number of issues, including:

  • The advantages, disadvantages and legality of the drone technology itself, e.g. should there be restrictions on remote controlled (or moving on to autonomous) methods of warfare.
  • The manner in which the use of drones appears to further the concept of a ‘global battlefield’, and a ‘global war against Al-Qaida’ (or ‘war on terror’, take your pick).
  • The ius ad bellum aspects in relation to drone strikes on the territory of another state.
  • The adherence to the law of armed conflict – if and when it applies – in specific drone strikes, especially concerning the status of individuals killed by drone strikes, and rules on indiscriminate attacks and proportionality.
  • Accountability for drone strikes and transparency over their use.
  • The applicability of international human rights law to drone strikes. In the US this point has taken on an extra US-centric twist, with regard to constitutional law and powers, and the implications with regard to US citizens.

There are obvious links between these issues and they all affect each other in a myriad of ways, but any examination of the international law applicable to drone strikes must also understand that the above all need to be taken into account and given separate attention, before any attempt is made to assess the overall picture of legality. Clearly there’s no room to cover all the above in adequate detail in this one post, but I would like to briefly address the second point above, and the way it links to some of the other issues.

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Filed under: EJIL Analysis, Targeted Killings
 

An Easy Exam Question on the Right to Life

Published on February 8, 2013        Author: 

You are a police officer, patrolling an area known to be a favourite hunting ground of a serial killer. The killer has managed to elude all efforts to track him down so far. All you know about him is that he is a total slave to ritual, killing with a knife a single female victim on the first day of each month, and never deviating from this pattern. Today is one such day.

Today also seems to be your lucky day.  Through sheer chance you stumble into an alley where you discover what could only be the serial killer repeatedly stabbing his victim through the chest. It unfortunately wasn’t her lucky day and she expires on the spot. The killer is wearing a jacket with the words ‘Yo, I’m Dexter Morgan, serial killer’ emblazoned on the back in bright, red letters. You shout: “Stop! Police! You are under arrest. Drop down your weapon.”

Rather than drop the knife, Dexter throws it at you with lightning-fast reflexes. This being your lucky day, the knife merely grazes your forehead, but the cut starts bleeding profusely. He runs; you pursue. You chase him from corner to corner, street to street. It’s all very exciting, and would look great on screen. But he is fast; certainly faster than you (while you’re not exactly fat, your mother still calls you ‘my big boned sugarpuff’ with a mix of pride and tenderness).

You realize that you are losing him. In a few moments he will be entering a labyrinthian maze of service tunnels going underneath the city. Once he does, you will lose him for sure. You shout: “Stop, or I will shoot!” He predictably ignores you. Well, he does somehow manage to flick a finger in your general direction.

You aim your gun. You know you’ll have the time for only one shot before he enters the tunnels. The blood flowing from the cut on your forehead makes aiming difficult. Even though you are pretty handy with a gun, you think that you will probably miss if you fire at his legs, with the purpose of stopping him. If you fire at his torso, which presents a much bigger target, you will probably hit him – but also probably kill him. You steady your aim, thinking back to your training. Do you fire?

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Filed under: EJIL Analysis, Right to Life, Targeted Killings
 
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A Few Brief Thoughts on the DoJ White Paper

Published on February 7, 2013        Author: 

The recently leaked US Department of Justice White Paper on targeted killings has now been thoroughly dissected in the blogosphere (see, in particular, Kevin Heller’s and Deborah Perlstein’s comments on Opinio Juris here, here, and here, as well as Steve Vladeck’s take on Lawfare). I have little to add to this – in part because, as Ben Wittes and Susan Hennessay point out, there is actually fairly little new in this memo when you compare it to the various speeches on drones given by Obama administration officials. The substantive arguments or positions are essentially the same.

Where the White Paper is different, however, is in its format and size. It is not the ‘real’ legal memorandum prepared by the Office of Legal Council in the DoJ, which it allegedly summarizes to an extent, but neither is it a mere speech. It is written in legalese, it has footnotes and citations, it has the form of a legal document even if perhaps not all of its trappings. I must say that I really do not understand the administration’s reluctance to release the OLC memo itself, with redactions for any classified materials, and the need to produce this kind of quasi-summary. Nobody’s really happy with that (I won’t even get into a rather unflattering comparison with the policies of the Bush administration on similar matters), and there doesn’t seem to be any real benefit to such a strategy of creeping disclosure (indeed, leakage). The administration has now announced that it will disclose the memo to Congressional intelligence committees, but whether a redacted version will be made public is yet to be clear.

The White Paper is thus what we’ve got so far. And if we judge it on its own merits it doesn’t come accross well, for reasons given mostly be Kevin and Steve. Here’s a few additional points.

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Filed under: EJIL Analysis, Self Defence, Targeted Killings, Use of Force
 

The UK’s Use of Drones in Afghanistan and Its Definition of “Civilians”

Published on January 31, 2013        Author: 

Last week, Ben Emmerson QC, the UN Special Rapporteur on Counter-Terrorism and Human Rights announced that he was establishing a panel which will investigate allegations that drone strikes and other forms of remote targeted killing have caused disproportionate civilian casualties. The panel is charged with making recommendations regarding the obligation of States to conduct independent and impartial investigations into such allegations with a view to securing accountability and reparations. Most of the attention regarding the use of drones for targeted killing has, been focused on the United’s States drone programme. This is understandable as the vast majority of drone operations for targeted killing have been carried out by the US. However, it is implicit in Ben Emmerson’s statement that he also intends to examine the use of drones by other countries, and particularly by Israel and by the United Kingdom (see report by the Guardian).  This is because he mentions the use of drones in the “State of Palestine” and also refers to co-operation he has received from the government of the UK.

It is not well known that the UK also uses drones or Unmanned Aerial Vehicles (UAVs) for targeted killing and there has been little analysis of casualties arising from UK drone strikes.  A recent report by the UK House of Commons Library provides an overview of the:

“The strengths and weaknesses of UAVs, the different types of UAVs in use by the UK Armed Forces in Afghanistan, rules of engagement and highlights some of the points raised by those concerned about their development and use.”

The report points out that:

“Reaper is the only armed remotely piloted aircraft system used by the UK. It is only deployed in Afghanistan. Defence Minister Andrew Robathan has confirmed the UK does not use armed UAVs against terrorist suspects outside Afghanistan. Defence Minister Philip Dunne has confirmed it has not been used in Pakistan or Somalia. The MOD has not made a decision as to whether to retain Reaper once combat operations end in Afghanistan. As of 1 November 2012, 297 Hellfire precision guided missiles and 52 laser guided bombs have been employed by Reaper since operations began in Afghanistan. Reaper deployed to Afghanistan in 2007 but only had the capability to deploy air-to-ground weapons since May 2008.” (p. 11)

Civilian Casualties from UK Drones

One of the criticisms of the US drone programme is the US claim that few or indeed no civilians are harmed by drone strikes. This is a claim that has been disputed by journalists and others (see for example, the Bureau of Investigative Journalism). The UK makes a similar claim in relation to its programme. Read the rest of this entry…

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Filed under: Afghanistan, Armed Conflict, Direct Participation in Hostilities, EJIL Analysis, Targeted Killings
 

Remote Attack and the Law

Published on November 7, 2012        Author: 

Dr William BOOTHBY Dr Bill Boothby, the former Deputy Director of Legal Services for the Royal Air Force, published through OUP his doctoral thesis on Weapons and the Law of Armed Conflict in 2009; he has now published his second book, again through OUP, on The Law of Targeting.

This post looks at three modern forms of distance attack, by autonomous unmanned platforms, by cyber means and in outer space, and asks whether they challenge, or are challenged by, contemporary law.  It concludes that in any challenge the law is likely to prevail, and suggests the extent to which, and conditions on which, such novel and increasingly controversial technologies may indeed prove to be legally compliant.

On 29 November 2011, The Guardian, discussing US drone strikes in Pakistan, asserted that the US military makes deadly mistakes all the time.  Al Jazeera has reported that during the period May 2011 to March 2012 about 500 people, many of them civilians, were killed in US drone strikes to push Al Qaeda from the Arabian Peninsula.  And yet, CNN recently reported New America Foundation research showing a markedly reduced civilian proportion of casualties in US drone strikes in Pakistan (from about 50 percent in 2008 to close to zero) which the researchers attribute inter alia to a presidential directive to tighten up target selection, the use of smaller munitions, longer linger periods over targets and congressional oversight.

So is new technology challenging the law, or is it the other way round?

There is nothing new about the idea of fighting at a distance.  The heroic Homeric tradition of the phalanx and of the hoplite fighting at close quarters was already in ancient Greek times called into question by the use of the bow, artillery and catapults, and the process of remote attack has continued to develop in succeeding centuries and millennia, spurred on by the evident military advantage such methods yield. But the Homeric objections persisted, for example during the Kosovo conflict in the form of objections to the NATO 15,000 feet bombardment policy.

And yet since World War II, the capacity to deliver ordnance from the air with precision has developed apace –the statistics are startling in terms of the reduced number of sorties required to get a bomb delivered from high altitude to within a given distance of a hypothetical target. So, and forgive a degree of over-simplification, the lay assumption that the closer the pilot is to the target the better has been trumped by technological innovation.

Is there anything qualitatively different about future developments in the realm of remote attack?

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Filed under: Cyber Warfare, EJIL Analysis, International Humanitarian Law, Targeted Killings
 
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The Copenhagen Process: Principles and Guidelines

Published on November 3, 2012        Author: 

Jacques Hartmann is Lecturer in Law, Dundee Law School, Scotland.

On 20 October the Danish Government published a set of ‘Principles and Guidelines’ on the handling of detainees in international military operations. The Principles addresses uncertainties surrounding the legal basis for detention and the treatment of detainees during military operations in non-international armed conflicts, such as current operations in Afghanistan or Iraq. An impressive 22 States, including the P5, have expressed support. Human rights organisations, on the other hand, have expressed dismay. The following provides a short background to and comments on the non-legally binding text.

The Principles and Guidelines are the outcome of a five-year long process that was initiated by the Danish Government in 2007 – the so-called ‘Copenhagen Process’. The process was initiated in recognition of the fact that bilateral or ad-hoc solutions to detention during international military operations often led to unacceptable differences in the handling of detainees, which, according to the Danish Ministry of Foreign Affairs (MFA), are not only unsatisfactory in relation individual protection but at times also constitute a hindrance to effective military cooperation. Read the rest of this entry…

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Filed under: EJIL Analysis, Human Rights, International Humanitarian Law