Breaking news: today the English Court of Appeal unanimously affirmed Leggatt J’s judgment in Serdar Mohammed v. MoD, finding that IHL does not contain authority to detain in non-international armed conflicts. Full (and very lengthy) judgment available here; our earlier coverage is here. Happy to report that some of our earlier posts (three I think) were cited by the Court. Obviously I haven’t yet read all of the decision, but we will have plenty of commentary in the days to follow. I imagine an appeal to the Supreme Court is virtually inevitable.
In early January 2015 the Republic of South Korea sold 1.9 million tear gas canisters to Turkey. With this sale came much campaigning against it. Amnesty International’s “Korea, do not sell us tear gas” campaign received over 50,000 signatures of support. The goal of this campaign was to highlight how the Turkish police force has been and continues to be to this day reckless and excessive in its use of tear gas on certain domestic demonstrations. Reckless and excessive use which, according to data collected by the Turkey Human Rights Joint Platform, led to the death of 19 Turkish citizens between 2006 and 2013 — including four children.
The sale of such large quantities of tear gas to a country that has a proven track record of using it frequently and recklessly raises important questions of international law. It raises questions in particular with regard to the responsibility of third states for internationally wrongful acts and the standard of proof required to establish such responsibility. Put simply, did South Korea commit an internationally wrongful act when it sold tear gas to Turkey?
Tear gas and international law
The name tear gas encompasses a group of substances that irritate mucous membranes and cause stinging sensations and tears. The effect of tear gas is normally considered temporary for a healthy adult so long as they are able to breathe fresh air shortly after exposure. Fatalities have been caused when tear gas has been used in closed spaces, on unhealthy adults or the elderly, or when canisters have been fired directly at protesters.
The use of tear gas is prohibited in wartime both by the 1925 Gas Protocol and the 1993 Chemical Weapons Convention. The 1993 Convention, however, explicitly includes a clause in Article 1(5), inserted at the insistence of the United States, stating that “Each State Party undertakes not to use riot control agents as a method of warfare.” Article II(7) of the 1993 Convention further defines a “Riot Control Agent” as “Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.” This clause, by implication, signals a regime of permissibility for riot control agents — including tear gas — during peacetime. Read the rest of this entry…
Last week I wrote about one particular aspect of the recent Grand Chamber judgments of the European Court of Human Rights in two cases dealing with the aftermath of the Nagorno-Karabakh conflict: Chiragov and Others v. Armenia, no. 13216/05 and Sargsyan v. Azerbaijan, no. 40167/06, namely the Court’s conclusion that belligerent occupation necessarily requires troops on the ground. I also promised a more comprehensive look at the two (very important) judgments, and here it is. The two cases concerned the aftermath in the conflict, in the sense that they dealt with the right of persons displaced by the conflict to access their property (under Article 1 of Protocol 1 to the Convention), rather than with the conflict itself, which was outside the Court’s temporal jurisdiction. That said, there are numerous noteworthy aspects of these two judgments.
First, there is the cases’ basic structure. Both cases were brought by individuals, but there are more than a thousand other applications pending before the Court with essentially the same issues. While these are formally not pilot judgments in the sense the Court uses the term, they are in fact test cases on the basis of which the Court is set to resolve all of the other pending cases, unless the parties choose to settle them first. And while the cases were brought by individuals, they have a strong interstate dimension, not only because of their politically controversial subject-matter, but because Armenia and Azerbaijan both intervened as third parties in the case in which the other state was the respondent (i.e. Armenia intervened in Sargasyan and Azerbaijan in Chiragov). These were, if you will, interstate cases by proxy.
Yesterday the Grand Chamber of the European Court of Human Rights delivered judgments in two blockbuster cases regarding the aftermath of the Nagorno-Karabakh conflict between Armenia and Azerbaijan: Chiragov and Others v. Armenia and Sargsyan v. Azerbaijan. These are very rich judgments raising many important issues, and I will be writing up more detailed comments shortly. But I first had to share one particular little nugget: the Court has (implicitly!) decided that Israel is not the occupying power in Gaza. How so, you ask?
Protection of UN Facilities During Israeli-Palestinian Hostilities: A Brief Assessment of the UN Board of Inquiry Findings
The release of United Nations (UN) documents on Israeli conduct always seems to give rise to controversy and heated debates. However, the latest publication of an UN Board of Inquiry investigating selected actions carried out during the 2014 Israeli and Palestinian hostilities has brought a relatively mild media storm. Israeli‘s acknowledgement of the investigation had already been shown through their active cooperation during the process. The Board’s findings show progress both in terms of quality and approach taken compared to an earlier 2009 investigation into selected incidents during the 2008-09 clashes between the same adversaries. Most importantly, the 2015 Board came up with several recommendations aimed at improving the internal security measures aiding the protection of UN facilities during hostilities. If implemented consistently, these recommendations should limit the abuse of such facilities for military purposes and thus reduce the risk of anyone located there from suffering the consequences of a potential, possibly entirely legitimate, attack.
A summary of the new Board’s report was made public by the UN Secretary General only last April and, like in 2009, the full document was not publicly released. The Board of Inquiry was tasked with investigating incidents which affected or involved UN personnel, premises and operations. The Board was specifically mandated to look into 10 incidents ‘in which death or injuries occurred at, or damage was done to, UN premises or in which the presence of weaponry was reported at those premises’ between 8 July and 26 August 2014. These incidents involved schools of the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).
Of the 10 incidents, three involved schools where weapons were allegedly stored. None of these had been designated or was being used as an emergency shelter at the time. All three schools were in summer recess and, in principle, free of pupils. But in one of them, a schoolyard had been made available for children’s use. The school gate remained unlocked, allowing unrestricted access. The Board subsequently established that weapons were found on all three premises, as previously reported, and in two cases the weaponry was then removed by unidentified individuals in somewhat mysterious circumstances. The Board suggested that one school might also have been used by members of a Palestinian armed group to launch mortar attacks. The Inquiry further concluded that in the remaining seven cases the damaged schools served as emergency shelters and all these attacks were attributed to the Israeli Defence Forces (IDF). Currently, all but one of these incidents are being investigated separately by the Israeli authorities.
The 2009 Board of Inquiry investigated only four incidents involving UNRWA schools. It attributed the attacks to the IDF in three of these. It is possible that two schools were not directly targeted, and that the resulting damage and casualties occurred as a side effect of an attack on another target. No military activity at the premises was established. The 2009 Board’s recommendations appeared almost entirely directed at the UN’s requests to the Government of Israel and did not include any recommendations about the UN’s own due diligence. The 2015 Board’s report was in stark contrast to this earlier report. It looked into the UNRWA internal security practices and arrangements and proposed a number of improvements to them. These included recommendations to enhance security at premises, such as by employing additional skilled security guards, and developing and implementing standard operating procedures for reporting security incidents. Read the rest of this entry…
Prolonged Occupation and Article 6(3) of the Fourth Geneva Convention: Why the International Court Got It Wrong Substantively and Procedurally
I recently gave a paper on prolonged occupation at a UN Roundtable on Legal Aspects of the Question of Palestine. In the law of armed conflict, the notion of “prolonged occupation” is absent from the governing international instruments. It has been little discussed in commentaries, and Adam Roberts cautions that attempting to define the notion of prolonged occupations “is likely to be a pointless quest” (see 84 AJIL 44 (1990) 47)), but Israel’s High Court has employed it in a number of decisions.
The UN meeting in the Hague was perhaps a timely meeting given the outcome of the recent Israeli elections which brought into office a government which includes some ministers who are opposed to the existence of any Palestinian State and others who are opening calling for the annexation of the West Bank. Despite the urging of President Obama, the guidelines for the new coalition government contain no commitment towards a Palestinian State. The conclusion of the Oslo Accords and subsequently the Roadmap for Peace masked the reality of Israel’s occupation of Palestine with the figleaf of a negotiated process between ostensible equals which, under the Roadmap, was meant to have led to a comprehensive settlement of the Israel-Palestine conflict ten years ago. As the outlook of the current Israeli government appears adverse to negotiation, this should put the fact of occupation back on the table.
Lethal Autonomous Robotic Systems (LARS) are machines that are capable of initiating a lethal attack on individuals or other targets. Based on its programming, a LARS can determine whether an individual is a valid target and whether engaging that target is a proportional action, and act upon its own assessment. Such sophisticated systems have long been in the realm of science fiction, but today they are not only a possibility, but a reality. For example, Samsung has developed the SGR-A1, which is currently deployed in the Korean demilitarised zone. Although, for now, that device leaves the final decision to engage to a human.
The debate on the use of such systems is heating up (see for instance the various reports by Human Rights Watch, the Oxford Martin Policy Paper, or discussions on the topic in relation to the CCW). These systems have been criticised from moral, political and legal perspectives. Leaving aside the moral and political objections, the development of a LARS is extremely problematic from the perspective of international humanitarian law. In particular, questions have been raised about the ability of such systems to make distinctions between civilians and combatants, as well as computing the proportionality of an attack. Furthermore, there are complex responsibility questions that are as yet not fully answered.
In response to these problems, the US has issued a directive that all robotic systems of this type will in fact not be operated in a fully autonomous mode, but will always function with a ‘human in the loop’. This statement is apparently intended to undermine at least the legal, and possibly the other criticisms relating to the deployment of LARS.
Human in the loop
It could be argued, however, that the deployment of a LARS with a human in the loop is just as problematic as a fully automated version. While the decision to engage a target will always be overseen by a human being, I will argue that it is not a given that this will in fact influence the functioning of the system sufficiently to adequately safeguard against the problems associated with the fully automated settings.
Firstly, the term ‘human in the loop’ is not very specific. There are a variety of ways in which a system can operate with a human in the loop. Read the rest of this entry…
Geneva Call, a Geneva-based NGO, launches Fighter not Killer, a mobile quiz to raise awareness of the law of armed conflict among armed groups.
Making international humanitarian law more accessible
Today’s conflicts are mostly qualified under international humanitarian law (IHL) as being of a non-international character, i.e. a State against one or several armed non-State actors (ANSAs) or even a conflict among different ANSAs. It is thus critical to secure these actors’ compliance with international norms. The reasons for lack of compliance are diverse: strategic arguments (asymmetric warfare), the complexity of the different treaties and the lack of knowledge of applicable norms, and sometimes defiance toward international norms. These issues make the respect and implementation of IHL by ANSAs challenging, often leading to dramatic consequences for civilian populations.
While the level of knowledge of IHL varies among the different ANSAs, they all share common features. Their members are not necessarily professional combatants and have not been systematically trained on IHL. An uneven level of education and difficulties in accessing areas where ANSAs are operating impede dissemination of and training on IHL norms.
Since 2000, Geneva Call has been engaging in dialogue with more than 100 ANSAs to encourage them to respect IHL and enhance the protection of the civilian populations during armed conflict. In its daily work, the organization enters into dialogue with armed groups and invites them to sign Deeds of Commitment, through which ANSAs publicly commit to respect specific international humanitarian norms. It also supports the dissemination of IHL to commanders, combatants, political leaders of armed groups, and local communities.
Fighter Not Killer: A mobile quiz on IHL
To support this engagement with ANSAs, Geneva Call has developed a set of innovative tools to make IHL accessible to ANSA members. This set includes a mobile phone application, called ‘Fighter not Killer’. Read the rest of this entry…
In late 2013, the Special Adviser on the Prevention of Genocide warned that “there is a risk of genocide” in the Central African Republic (CAR). A year later, with thousands dead and hundreds of thousands displaced, a UN-mandated Commission of Inquiry (CoI) determined that genocide had not occurred because “the threshold requirement to prove the existence of the necessary element of genocidal intent ha[d] not been established…” (Executive Summary). Their answer seems clear, and yet this post will argue the Commission may have reached the wrong conclusion. In doing so, it will also draw attention to discrepancies between the UN’s classifications of genocide and raise questions about the powers of fact-finding bodies more generally.
It should be noted at the outset that the CoI left little doubt that serious crimes had been committed in CAR. Established at the request of the Security Council, the Commission had a mandate to investigate violations dating back to January 2013 when Séléka fighters began their march on CAR’s capital, Bangui. Though some of the worst violence took place on its watch, the Commission could not “establish with any degree of accuracy the number of people who were killed in the conflict.” Conceding that the available estimates “fail to capture the full magnitude of the killings that occurred”, it nevertheless concluded that “all the parties were involved in serious violations of international humanitarian law and gross abuses of human rights including rape and other gender based sexual offences and violations.”
What about genocide?
The CoI’s analysis of this key question begins with the applicable law, where it notes that genocide requires the actus reus (‘specific acts committed against specific groups’), the mens rea of specific (genocidal) intent, and – in line with the Rome Statute’s Elements of Crimes – ‘a manifest pattern of similar conduct directed against the targeted group’ (para. 450). Against this backdrop, the report establishes that the genocide label would prima facie apply only to acts committed by the Christian anti-balaka against CAR’s Muslims. Crucially, genocide would not be applicable to attacks committed by Muslims against Christians. The Commission then assesses the case law of several tribunals in order to distinguish ethnic cleansing from genocide.
This is where the legal analysis takes a perplexing turn. Before it has a chance to examine the legal elements of genocide, the CoI says (para. 452):
…the information available to it reveals repeated instances of crimes against humanity amounting to the fact pattern of ethnic cleansing committed by the anti-balaka in the areas in which Muslims had been living. In terms of criminal responsibility, however, the Commission is of the view that these acts of ethnic cleansing would best be prosecuted with (sic) under the rubric of crimes against humanity, which is the crime category that is explicitly recognized in the Rome Statute and in the relevant legislation of the CAR… [T]he facts of the situation indicated that… crimes against humanity… capture the full essence of the policy of ethnic cleansing that was pursued.
There are two problems with this conclusion. Read the rest of this entry…
On 30 April, the Appeals Court of Cologne will rule on whether Germany has to pay compensation to victims of an airstrike in Afghanistan. Its judgment is likely to consolidate the new German approach to questions of compensation for armed activities which – given the increasing relevance of litigation about armed conflicts – merits a brief treatment.
In 2009, a German colonel ordered an airstrike against two fuel trucks that were stuck on a sandbank near the NATO camp in Kunduz/Afghanistan. Due to the tense situation in Kunduz, he assumed that the fuel or the trucks could be used for a bomb against ISAF units and thus represented an imminent threat. The airstrike caused the death of 142 individuals. Because many among the victims were civilians, it has become the most controversial modern operation involving the German Armed Forces (leading, amongst other things, to the resignation of a minister of government, criminal investigations and the establishment of a parliamentary investigation).
Seeking compensation for damages on the basis of domestic rules of governmental liability (Amtshaftung), victims filed a claim against the Federal Republic of Germany. In 2013, the Court of First Instance in Bonn rejected the claim (for details see my article in the JICJ). Although it held that governmental liability in principle applies to acts in bello, the Court concluded that the colonel did not breach his official duty to comply with international humanitarian law. A press release, summarizing the oral proceedings and the taking of evidence issued in March, indicates that the Cologne Appeals Court intends to uphold the result of the Court of First Instance.
As I have argued elsewhere (see JICJ article, at p 631-633), the legal assessment made by the Court of First Instance is questionable in several respects. Most importantly, it seems that the colonel did not comply with the customary rule encompassed in Art. 57 (2), a (i) AP I. He failed to do everything feasible to verify that the objectives of the attack were neither civilians nor civilian objects. Certainly, the level of precaution necessary depends on the specific circumstances of the attack. However, in this case the fact that trucks had been stuck for seven hours, and thus did not represent an imminent threat, was not sufficiently taken into account. The adoption of the first instance court’s assessment by the Court of Appeals would therefore be problematic.
While the two courts’ interpretation and application of rules of international humanitarian law is highly fact-dependent, a preliminary aspect is of more general relevance, and highlights the particular approach obtaining under German law: on what basis can Germany be held responsible, before domestic courts, for alleged violations of international humanitarian law? Read the rest of this entry…