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Home International Humanitarian Law Archive for category "Direct Participation in Hostilities"

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

Published on September 9, 2015        Author: 

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

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

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

Read the rest of this entry…

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The Case of Russia’s Detention of Ukrainian Military Pilot Savchenko under IHL

Published on March 3, 2015        Author: 

There has been much debate in recent weeks over whether international humanitarian law (IHL) authorizes internment in non-international armed conflicts (NIACs) (see posts here, here and here). Both sides have presented convincing arguments but without applying them to concrete situations. In this regard, Russia’s ongoing detention of Ukrainian Air Force officer Nadia Savchenko provides a timely case study. As detailed below, the detention of certain categories of people raises questions during both NIACs and international armed conflicts (IACs), depending on who the detaining authorities are.

Lieutenant Savchenko was allegedly captured in full uniform in Eastern Ukraine on or about June 18, 2014 by the armed forces of the Luhansk People’s Republic during active hostilities. Several days later, the separatists transferred her to Russian special forces, who in turn transported her to Russia. Russia, however, claims that Savchenko crossed the border voluntarily and was detained as an undocumented refugee. In any case, on July 9, 2014, Russian authorities announced that Savchenko was detained in a civilian detention center in Voronezh, Russia, facing charges of directing mortar fire that killed two Russian journalists during an attack on a separatist checkpoint outside of Luhansk. Currently, Savchenko is kept in a detention facility in Moscow, facing an additional charge of trespass.

Savchenko, who is on a hunger strike to protest the charges, has filed a complaint before the European Court of Human Rights alleging that her detention violates her rights to liberty (Article 5) and a fair trial (Article 6) as enshrined in the European Convention on Human Rights. The ECtHR gave Savchenko’s initial application priority, but on February 10 refused to grant Savchenko’s Rule 39 request for interim measures compelling Russia to immediately release the prisoner. The court instead asked Savchenko to end her hunger strike and Russia to provide more facts concerning her detention. Read the rest of this entry…

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IHL Does Not Authorise Detention in NIAC: A Reply to Sean Aughey and Aurel Sari  

Published on February 16, 2015        Author: 

As noted by Sean and Aurel, the appeals proceedings in Serdar Mohammed v Ministry of Defence have sparked a renewed debate about detention in non-international armed conflict (NIAC). They have set out their arguments in an interesting article and in summary form in this post. I am not convinced by their arguments though, and despite the fact that certain provisions of the law of NIAC address the restriction of liberty or otherwise recognize that on occasion persons will be held by a party to the conflict, I do not see any authorisation for detention in the black-letter, or customary, law of NIAC. In this reply, I address some of the arguments made in favour of finding such authorisation and put forward an opposing view, in support of Leggatt J’s judgment.

Sean and Aurel, and others claiming that authorisation to detain must exist because it is (partially) regulated, fail to acknowledge that the entire body of post-WW2 IHL shows that the regulation of a situation (or behaviour) does not make the occurrence of that situation legal or authorised. The pragmatism of the ICRC and the recognition that conflicts would continue to occur and regulation of the behaviour of warring parties would continue to be necessary, despite the UN’s insistence that no further need for regulation was necessary after the adoption of the UN Charter that outlawed aggression, does not make it legal to wage war. The fact that rules were adopted for NIAC, did not give armed groups any authorisation to fights their governments (or each other). Nor did it authorise governments to take action against such armed groups. Instead, IHL explicitly recognises that sovereign States had that right, independent of IHL. Read the rest of this entry…

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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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Direct and Active Participation in Hostilities: The Unintended Consequences of the ICC’s decision in Lubanga.

Published on April 11, 2012        Author: 

Nicole Urban is the Research Fellow in International Humanitarian Law at the British Institute of International and Comparative Law and previously read for an MPhil in Public International Law at the University of Oxford.

Last month the ICC handed down the judgment in its first competed trial, the Lubanga Case. Thomas Lubanga was convicted of the war crime of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities in conflicts not of an international character, as set out in Article 8(2)(e)(vii) of the Rome Statute. One of the key issues arising out of the judgment is the Trial Chamber’s interpretation of the term ‘active participation in hostilities’. The question of the meaning of the term arose acutely in relation to whether or not sexual violence against children, in the form of sexual slavery and forced marriages of child soldiers, fell within the scope of “active participation in hostilities”. The majority failed to decide on this question and Judge Odio Benito, in her separate and dissenting judgment, expressed understandable disappointment regarding the majority’s inconclusiveness on this issue.

The majority of the Trial Chamber raised, but did not reach a conclusion on, the legal meaning of term “active participation in hostilities”, as used in Article 8(2)(e)(vii). However, the majority found that ‘active participation’, under this provision of the ICC Statute, is a concept distinct from, and broader than, ‘direct participation in hostilities.’ The Court stated

‘The use of the expression “to participate actively in hostilities”, as opposed to the expression “direct participation” (as found in Additional Protocol I to the Geneva Conventions) was clearly intended to import a wide interpretation to the activities and roles that are covered by the offence…'[para. 627]

This finding is contrary to the position under international humanitarian law [IHL], which treats the terms as synonymous.  The consequences of the majority’s conclusions on this issue are, at this stage, unclear but potentially damaging to the mutually reinforcing relationship between IHL and international criminal law. By setting out this distinction between ‘direct’ and ‘active’, the Majority failed to consider the unintended consequences of its attempt to formulate a broad protection with the regard to the crime of conscripting and enlisting for the protections afforded by Common Article 3 of the Geneva Conventions (1949) and Article 8(c) of the Rome Statute, to those taking no ‘active’ part in hostilities. Equally dangerous is the ambiguous consequences of this ICC decision for the IHL concept of ‘direct’ participation in hostilities and the impact of the decision on those parts of the Rome Statute that incorporate this IHL concept by criminalising attacks on civilians that do not take a “direct” part in hostilities (Articles 8(b)(i) and (e)(i), ICC Statute). This post will set out the position on these issues under both IHL and the Lubanga Case and then consider each of the consequences outlined above.

Read the rest of this entry…

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US/NATO Targeting of Afghan Drug Traffickers: An Illegal and Dangerous Precedent?

Published on September 13, 2009        Author: 

In August, the United States Senate Foreign Relations Committe, released a report (“Afghanistan’s Narco-War: Breaking the Link Between Drug Traffickers and Insurgents”) which confirmed that U.S. forces in Afghanistan are now mandated to kill or capture drug traffickers in Afghanistan who have links to the Taliban. The Taliban is estimated to receive between $70 million and $500 million dollars a year from the drugs trade  and this money is said to play a critical role in financing the insurgency. Therefore, NATO (led on this issue by the US and the UK) consider it essential to starve the Taliban of the funds which make the insurgency in Afghanistan possible. However, targeting of individual drug traffickers or of drugs labs and other objects associated with the drugs trade raises some fundamental questions about who or what is a lawful target in armed conflict. The US and NATO’s policy appears to be a regrettable return to the notion of “quasi combatants” and to the idea of total war in which persons or industries connected to the war effort become legitimate targets. Given that the International Criminal Court has jurisdiction over acts committed in Afghanistan and the Office of the Prosecutor has been collecting information in order to decide whether to open an investigation into alleged crimes committed in that country (see here and the discussion at Opinio Juris), US and NATO commanders ought to pay careful consideration to the legality of their targeting policy.

Read the rest of this entry…

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The Wikipedia Approach to Reality

Published on September 9, 2009        Author: 

I was reading the news today, and was again struck for the umpteenth time by the ease with which people slip into what I now like to call the Wikipedia approach to reality – a phenomenon that I’m sure psychologists have defined in a much more sophisticated way as some form of cognitive bias or another. Take a look at this CNN report regarding a new B’Tselem report on casualties during the Gaza conflict (on which see more from our blog here, here, here, and here):

Read the rest of this entry…

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The Taliban’s New “Code of Conduct”, Compliance with the Laws of War and POW status

Published on August 31, 2009        Author: 

After an absence of a couple of weeks and a summer silence on this blog, we are back.  I’ve got a bit of catching up to do. I want to spend the next couple of days discussing some legal issues arising from recent media reports about the war in Afghanistan. Later this week, I will write about US targetting of drug traffickers in Afghanistan with links to the Taliban. Today I wish to address reports (see here, here and here) indicating that Taliban’s leaders have issued a handbook containing a code of conduct for its fighters. In particular, I am interested in how this issuance of such a “code of conduct” may affect the determination of prisoner of war status in international armed conflicts.

According to FoxNews:

The handbook – written in Pashto and obtained through U.S. military sources – is entitled “Afghanistan Islamic Emirate Rules and Regulations,” and it is addressed to the “Mujahideen Pashto,” or Taliban commanders. Written on May 9 in Kandahar, the birthplace of the Taliban, it characterizes the Taliban’s fight as a “jihad” that can be achieved only if “it is done according to the framework of the established rules and regulations.”

Apparently, part of the purpose of the code of conduct is to win hearts and mind. It is significant that this new code departs from an earlier 2006 code  and contains rules which are similar to rules that exist in international humanitarian law (IHL). For example,while the previous code had explicitly sanctioned  the killing of teachers who instruct contrary to Islamic principles, the new code attempts to reflect the prohibition of targetting civilians and civilian objects. While suicide attacks are not prohibited,

“Suicide attacks should be at high value and important targets because a brave son of Islam should not be used for low value and useless targets,” the code of conduct said. “In suicide attacks the killing of innocent people and damage to their property should be minimized.”

It also says “all mujahideen must do their best to avoid civilian deaths and injuries and damage to civilian property.” And it says that mujahideen “should refrain” from disfiguring of people, such as the severing of ears, nose and lips.

US and Afghan officials have argued that the document is hypocritical, since the majority of civilian deaths in Afghanistan are caused by the Taliban. They also argue that the document is mere propaganda. Its more difficult to see how the document could merely be propaganda as it appears not to have been publicised by the Taliban and had been issued for a few months before it was discovered by the media.

The issuance of the document by the Taliban has a number of implications under IHL. It is interesting to consider whether the issuance of the document would have made any difference to the status of Taliban fighters had it been issued at the time when there was an international armed conflict in Afghanistan (which is no longer the case). The Bush administration argued (see here) that Taliban fighters were not entitled to POW status under the Third Geneva Convention (1949) dealing with Prisoners of War (GCIII)  because the Taliban did not fulfill the conditions of Article 4(A)2 of GCII. Art. 4(A)2 deals with the conditions that irregular forces engaged in an international armed conflict must meet in order to be entitled to POW status. Although the Taliban were the regular armed forces, it is generally accepted that some of the conditions in Art. 4(A)2 also apply to regular forces, though this is not explicitly stated in GCIII. Read the rest of this entry…

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