Home Posts tagged "armed conflict"

Hospital Bombings: Empirical and Theoretical Fallacies of Those Rejecting a Ban

Published on August 16, 2019        Author:  and

The argument we advance in our recent EJIL Article, ‘‘Hospital Shields’ and the Limits of International Law’, emerged from analysis of empirical data showing how, during the past several years, hospitals were being bombed on a daily basis. Comparing these attacks with official statements released by actors suspected of bombing hospitals, we discovered that one of the recurrent arguments used to legitimise the strikes was that the facilities had been transformed into ‘hospital shields’ and used to conceal military targets. We then decided to reconstruct the history of hospital bombings and found that since 1911 — the first time medical units were bombed from the air — belligerents have consistently justified aerial strikes by claiming that the medical units were being used to hide combatants or harbour weapons.  

This revelation led us to examine in detail the historical development of the legal clauses dealing with the protection of medical units in armed conflicts. Our analysis revealed that the clauses include a number of exceptions that have allowed belligerents to assert that the bombing was carried out in accordance with IHL. We argue that belligerents can do this since hospitals occupy a spatial and legal threshold during armed conflict, and that IHL, which is informed by the rigid distinction between combatants and noncombatants, does not have the vocabulary to deal with liminal people and objects. This, we maintain, enables belligerents to use the law to justify the attacks.  

Our assumption throughout the paper is that IHL is subject to constant interpretation and reinterpretation, and that the way states interpret the law — even if we disagree with their interpretation — helps to establish the law’s meaning. International law is, after all, shaped by states, and through their practices, manuals and utterances they help determine the interpretation of its clauses. Hence, the fact that for over a century many states, among them the most powerful ones, have justified the bombing of hospitals by claiming that they were used as shields is not something we can dismiss by simply claiming that they are misinterpreting the law. After all, those very states introduced the hospital shields exception.  Read the rest of this entry…


Protecting the Environment in Non-International Armed Conflicts: Are We There Yet?

Published on July 16, 2019        Author:  and

The International Law Commission (ILC) during its current 71st session has provisionally adopted, on first reading, the Draft principles on the protection of the environment in relation to armed conflict. The first-reading text had taken five years to prepare, under the successive leaderships of Special Rapporteurs Ms. Marie G. Jacobsson (2013 – 2016), and Ms Marja Letho (2017-2019). The last report of Special Rapporteur Letho (2019) completed the work on this topic, focusing in particular on the question of environmental stresses related to non-international armed conflicts (NIACs). This blog post deals first with certain general issues as to the scope and form of the draft principles, and then discusses whether the draft principles are sufficiently responsive in the context of NIACs.

Scope and methodology of the topic

With respect to the ratione temporis of the draft principles, the ILC employed a temporal approach by drafting provisions structured according to three phases of an armed conflict: before (preventive measures, but also principles of a more general nature of relevance to all three temporal phases), during (the conduct of an armed conflict) or after (post-conflict measures in relation to environmental damage) an armed conflict. The rationale of the topic was to address the law of armed conflict but also other areas of international law. The scope of the topic (peacetime and wartime obligations) inevitably influenced the outcome, which led the ILC to adopt “principles” at a more general level of abstraction, albeit with different normative values, from recommendations to fully binding rules. Read the rest of this entry…

Filed under: Armed Conflict, Use of Force
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20 Years of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in Armed Conflict: Have All the Gaps Been Filled?

Published on May 29, 2019        Author: , and

Just over twenty years ago, on the 26th of March 1999, the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (hereafter Second Protocol) was adopted. Following the Balkan wars, there was a sense that the 1954 Hague Convention, the key treaty protecting cultural property, was not entirely fit for purpose. It had for example left the concept of ‘imperative military necessity’ undefined, leaving too much leeway for interpreting the way it should be applied on the ground. The Second Protocol attempted to clarify this exception to the obligation to respect cultural property in armed conflict by narrowing its scope, i.e. only permitting an act of hostility against cultural property if that object was made, by its function, a military objective and if there is no feasible alternative available to obtain a similar military advantage (Art 6(a) Second Protocol). It added that the use of cultural property in a manner that puts it at risk of damage or destruction is only possible for as long as there is no other means to gain a similar military advantage (Art 6(b) Second Protocol). Finally, it added that only commanding officers may invoke ‘imperative military necessity’ (Art 6(c) Second Protocol).

Importantly, the Second Protocol devised a new form of additional protection. The system established under the 1954 Hague Convention allowing states parties to request ‘special protection’ for a limited range of buildings (refuges sheltering cultural objects from armed conflict, centres containing monuments, and other immovable cultural property of great importance) had not garnered much success. While the advantage to being placed under special protection is clear, with the property benefitting from immunity, i.e. that the States parties must refrain from any act of hostility against it and from any use of it or its surroundings for military purposes which could turn the property into a military objective, only Vatican City and a small number of refuges had been entered on the International Register of Cultural Property under Special Protection’ by the time the Second Protocol was being drafted. The Second Protocol tried to address the failure of the special protection system by replacing it with that of ‘enhanced protection’, which has the ability to encompass many more properties : any movable or immovable property can now be considered and there is no longer any requirement for the property to be situation at a sufficient distance from industrial centre or potential military objectives, a major obstacle to the listing of any property situated in or near a city (Art 10 Second Protocol). Read the rest of this entry…

Filed under: Armed Conflict
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Closing a Protection Gap in IHL: Disciplinary Detentions by Non-State Armed Groups in NIACs

Published on July 3, 2018        Author: 

Detentions by non-state armed groups (NSAGs) in non-international armed conflicts (NIACs) have been extensively analysed in the last few years. Most discussions have focused on whether the legal basis for the parties to NIACs to deprive their enemies or civilians of their liberty is implicit in international humanitarian law (IHL), or if it could alternatively be found elsewhere (para. 727).

Detentions by NSAGs of their own members have also been addressed, but only with respect to the command responsibility and prevention of IHL breaches. Although the analysis on the legal basis for detentions by NSAGs has been exhaustive, the possible detention of NSAGs’ own members as a result of a disciplinary measure without an IHL or criminal component has not yet been thoroughly studied (Clapham, 19-20). As it will be seen below, by not addressing these a person who intends to challenge his or her grounds of detention before the authorities of a NSAG could face a legal “black hole”.

The ICRC and The Two Types of Detentions in NIACs

The ICRC has explained that two types of detentions are included within the scope of Common Article 3 (CA3): those carried out in the context of criminal processes, for which CA3 imposes to the parties the obligation to a fair trial, and those detentions outside criminal processes, also known as “internment” (paras. 717-718).

In the first case, individuals would be detained for the commission of a criminal act, including violations to international law. Interestingly, the ICRC has affirmed that CA3’s reference to the “the passing of sentences and the carrying out of executions” alludes to criminal law procedures. Sentence is defined in this context as the judgment:

“that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer. This means that the guarantee of a fair trial in common Article 3 applies to the prosecution and punishment of persons charged with a penal offence” (para. 676, emphasis added).

Although not being the unanimous view (for instance, here, para 1451, and Cassese et al., p. 71), the ICRC has explicitly recognized that this type of detention applies to the parties’ own forces, which includes NSAGs:

Examples would include members of armed forces who are tried for alleged crimes – such as war crimes or ordinary crimes in the context of the armed conflict – by their own Party […] The fact that the trial is undertaken […] by their own Party should not be ground to deny such persons the protection of common Article 3 (para. 547).

Read the rest of this entry…

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Hybrid Threats and the United States National Security Strategy: Prevailing in an “Arena of Continuous Competition”

Published on January 19, 2018        Author:  and

The dividing line between war and peace is blurred. This is one of the messages emerging from the National Security Strategy (NSS) of the United States of America adopted in December 2017. The United States is accustomed to viewing the world through the binary lens of war and peace, yet in reality, warns the new National Security Strategy, international relations is an “arena of continuous competition” (p. 28).

This is not exactly a new theme. The idea that war and peace are relative points on a continuous spectrum of confrontation, rather than mutually exclusive conditions, has become quite popular in recent years. Writing in 2013, General Valery Gerasimov, Chief of the General Staff of the Russian Federation, observed that the 21st century has seen a tendency “toward blurring the lines between the states of war and peace”. Speaking in 2015, Sir Michael Fallon, the former British Secretary of State for Defence, declared that contemporary adversaries are deliberately seeking to “blur the lines between what is, and what is not, considered an act of war”. More recently, Jens Stoltenberg, NATO’s Secretary General, suggested that in the past “it was easy to distinguish whether it was peace or war … [b]ut now there’s a much more blurred line”.

The fluidity of war and peace is central to the vocabulary of “gray zone conflict” and “hybrid warfare”. Both concepts are preoccupied with the strategic challenges that adversaries operating across multiple domains present. The notion of gray zone conflict puts the emphasis on the sphere of confrontation, concentrating on the fact that adversaries operate in the area of ambiguity that lies between the traditional state of war and state of peace (see US SOCOM, The Gray Zone). By contrast, the notion of hybrid warfare emphasises the modus operandi adopted by certain adversaries and competitors, focusing on their use of the full range of military and non-military means in a highly integrated manner (see NATO, Wales Summit Declaration, para. 13). Read the rest of this entry…

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