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Home Articles posted by Mark Lattimer

Can Incidental Starvation of Civilians be Lawful under IHL?

Published on March 26, 2019        Author: 

Two recent posts in the recent joint blog series on international law and armed conflict concluded that the siege of a defended locality was permitted under the Law of Armed Conflict (LOAC)/International Humanitarian Law (IHL), but subject to a series of constraints regarding the protection of civilians. The prohibitions on starvation of civilians (in Geneva Conventions Additional Protocol I Art 54, Additional Protocol II Art 14 and in customary law, applicable both to international and non-international armed conflicts) were in particular analysed in Gloria Gaggioli’s excellent post. Given that ‘the prohibition of starvation as a method of warfare does not prohibit siege warfare as long as the purpose is to achieve a military objective and not to starve a civilian population’ (ICRC Customary IHL database, Rule 53), she notes that it is in practice very difficult to prove that the purpose of a siege is the starvation of civilians. However, she goes on to argue, persuasively, that if a siege can be construed as an ‘attack’ the proportionality rule would apply, thereby requiring any incidental starvation of civilians to be assessed against the concrete and direct military advantage anticipated.

As starvation is so central to much of the suffering inflicted on civilian populations in today’s city sieges in the Middle East, I want to return to the question of whether starvation of civilians needs to be the purpose (or even a purpose) of a belligerent to fall within the prohibition and whether incidental starvation may be lawful (if it is not disproportionate), by way of offering some thoughts as to what a legal analysis of the purpose of the relevant siege tactics might look like. If the prohibition on the starvation of civilians was in practice reduced to a prohibition on excessive starvation of civilians, this would obviously severely restrict the protection offered by Art 54 API and Art 14 APII.

We need to ask, firstly, what is the actual conduct denoted by the term ‘siege’ and, secondly, what is the military objective to which starvation of civilians is incidental? Read the rest of this entry…

 
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The Duty to Investigate Civilian Deaths in Armed Conflict: Looking Beyond Criminal Investigations

Published on October 22, 2018        Author: 

Writing in the Times last Friday, General David Petraeus, former commander of US Central Command, added his voice to the familiar refrain that ‘European human rights law’ has given rise to the ‘judicial pursuit of British soldiers and veterans’. Petraeus may be correct in stating that the British emphasis on criminal investigations would never obtain in the US, but looking at some of the legal issues behind his claims undercuts his assumption that ‘restoring the primacy of the law of armed conflict’ would remove scrutiny over the actions of military personnel on the battlefield.

A year after the winding up of the Iraq Historic Allegations Team (IHAT), the controversies over accountability for the UK’s military action in Iraq certainly show few signs of going away. Sections of the press continue to mount a vociferous campaign against the residual work of the Iraq Fatality Investigations (IFI), while calls for investigations into alleged civilian fatalities from more recent UK military action over Mosul are growing.

I reflected on this experience in the course of completing a chapter on international legal obligations to investigate civilian deaths for a new book just published, The Grey Zone: Civilian protection between human rights and the laws of war. The many years of investigations in the UK have arguably resulted in a failure either to deal effectively with outstanding allegations or to deliver justice to many Iraqi victims. This perception may of course be influenced by continuing political disagreement over international military action in Iraq, but it also stems from the particular approach the UK has taken to investigating violations, including the heavy reliance on criminal law. In the current generation of devastating air campaigns, what lessons can be learnt?

UK practice

Beside the need to address public concern about the conduct of military action in Iraq, UK practice on investigations has been driven largely by duties under the International Criminal Court Act 2001 and the Human Rights Act 1998.

The UK’s approach was established early in Iraq (and later applied to UK operations in Afghanistan), with all incidents involving civilian casualties being referred for investigation to the Service Investigation Branch of the Royal Military Police. Comparing US military investigations with those of other states in Naval Law Review in 2015, Commander Sylvaine Wong of the US Navy JAGC noted that the UK had, ‘as a matter of domestic policy, taken the most dramatic steps to rely solely on criminal law enforcement investigations for incidences of civilian casualties.’ Read the rest of this entry…

 
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