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In Memoriam: Frits Kalshoven

Published on September 11, 2017        Author: , and

The world has lost one of its greatest international humanitarian law scholars.

On Wednesday 6 September 2017, at the respectable age of 93, emeritus professor Frits Kalshoven passed away. Professor Kalshoven was one of the most well-known and respected international humanitarian law (IHL) scholars, but above all, he was a very kind, warm and humble person – insisting, for example, to always be addressed by his first name. He was a mentor on IHL for us, as he has been to so many. Indeed, for years, the first introduction to IHL for many students was his book “Constraints on the Waging of War”.

Frits began his career as an officer in the Royal Dutch Navy (1945-1967). During his service, he studied law in Leiden. After completing his studies in 1958, he taught law, including IHL, at the Royal Naval Academy. When he left the navy, he joined the law school of Leiden University, where he wrote his PhD on belligerent reprisals (1971), the publication of which is still regarded the standard work on this topic (and which was reprinted in 2005). Between 1975 and 1989, he held the Red Cross Chair in IHL at Leiden University and subsequently was a professor at Groningen University (1999-2002), before returning to Leiden as professor emeritus. As a member of the Dutch delegation, he negotiated, and was one of the drafters, of the 1977 Additional Protocols; and the Certain Conventional Weapons Convention of 1980.

Frits had an enormous passion for IHL. Although he gave his valedictory lecture in 1989 in Leiden, he never really actually retired, but rather continued to be actively involved in the humanitarian law field, helping to shape and develop it. Besides teaching full courses and guest lectures at various universities, he was the first Chairman of the UN Commission of Experts to investigate serious violations of IHL in the Former Yugoslavia (1992-1993), and was a member and president of the International Humanitarian Fact-Finding Commission (1991-2001). He was a long-term Advisor to the Board of the Netherlands Red Cross (1971-1993), and after that always ready to support its IHL department with advice and contributions to its events. Until the very last moment, he continued to attend international law events to engage with other scholars and practitioners, in nearby The Hague, but also in San Remo. Read the rest of this entry…

Filed under: Announcements and Events
 

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…

 

Two Cheers for the ICTY Popovic et al. Appeals Judgement: Some Words on the Interplay Between IHL and ICL

Published on February 4, 2015        Author: 

Two years ago, I criticised the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) seized of the Prosecutor v. Popovic et al. for incorrectly applying international humanitarian law (IHL). In a publication dealing with the challenging interplay between IHL and international criminal law (ICL), I referred to the Popovic et al. Trial Judgement as an example of “problematic rulings” that “qualify acts as crimes against humanity although they would be legitimate under IHL, thereby penalising the behaviour of warring parties in times of armed conflict, if such behaviour formed part of a larger, criminal plan”. Now, I am happy to note that the Appeals Chamber has set the IHL-record straight.

Friday, some 4.5 years after the rendering of the Trial Judgement, the Appeals Chamber rendered its long-awaited judgement in Prosecutor v. Popovic et al. The case concerned the take-over by the Bosnian-Serb army (VRS) of the Bosnian-Muslim enclaves Srebrenica and Zepa and the crimes committed by the VRS in the aftermath, including the (genocidal) murder of several thousand (the actual number was disputed) able-bodied Muslim men. Of the various ICTY cases dealing with these events, this multi-accused case was known as theSrebrenica case”. Since the trial, one of the accused has passed away and another did not appeal his conviction. The remaining five men saw their convictions mostly upheld, bringing to a close this interesting case with accused from different components and various hierarchical levels of the Bosnian-Serb forces. Two life sentences, one 35-year sentence, and one 13-year sentence were affirmed. One sentence was reduced by one year to 18 years.

All in all, this is a good result for the Tribunal, which noted in its press release that this completes the ICTY’s largest case to date. But it is an especially good outcome for the Prosecution, as the convictions at trial were mostly upheld, with a couple of exceptions: Read the rest of this entry…

 

Prlić et al.: The Destruction of the Old Bridge of Mostar and Proportionality

Published on July 31, 2013        Author: 

Picture RogierRogier Bartels is a legal officer in Chambers at the International Criminal Court. The views expressed in this post (and in the article referred to, which was written before he joined the Court) are his own and do not necessarily represent the views of the ICC. He blogs at the Armed Groups and International Law Blog.

 

These last months, most of the blog posts on the ICTY have focused on debatable Appeals Chamber judgements and the associated letter by Judge Harhoff. A significant Trial Judgement (in French) that would normally perhaps have received attention was therefore largely ignored – although the international courts and tribunals’ judgements and decisions in French are often overlooked. The recent judgement in the multi-accused trial Prlić et al. is significant not just because of its length (six volumes totaling almost 2600 pages, including a 576 page dissent) and the time it took to draft (it was rendered more than three years after the end of the Defence case, and well over two years after the closing arguments were held). Most striking perhaps is the Trial Chamber’s determination that the Croatian leadership, including president Tudjman, formed part of a joint criminal enterprise that pursued the establishment of a Croat-only part of Bosnia-Herzegovina (for it to be joined with Croatia); this is especially interesting after the Appeals Chamber’s ruling that the Gotovina Trial Chamber was wrong in its finding in this regard. However, when listening to the delivery of the Prlić Judgement, what really caught my ear was the following “finding” on the destruction of the Old Bridge of Mostar:

On 8 November 1993, as part of the offensive, an HVO tank fired throughout the day at the Old Bridge until it was unusable and on the verge of collapse. The Bridge then collapsed on the morning of 9 November 1993. The Chamber finds, by a majority, with the Presiding Judge dissenting, that although the Bridge was used by the ABiH and thus constituted a legitimate military target for the HVO, its destruction caused disproportionate damage to the Muslim civilian population of Mostar (Judgement Summary, p. 3).

I have recently published an article in the Israel Law Review (open access until half August) on the use of the principle of proportionality in international criminal law, which discusses extensively the ICTY practice with respect to the principle. When listening to (the English translation of) Judge Antonetti reading out the summary of the judgement, I feared that my article was outdated already, as it appeared that theDestruction Mostar Bridge - BBC Majority had applied the proportionality principle in coming to this finding. And not just any finding: one that appeared to include a dual use object and a novel determination on the weighing of the long-term expected incidental damage. I say “appeared” twice because, as will be explained below, the summary was actually quite deceiving in this respect and no such finding was in fact made. (Old Mostar Bridge pictured right, credit)

In the article referred to above, I show that the Tribunal’s practice can be divided into three categories of cases where the different chambers: i) state and clarify the principle, but do not apply it to the facts of the case; ii) make findings on disproportionate or excessive use of force that cannot actually have resulted from an application of the principle; iii) the Gotovina case, in which the Trial Chamber did apply the principle to the evidence, but was then quashed by the Appeals Chamber. In this post, I will briefly discuss the ways in which the principle has been addressed in the ICTY’s case law in order to see where the Prlić case fits in. Read the rest of this entry…