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Joint Blog Series on International Law and Armed Conflict: Jann Kleffner on ‘Wounded and Sick and the Proportionality Assessment’

Published on October 13, 2017        Author: 

The final installment of our joint blog series arising from the 2017 Transatlantic Workshop on International Law and Armed Conflict, ‘Wounded and Sick and the Proportionality Assessment’- by Jann Kleffner (Swedish Defence University) is now available on Intercross

Here’s a taster of Jann’s post:

For all wounded and sick other than civilian ones, the question looms large how that obligation to respect and protect in all circumstances can be squared with the absence of such persons from the collateral damage side of the proportionality equation. The following possibilities present themselves.

Option 1The obligation to respect and protect such wounded and sick in all circumstances could be interpreted to mean that any incidental harm to them falls foul of the obligation and hence constitutes a violation of the law of armed conflict.

[…]

Option 2: The right of parties to an armed conflict to attack lawful targets could be understood to supersede the obligation to respect and protect the wounded and sick other than civilian ones.

[…]

Option 3The obligation to respect and protect could be interpreted to require a proportionality assessment in which incidental harm to wounded and sick other than civilian ones is legally assimilated to harm to civilians.

Read the rest of the post over on Intercross.

 

Thanks to all who participated in this joint blog series. Special thanks to post authors, readers and commentators, and to our partners over at Intercross and Lawfare. 

 

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Joint Blog Series on International Law and Armed Conflict: Geoff Corn on Wounded and Sick, Proportionality, and Armaments

Published on October 11, 2017        Author: 

The fourth post in our joint blog series arising from the 2017 Transatlantic Workshop on International Law and Armed Conflict, ‘Wounded and Sick, Proportionality, and Armaments’- by Geoffrey Corn (South Texas College of Law Houston) is now available on Lawfare.

Here’s an excerpt: 

Imagine you are commanding forces that have just repulsed a combined arms enemy ground attack. The enemy is now withdrawing, and you observe what are obviously wounded enemy soldiers being loaded onto enemy combat vehicles. You fully anticipate the enemy to regroup in order to continue the offensive. These vehicles are not protected because they are not properly marked nor exclusively engaged in the collection and evacuation of the wounded and sick. Instead, the enemy is employing the common practice of evacuating wounded with any available combat vehicle. While this is occurring, other enemy forces are providing covering fires in support of the withdrawal. You have on-call close air support assets, and your air support coordination liaison asks if the enemy vehicles should be attacked? The enemy vehicles are lawful objects of the attack, but you know that the military wounded and sick must be respected and protected. It is therefore clear that an attack may not be directed against the wounded enemy soldiers. But the ICRC’s updated Commentary asserts that before launching the attack on the withdrawing enemy forces who are not hors de combat you must assess whether the risk created to the wounded enemy personnel is excessive in relation to the concrete and direct military advantage anticipated.

[…]

Suggesting that such an obligation is logically inferred from the civilian proportionality rule is fundamentally flawed, because unlike military personnel, civilians (who do not take a direct part in hostilities) do not accept the risks of combat. 

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On Whether IHL Applies to Drone Strikes Outside ‘Areas of Active Hostilities’: A Response to Ryan Goodman

Published on October 5, 2017        Author: 

Over on Just Security, Ryan Goodman has an excellent post entitled Why the Laws of War Apply to Drone Strikes Outside “Areas of Active Hostilities” (A Memo to the Human Rights Community). In sum, Ryan argues that human rights activists have been too radical in their critique of US drone strike policy, as reflected in the Presidential Policy Guidance adopted during the Obama administration, and in the context of the Trump administration’s recent proposal to revise this standing policy and relax some of its requirements, especially with regard to the procedure for authorizing lethal strikes. In particular, Ryan argues that human rights activists have been portraying as clearly unlawful decisions which legally fall within the bounds of reasonable disagreement.

In that regard, Ryan argues – persuasively in my view – that the mere fact that a drone strike takes place outside an area of active hostilities under the PPG does not mean that the strike takes place outside armed conflict under IHL. The former, as Ryan correctly notes, is not even a legal term of art. I also agree with Ryan that some US positions that used to be regarded as novel or anomalous have become mainstream with time, in part through the acceptance of these positions by European and other states, by the ICRC and scholars – viz., for instance, the idea of ‘spillover’ NIACs (for more on the operation of this mainstreaming process see here; on spillover NIACs see here).

That said, Ryan in some respects significantly overstates his argument. Yes, states have accepted the idea that they can be engaged in an armed conflict with a terrorist group – but I would say that this really was never in doubt. What was in doubt is whether this NIAC can be global in scope, and this US position has not been mainstreamed – or at least I am unaware of any other state which agrees with it. What do I mean by this?

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Joint Blog Series on International Law and Armed Conflict: Ashley Deeks on Common Article 3 and Linkages Between Non-State Armed Groups

Published on October 4, 2017        Author: 

The second post in our joint blog series arising from the 2017 Transatlantic Workshop on International Law and Armed Conflict, ‘Common Article 3 and Linkages Between Non-State Armed Groups’- by Ashley Deeks (University of Virginia School of Law) is now available over on Lawfare.

Here’s a snippet:

Assume State A finds itself in a NIAC with a NSAG – call it “Group X.”  What happens if and when another NSAG – call it “Group Y” – begins to provide certain assistance to Group X?  At what point does Group Y become part of the State A/Group X NIAC, and thus become subject to military force by State A?  This question has arisen in a variety of scenarios, including in the interactions between core al Qaeda and al Qaeda in the Arabian Peninsula and between al Qaeda and al Shabaab.

[…]

Approach 1 – State A should never treat Group X and Group Y as participating in single armed conflict.  Instead, State A should treat its fights with Group X and Group Y as two distinct NIACs.

[…]

Approaches 2 and 3:  These two approaches analogize from the concept of co-belligerency, which originated in international armed conflicts. Approaches 2 and 3 (described below) take different positions on what that concept requires.

[…]

Approach 3 – Assistance by Group Y to Group X in Group X’s NIAC against State A is enough to render Group Y a functional co-belligerent, even if Group Y does not directly engage in hostilities against State A.

[…]

Approach 4 – Use the ICRC’s “direct participation in hostilities” (“DPH”) factors to evaluate Group Y’s efforts in relation to the State A/Group X NIAC.

Read the full post on Lawfare.

 

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The Defense of ‘Obedience to Superior Orders’ in the Age of Legal Clearance of Military Operations

Published on August 24, 2017        Author: 

A military pilot receives an order to bomb a building in a densely populated city. He is told that the order has received legal “clearance” from military legal advisors. Can the pilot refuse to obey the order without being punished, since he feels that the order is manifestly unlawful? Will the pilot be held criminally responsible if he obeys, and the order is determined, after the bombing, to be manifestly unlawful?

In our brave new world in which many military operations routinely receive legal clearance by military lawyers, these questions have become highly relevant. Last month’s judgment of the Israeli Supreme Court in HCJ 1971/15 Al-Masri v. The Chief Military Advocate General (in Hebrew) offers interesting answers to these questions in an obiter dictum. In the first section of this post, I briefly introduce the legal dilemma at the heart of these questions. Then I present the new Israeli judgment. In the third section, I analyze the obiter dictum and the response offered in it to the legal dilemma. Thereafter I conclude by fleshing out the gist of my criticism on the Al-Masri obiter.   Read the rest of this entry…

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The Al-Werfalli Arrest Warrant: Denial of Fair Trial as an Additional Allegation and a Hint at a Possible Defence

Published on August 23, 2017        Author: 

Last week, the International Criminal Court (ICC) issued an arrest warrant in the Libya Situation against Mahmoud Al-Werfalli. The arrest warrant alleges that Al-Werfalli is criminally responsible for the war crime of Murder, in a non-international armed conflict, pursuant to Article 8(2)(c)(i) of the Rome Statute, in relation to the alleged summary execution of 33 persons. Based on the facts laid out in the arrest warrant, the ICC Office of the Prosecutor (OTP) could also have alleged that Al-Werfalli is criminally responsible for the war crime of “sentencing or executing without due process” (“denial of fair trial”) pursuant to Article 8(2)(c)(iv) of the Rome Statute. This choice would be novel in modern international criminal law practice. However, it has been done in other jurisdictions (See J. DePiazza, “Denial of Fair Trial as an International Crime — Precedent for Pleading and Proving it under the Rome Statute” 15 Journal of International Criminal Justice (2017)). Another interesting element of the arrest warrant is that it hints at a possible defence to any eventual charge of murder or denial of fair trial – mistake of fact.

According to the arrest warrant, Al-Werfalli is a Commander in the Al-Saiqa Brigade, an elite unit reported to comprise 5,000 soldiers. In May 2014, the Brigade joined “Operation Dignity”, with other armed elements, for the reported purpose of fighting terrorist groups in Benghazi. The operation continued until at least 18 March 2017. In this context, the arrest warrant alleges that, in seven separate incidents, 33 persons who were either civilians or persons hors de combat, were detained and then executed. It is alleged that they were either executed personally by Al-Werfalli or on his orders. The arrest warrant further alleges that “[t]here is no information in the evidence to show that they have been afforded a trial by a legitimate court, whether military or otherwise” (Arrest Warrant, para. 10). Read the rest of this entry…

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40th Anniversary of the Additional Protocols of 1977 of the Geneva Conventions of 1949

Published on June 8, 2017        Author: 

On 8 June 1977, at the invitation of Switzerland, plenipotentiaries of more than one hundred States gathered at the “Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts” to finalize and adopt Additional Protocols I and II (APs I and II) to the 1949 Geneva Conventions (GCs). Together with the GCs, APs I and II form the core of international humanitarian law.

Their adoption forty years ago marks a milestone in the regulation of armed conflicts. By developing and supplementing the GCs, AP I and II significantly improved the legal protection of victims of armed conflicts. A key achievement of the APs I and II was codifying and developing rules on the conduct of hostilities and those related to the protection of civilians from the effect of hostilities. In treaty law, these rules had remained untouched since the Hague Conventions of 1907. Another crucial enhancement lies in the extension of the protection granted under the GCs to all medical personnel, units and means of transport, whether civilian or military. Read the rest of this entry…

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EJIL Talk! Book Discussion: Djemila Carron’s Response

Published on June 2, 2017        Author: 

This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.

Introduction

I am grateful to the editors of EJIL: Talk! for organizing this discussion – the first one around a book in French! I also would like to warmly thank Professor Julia Grignon and Doctor Tristan Ferraro – whose articles, books and reflections were very important while writing L’acte déclencheur d’un conflit armé international – for their thoughtful comments on my work. In this contribution, I consider some of the questions they raise in each of their pieces, mainly on the capture of a soldier as a triggering act of an IAC (response to Julia Grignon) and on the classification of transnational armed conflict (response to Tristan Ferraro).

Animus belligerendi

I will not respond in detail to Julia Grignon’s development of my rejection of a criteria of animus belligerendi for the existence of an IAC (Part II, Question VI). She perfectly summed up my main arguments. The intent of a State to be in an IAC or in a state of war has no influence on the existence of an IAC. Once again, to exclude subjective elements from the definition of an IAC was one of the key reason for the shift in 1949 from the notion of war to the one of IAC. This said, as explained in the book, for such a conflict to take place, a State must nevertheless have the intent to use force against another one. I propose to defend this element through the objective requirements on the origin of an IAC (Part II, Question IV). In other words, if a State uses force against another one through its organs, acting in their capacity, following instructions and not mistakenly, the animus to use force is considered fulfilled. Read the rest of this entry…

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EJIL Talk! Book Discussion: The Act that Triggers an International Armed Conflict

Published on June 1, 2017        Author: 

This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.

While giving an interpretation of Article 2 common to the Geneva Conventions, in order to define the notion of international armed conflict, Djemila Carron touches upon a profusion of subsequent questions. This is one of the interests of this book. This is also what makes this present contribution challenging. Indeed, reading Djemila Carron’s reflection on the act that triggers an international armed conflict makes one, me at least, want to write a ten page contribution on each specific topic. And this is not only because of the proximity between the subject analyzed in her book and my own area of interest in research in international humanitarian law. In my view, in addition to the overall depth and quality of Djemila Carron’s rationale, there are two reasons that explain that feeling when reading her book. First, the prism through which she has decided to deliver the results of her research, that is an analysis under the Vienna Convention on the Law of Treaties, and second the choice that she has made to answer six (plus one) specific questions in order to reach her own conclusions. Not only does a rigorous interpretation that follows the methodology of the Vienna Convention offer a new perspective for the exercise of classification of conflicts, but it also gives a broad overview which is enriched, at the same time, with numerous and often thought-provoking details. In parallel, the structure of the work, built around specific questions, gives the opportunity to open a dialogue. An opportunity that I seize in the following lines.

In the present contribution I have arbitrarily, but purposely, chosen to focus on two of the many issues that the author explores in order to analyze the act triggering an international armed conflict, namely the capture as an act that may trigger an international armed conflict and the necessity, or not, of identifying an animus belligerendi in order to classify a situation as international armed conflict. Within the structure of the book, the first is a sub-question of Question II regarding the nature of the triggering act and the second is a Question in such, namely Question VI regarding the necessity of an animus belligerendi. This choice has been made on purpose, since these two topics are among those with which I have dealt in my own research, but through a different prism, that is the temporal scope of applicability of international humanitarian law. Read the rest of this entry…

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EJIL Talk! Book Discussion: Some Considerations on Intervention Against Non-state Actors in Foreign Territory

Published on May 31, 2017        Author: 

This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.

Dr. Djemila Carron has penned a significant book devoted to international armed conflicts. The great merit of Djemila Carron is to have exclusively focused on the notion of international armed conflict while nowadays most of the publications tend to examine mainly the concept of non-international armed conflict. In the recent years, legal literature has paid little attention to international armed conflicts. Dr. Carron rectifies this trend and brings back to the forefront of the legal discussion the notion of international armed conflict. This is all the more important as contemporary belligerency shows that, more and more, current situations are characterized by the intervention of third states, multinational forces or coalition of states in pre-existing armed conflicts. This inevitably raises questions about their characterization for the purposes of IHL.

Many issues covered by Djemila Carron’s book could have been the subject of legal discussions but within the framework of this brief post (which cannot do justice to the numerous legal issues raised in the book), I would like to focus on one particular aspect of the analysis conducted in this deep and thorough research: transnational armed conflicts against non-state armed groups and their potential classification as international armed conflicts.

To sum it up in a few sentences, Djemila Carron establishes first a presumption according to which the unconsented-to armed intervention of a state in the territory of another constitutes an international armed conflict but qualifies this presumption as rebuttable. She then argues that the presumption can be rebutted in three distinct circumstances, one of them being when resort to armed force by the intervening state is exclusively carried against a non-state organized armed group in the territory of another State. In such scenario, and in the absence of direct confrontation between the armed forces of the intervening State and those of the territorial State, the situation would only qualify as a non-international armed conflict according to Djemila Carron even when the territorial State has not consented to the third State’s military intervention. In this regard, Djemila Carron’s position echoes those recently put forward by Terry Gill, Kenneth Watkin and Sean Watts. Read the rest of this entry…

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