Wilfred Owen (18 March 1893 – 4 November 1918)
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?
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…
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).
No doubt there is much to be written about Jean-Pierre Bemba Gombo’s acquittal by the Appeals Chamber – on its implications for the ICC, for politics in the Democratic Republic of the Congo, and for the standard of review in future appeals. In this post, I will focus on a single issue addressed by the Appeals Chamber: the relevance of a commander’s motivation in taking measures to prevent or punish the crimes of his subordinates. This may seem a narrow issue – it was, initially, but one aspect of one element of the test for superior responsibility that formed part of one ground of appeal. However, this issue turned out to play a critical role in the majority’s decision to acquit the defendant.
A majority of the Appeals Chamber – Judges Van den Wyngaert, Eboe-Osuji and Morrison – held that the second ground of appeal and part of the third ground of appeal were determinative of the appeal. The second ground averred that the conviction exceeded the charges. The third ground averred that Mr Bemba was not liable as a superior, with the relevant part upheld concerning whether he took all necessary and reasonable measures to prevent or repress the commission of his subordinates’ crimes. Within this part, the majority’s decision emphasised, in particular, two putative errors in the Trial Chamber’s finding that Mr Bemba failed to take all necessary and reasonable measures (para 191). The first concerned the Trial Chamber’s assessment of Mr Bemba’s motivation in taking the measures that he did take. This is the issue addressed in this post. Read the rest of this entry…
Fiddling While Rome Burns? The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo
On March 21, 2016, after a 4-1/2 year-long trial that heard the testimony of 77 witnesses, the introduction of 773 items of evidence, and gave rise to a transcript that was thousands of pages long, a unanimous Trial Chamber convicted Jean-Pierre Bemba Gombo of crimes against humanity and war crimes committed by his troops in the Central African Republic from 2002-2003 and sentenced him to 18 years imprisonment. The case was the first to find a perpetrator guilty of command responsibility under article 28, and the first ICC case involving a conviction for sexual violence. The three trial judges, were unanimous in their assessment of Bemba’s culpability under the Statute, although two judges raised questions regarding the parameters of article 28.
On June 8, the Appeals Chamber reversed, 3-2, and acquitted the accused finding that Bemba’s conviction exceeded the facts and circumstances described in the charges brought against him and declined to permit a trial on the facts it found to be outside the scope of the initial Trial Chamber Judgment. Judges Monagang (Botswana) and Hofmański (Poland) would have upheld the conviction and penned a lengthy Dissenting Opinion. Judge Eboe-Osuji (now President of the Court) would have permitted a retrial on the new charges his colleagues found to be outside the scope of the original conviction, but was apparently unable to persuade his colleagues to join him in that view.
How did this happen? Read the rest of this entry…
Yesterday the international Joint Investigating Team (JIT) published its conclusion that the missile which destroyed the MH17 airliner over eastern Ukraine was fired by a Russian military unit, the 53rd Antiaircraft Missile Brigade. Here’s a summary of the evidence on which the conclusion was based:
Using satellite imagery and a photograph posted on social media, the JIT notes that Buk systems were located in a parking lot on the base of the 53rd brigade in Kursk. Using social-media videos, photographs published online, and geolocation techniques, the investigation concludes that six Buk systems were part of a larger military convoy that left the base on June 23, 2014.
Investigators then reconstructed the route, with the last available images of the convoy coming on June 25, 2014, about 25 kilometers from the Ukrainian border. The convoy includes a Buk missile launcher beginning with the number 3 — indicating it was from the 3rd battalion of the 53rd brigade. Bellingcat, using the same videos, previously assessed that the missile launcher in question was number 332. This is the system the JIT says was used to shoot down MH17.
The Buk launcher that shot down MH17 appeared in Ukraine in several photographs and videos on July 17 — the day of the tragedy — and the following day, according to investigators. Comparing images of that Buk system from the convoy originating from the Kursk base and those taken in Ukraine reveals seven “fingerprints” demonstrating that they show the same missile launcher, the JIT says. These identical “fingerprints” include a center-of-gravity marking, the same partially obscured number beginning with the numeral 3, and a wheel with no spokes in the same spot.
On the basis of the JIT’s conclusions, the Netherlands and Australia are now convinced that Russia is responsible for the deployment of the Buk installation that was used to down MH17. The government is now taking the next step by formally holding Russia accountable.’
State responsibility comes into play when states fail to uphold the provisions of international law. A state can then be held responsible for breaching one or more of those provisions. This is the legal avenue that the Netherlands and Australia have now chosen to pursue. Both countries hold Russia responsible for its part in the downing of flight MH17.
Holding a state responsible is a complex legal process, and there are several ways to do this. The Netherlands and Australia today asked Russia to enter into talks aimed at finding a solution that would do justice to the tremendous suffering and damage caused by the downing of MH17. A possible next step is to present the case to an international court or organisation for their judgment.
Obviously, regardless of the formal invocation of state responsibility, the Russian government is not going to suddenly change its story and admit that its armed forces shot down the MH17, whether acting ultra vires or not. When it comes to Russia’s domestic audience, the JIT’s findings will be easily discredited by the Kremlin’s propaganda machine – but we’ll see how they play out in any international litigation.
Now that the dust from the U.S.–U.K.–French operation against Syria has settled, I want to follow up on something I said when news of it first broke. Like most commentators, I argued that the operation did not satisfy the formal legal doctrine on the use of force. By this I meant that it was inconsistent with the longstanding interpretation of Article 2(4) of the UN Charter and not justifiable under any of the recognized exceptions. Yet I also contended that the doctrine was not the end of the legal inquiry. Given how the jus ad bellum actually operates, I argued, “the best answer to the question of whether the Syria strikes were lawful is not a simple ‘yes’ or ‘no.’”
Many international lawyers took issue with that claim, so I want to defend it—and use it to expose what I consider to be a fairly fundamental flaw in how the jus ad bellum is usually analyzed. To do this, I’ll take a detour through one of my all-time favorite law review articles: Hendrik Hartog’s Pigs and Positivism.
Pigs and Positivism
Hartog’s article is not about international law. It uses the 19th century practice of keeping pigs in New York City as a case study for thinking about law and legal analysis. Here is the background: pigs were once an ordinary and integral part of life in New York City. People ate the pigs, and the pigs ate the waste that lined city streets. But pigs were “mean, dangerous, and uncontrollable beasts” (p. 902). In 1819, after various efforts to legislate against them had failed, a court determined, in a case called People v. Harriett, that loose pigs in public streets were a public nuisance and, for that reason, prohibited. The decision established that “[t]o keep pigs on municipal streets was to commit a crime” (p. 920). Read the rest of this entry…
Bringing Psychological Civilian Harm to the Forefront: Incidental Civilian Fear as Trauma in the Case of Recurrent Attacks
Last month’s ballistic missiles’ barrage undertaken by the Yemen-based Houthi rebels against Saudi Arabia comes to be added to the almost 100 missiles that have been fired against the Kingdom since past November. With these missile attacks spreading fear (see also here the Jordanian condemnation of the attacks and the stress put on the terrorization of the civilians), they bring to the forefront the question of how recurrent attacks can impact on the affected civilians’ psychological health and whether such impact can have a legal significance for the legality of the undertaken force. The question of incidental civilian fear, namely the fear incurred to civilians absent any prior intentions from the attacker’s part, has been pertinent in the past in instances where aerial attacks have caused psychiatric disorders like PTSD to the affected civilians (see here for the trauma incurred to Israeli civilians as a result of the Gaza rocket attacks and here for the PTSD suffered due to the U.S. drones policy), but has not been addressed so far systematically by courts.
The importance of taking into account incidental civilian fear amounting to trauma as a legal consideration is highlighted by studies (see also here, here, here and here) which have shown how trauma symptoms emerging from exposure to warfare can persist long after hostilities end. These studies have also demonstrated how the more the attacks augment in number and frequency, the more likely it is for the affected civilians to be diagnosed with psychiatric disorders. Translated in the proportionality balance terms the laws of war endorse, this means that the more serious the incurred harm, the higher the chances for the attack to be unlawful.
At the same time, the emergence of trauma as a result of such attacks is not meant to serve as a veto but as a vetting parameter for the continuation of the operations. The idea is not for such trauma-related fear to be a ground altogether for the cessation of any military operations or for their ban. Rather such fear can constitute the basis for an operational adjustment to such a degree that temporary gaps between each attack or alterations in the operational mode (i.e. flight altitude or order of targeting pre-selected targets so that two targets in close vicinity are not targeted immediately one after the other) will lessen the attacks’ impact on the civilians’ psyche, permitting the latter to take respites and not leading to a situation where the trauma symptoms will be accumulated, evolving into a psychiatric disorder. Read the rest of this entry…
Calls have been mounting for Alexanda Kotey and El Shafee Elsheikh, two fighters captured by the Syrian Kurds, to be tried in the UK, the US, or at the International Criminal Court (ICC) in The Hague. Kotey and Elsheikh were part of a group of four Islamic State militants known as ‘the Beatles’ (because of their British accents). Although not particularly high ranking within ISIS, the Beatles are infamous for their role in the imprisonment, torture and killing of Western hostages. There is reason to believe that they are responsible for war crimes and crimes against humanity.
The purpose of this post is to examine the feasibility and propriety of bringing the Beatles before the ICC for trial. Kotey and Elsheikh have been stripped of their British citizenship so as to stop them from re-entering the UK. The UK defence minister, Tobias Ellwood, is however arguing that Kotey and Elsheikh should be tried by the ICC. Kotey himself affirmed that a trial at the ICC ‘would be the logical solution.’ As of now, the Syrian Kurds do not seem to have received a request for the surrender of the two fighters to the Court.
The Temporal Scope of the ICC’s Personal Jurisdiction Read the rest of this entry…
The Use of Nerve Agents in Salisbury: Why does it Matter Whether it Amounts to a Use of Force in International Law?
Over the past few days, there has been discussion of whether the attempt to murder Sergei Skripal and his daughter, in the UK, by the use of a nerve agent amounts to an unlawful use force by Russia in breach of Art. 2(4) of the United Nations Charter and customary international law (see posts by Marc Weller, Tom Ruys, and Ashley Deeks). There is agreement that if the action was attributable to Russia, it would amount to a breach of at least some obligation under international law. Marc Weller, points out that the act would amount to an unlawful intervention and a violation of the territorial sovereignty of the UK. Marko argues that these acts would also be a violation of the human rights of the individuals concerned. However, the British Prime Minister characterised the act as an unlawful use of force. What I wish to do in this post is to ask why this categorisation might matter in international law. What exactly are the implications, as a matter of law, of characterising the act as a use of force? This was an issue that was raised in the comments to Marc Weller’s post and some of the points I make below have already been made in that discussion though I expand on them. As discussed below, this characterisation might have far reaching implications in a number of areas of international law, extending beyond the possibility of self-defence, to the possibility of countermeasures, the law relating to state responsibility, the qualification of a situation in the law of armed conflict, and international criminal law. I accept that many of the points discussed below are not clear cut, and some are even contentious. However, I think that having a catalogue of the possible consequences of the arguments relating to the use of force helps us to see more clearly what is at stake when we make these arguments.