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Mistakes of Fact When Using Lethal Force in International Law: Part III

Published on January 15, 2020        Author: 

 

To briefly recapitulate our examination of mistake of fact when using lethal force in various sub-fields of international law: such a doctrine is, in its purely subjective form, black letter law in international criminal law. It is also established (even if not labelled as such) in international human rights law and (somewhat less clearly) in international humanitarian law. Both IHL and IHRL would however require the mistake to both honest and reasonable to be able to preclude liability. Both IHL and IHRL contain explicit precautionary and prophylactic rules whose role, in part, is to determine the bounds of reasonable and hence permissible error (e.g. with respect to target verification).

As we have seen, the mistake of fact question is most fraught in the jus ad bellum. That said, as a formal matter, even if one thought it to be desirable, it would be difficult to argue that a jus ad bellum-specific mistake of fact doctrine was customary law. I cannot think of any state but the US that has invoked such a doctrine, even implicitly. (Any such examples known to readers would be most welcome.) And when the doctrine was invoked, as with the Iran Air Flight 655, it certainly did not attract widespread acceptance by other states. There is enough ambiguity in state reactions to the downing of that aircraft, especially in the atmosphere of the Cold War, that one cannot categorically exclude that such a rule could exist. But it seems unlikely that it does. And if it does, it cannot be the purely subjective one from ICL, which would be even more inappropriate in the jus ad bellum context than in IHL and IHRL.

Bearing all this in mind, let us turn to the downing of Ukraine International Airlines Flight 752 over Tehran, which is as we have seen eerily reminiscent of the shooting down of Iran Air Flight 655 by the USS Vincennes. There are many parallels between the two incidents, not least that they both involve the same two states, if on different sides of the story, and that both cases raise questions of mistake of fact. What is very different is the wider context – the Cold War warped anything it touched. And I think it fair to say that the socializing effect of international law is somewhat greater today than it was then.

Thus, states like Ukraine and Canada have already used legal language vis-à-vis Iran. President Zelenskyy stated that:

Iran has pleaded guilty to crashing the Ukrainian plane. But we insist on a full admission of guilt. We expect from Iran assurances of their readiness for a full and open investigation, bringing those responsible to justice, the return of the bodies of the dead, the payment of compensation, official apologies through diplomatic channels.

Prime Minister Trudeau similarly stated that ‘Iran must take full responsibility’ for its actions.

And this is exactly what Iran should do. It shouldn’t just listen to these other states invoking its responsibility. It should listen to the voice of its own ambassador, when he was speaking in the Security Council chamber to reject the US self-defence justification for shooting down IR 655:

We believe that a responsible Government, under the present circumstances when it has caused the destruction of a civilian airliner and its 290 passengers, must urgently take three steps: It must apologize to the families of the victims and to the peoples and the Governments concerned ; it must accept full responsibility for the downing of the airliner and offer reparation on the basis of its legal and moral liability; and it must reassess and revise policies which led to the downing of the plane and the murder of its innocent passengers. (S/PV.2821, 6)

An equally intriguing parallel is that with McCann. Indeed, I would argue that it is precisely human rights law – largely absent from the discussions of the destruction of IR 655, aside from a single reference by (of all people) the ambassador of Syria – that is the body of law that best fits the downing of the Ukrainian airliner. The gravest violation of international law here is not that of the Chicago Convention, but that of the human right to life, the wrongfulness of which could, unlike with the Chicago Convention, never be precluded by jus ad bellum self-defence.

Just like the SAS soldiers in McCann, the Iranian air defence officers most likely honestly believed that they had to act to deflect a threat to human life. Just like in McCann, they were wrongly told that such a threat was certain – that US cruise missiles would be incoming. Just like in McCann, they had little time to deliberate. And just like in McCann, the violation of the right to life stems not directly from the soldiers’ decision to use lethal force, but from systemic background failures of higher Iranian authorities.

Had Iran closed its airspace for civilian traffic that evening, knowing full well that hostilities with the US might easily escalate, the plane would never have been shot down. Had Iran properly coordinated its air defences with civilian air traffic control, the plane would never have been shot down. Had Iran properly trained its forces at various levels, the plane would never have been shot down. Thus, even if Iran’s mistake of fact that resulted in the destruction of the aircraft was honest, it was not reasonable, and as such it would bear state responsibility for violating the victims’ human rights. And that violation is compounded by the initial attempts of Iranian authorities to obstruct the investigation and cover up the cause of the crash, from which they have thankfully desisted, but which nonetheless resulted in a violation of the positive obligation to effectively investigate unlawful deaths.

This is therefore how Iran should frame the reparations it provides – not as ex gratia charity payments, not (solely) as compensation due to states such as Ukraine or Canada, but as just satisfaction to those individuals whose rights it violated. In doing so, Iran should compensate its own nationals in the exact same way as it compensates foreigners, as equals in dignity. And it needs to provide sufficient assurances to the international community that a mistake such as this one, honest though it may have been, will never be repeated.

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Mistakes of Fact When Using Lethal Force in International Law: Part II

Published on January 15, 2020        Author: 

 

If a state believes that it is the target of an ongoing or imminent armed attack and uses force to repel that attack, but it later turns out that it was mistaken and that there either was no such attack or that there was no necessity to respond to it, is that use of force in putative self-defence ipso facto a violation of Article 2(4) of the Charter? Or would the state’s mistake excuse it?

There are three possible options in answering this question:

  • An honest mistake of fact would excuse the state, as in ICL;
  • An honest and reasonable mistake would excuse the state, as in IHL and IHRL;
  • No mistake, however honest and reasonable, would excuse the state – it violated the prohibition on the use of force, and would have to provide reparation for any injury caused.

Any one of these options is plausible in principle. In particular, I do not think that the text of Article 51 of the Charter is entirely dispositive of the issue.

It’s true that Article 51 permits self-defence ‘if an armed attack occurs/ dans le cas où un Membre des Nations Unies est l’objet d’une agression armée’ and that one could therefore say that the existence of an armed attack is an objective fact and a necessary predicate for any self-defence claim. But we routinely do far greater violence to far clearer texts than it would take to incorporate a mistake of fact doctrine into the law of self-defence. The big question is whether we should, not whether we could.

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Mistakes of Fact When Using Lethal Force in International Law: Part I

Published on January 14, 2020        Author: 

 

The tragic shooting down of the Ukrainian airliner over Tehran last week, which Iran has admitted to after several days of denial, has led me to think about a set of issues that was already on my mind when we were discussing the legality of the US strike on Soleimani. How exactly does international law deal with situations in which state agents use lethal force and do so under the influence of a mistake or error of fact? For example, when an Iranian air defence officer shoots down a civilian airplane thinking that he was shooting down an American cruise missile; or, when a state uses force against another state thinking, on the basis of imperfect intelligence information, that is the victim of an ongoing or imminent armed attack, and it later turns out that there was no such attack. Does international law provided reasonably consistent, coherent and fair rules to address such situations? To what extent can we generalize about such rules, and to what extent are they fragmented and context-specific?

Domestic legal systems have long dealt with such issues. Perhaps the most common such scenario – in some countries all too common – is the use of lethal force by the police against a person whom the officer concerned mistakenly believed was posing a threat to others, but who in fact posed no such threat.

Most domestic systems that I am familiar with have mistake of fact rules or doctrines in their criminal laws. Such rules, whether grounded in statute or in case law, often distinguish between honest mistakes, based purely on the subjective belief of the person using force, and reasonable mistakes, assessed on the basis of some kind of objective standard of behaviour. In most domestic systems mistake of fact can preclude criminal liability in some circumstances, and mitigate punishment in others. But municipal laws are rarely as clear with regard to civil, delictual responsibility in tort, which is the closer analogue to state responsibility in international law.

I can’t claim to have done genuinely comprehensive research on this topic, but it seems to me that there is a significant gap here in the international legal literature. How exactly do we handle mistakes of fact in the various different sub-fields of international law, especially when the mistake involves uses of lethal force? And are we content that whatever solutions we have come up with are the right ones?

This three-part series of posts is not even an attempt at filling this gap – think of it more as a conversation starter. I would be most grateful to readers for additional examples in the comments or for any other thoughts they might have. In this first post, I will briefly examine how mistakes of fact in using lethal force are addressed in international criminal law, international humanitarian law, and international human rights law. My second post will look at mistakes of fact in self-defence under the law on the use of force (jus ad bellum), examining as a case study the 1988 downing of Iran Air Flight 655 by the USS Vincennes. The third and final post will then offer some conclusions and some tentative thoughts on the downing of Ukraine International Airlines Flight 752 over Tehran.

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Iran Unlawfully Retaliates Against the United States, Violating Iraqi Sovereignty in the Process

Published on January 8, 2020        Author: 

 

Today Iran launched a number of ballistic missiles against two US military bases in Iraq, in response to the US strike on Soleimani last week. As of now it is unclear whether the missiles caused any American or Iraqi casualties. Donald Trump will address the public in this regard in the morning today US time.

Hopefully there will be no further escalation of hostilities after this Iranian missile strike. It is crystal clear, however, that the strike was unlawful. It breached the prohibition on the use of force in Article 2(4) of the UN Charter with respect to both the United States and Iraq. It did so because of its purely retaliatory nature.

The Iranian Foreign Minister, Javad Zarif, gave Iran’s public justification for the strike on Twitter:

Note his explicit reliance on self-defence per Article 51 of the Charter, the reference to proportionality, and to Iran having concluded its defensive action. Clearly this is meant to say that Iran intends to take no further action (at least not openly) if the US for its part refrains from further hostilities. Again, let’s hope that such de-escalation actually happens. That said, however carefully framed, Zarif’s invocation of self-defence is still incapable of legally justifying Iran’s actions.

Let’s assume that the US strike on Soleimani was an unlawful use of force against Iran, as I argued that it most likely was. Let’s assume further that it was also an armed attack in the sense of Article 51 of the Charter (i.e. under the majority view, including that of the ICJ, a more serious and grave form of unlawful force), which would in principle entitle Iran to take measures in self-defence. Let’s also assume that the killing of Soleimani was in fact executed from the two US bases that Iran has now struck. Even if all of this is true, the basic problem for Iran is that the US strike on Soleimani was completed. Because that attack was over, there could be no necessity to act to repel it. It is only if Iran could argue on the facts that it anticipated future imminent attacks by the US that it could plausibly have a claim to self-defence, and Zarif mentioned no such attacks.

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Time to fix the Rome Statute and add the crime of starvation in non-international armed conflicts!

Published on December 3, 2019        Author: 

This week the Assembly of State Parties to the Rome Statute of the International Criminal Court (ASP) meets in The Hague for its 18th session. On the agenda is the Swiss proposal to amend Article 8 (“War crimes”) of the Rome Statute by adding a non-international armed conflict version of the war crime of starvation of civilians as a method of warfare. The present post discusses the Swiss proposal and explains why it is high time to amend the Rome Statute as per the Swiss proposal, and that in fact the drafting history of the Statute shows that the omission to include this crime into Article 8(2)(e) was accidental, making it even more important to now fix this mistake.

In 1998, the States negotiating the Rome Statute included the war crime of “[i]ntentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions” in Article 8(2)(c), a paragraph that lists “serious violations of the laws and customs applicable in international armed conflict”, “[o]ther” than the grave breaches of the 1949 Geneva Conventions included in the first paragraph, which also concern international armed conflict (IAC). As readers will know, the question whether the Rome Statute should include war crimes committed in times of non-international armed conflict (NIAC) was hotly debated by the delegates in Rome. Fortunately, with the ICTY’s case law and the scope of the ICTR Statute having paved the way, the States reached consensus to include NIAC war crimes. Violations of Common Article 3 to the 1949 Geneva Conventions were listed in Article 8(2)(c), and a large number of the ‘other serious violations of the laws and customs applicable in times of international armed conflict’, listed in Article 8(2)(b) of the ICC Statute, were reproduced in Article 8(2)(e), which relates to NIAC. However, among the crimes that were not reproduced was the war crime of starvation and impeding humanitarian access.

The failure to do so has been criticised for good reason (e.g., Werle, Kress, and more recently, Bartels, and D’Alessandra and Gillett). In addition to the war crimes related to prohibited weapons (addressed below), the only other violations not included for NIAC are the conduct of hostilities crimes Article 8(2)(c)(ii), intentionally directing attacks at civilian objects, Article 8(2)(b)(iv), the crime of causing excessive collateral damage, and Articles 8(2)(viii), (xiv), and (xv). The last three provisions deal with occupation and “nationals of the hostile party”, and therefore obviously do not have a NIAC equivalent. The Additional Protocol I general prohibition to attack civilian objects and the prohibition to launch attacks that may be expected to cause incidental damage that would be excessive in relation to the concrete and direct military advantage anticipated, which both apply during IACs, do not appear in Additional Protocol II relating to NIACs. As a result, it was hard in 1998 for the proponents of a more extensive set of NIAC crimes to argue that these prohibitions constituted customary IHL also in time of NIAC, and no NIAC versions of these war crimes were included in Article 8 (see Bartels, pp 292-293). However, the foregoing makes the omission of a NIAC crime of starvation all the more puzzling, because Additional Protocol II does explicitly prohibit the starvation of the civilian population.

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Mandatory Derogation from Human Rights in Overseas Armed Conflicts? A Response to the Policy Exchange Proposals

Published on November 27, 2019        Author: 

 

 

A recent paper published by Policy Exchange, Resisting the Judicialisation of War, sets out a range of policy and legislative proposals for the incoming UK government. In this blog post, I raise concerns over three recommendations in the paper.

Contextualising the proposals

In the background to the Policy Exchange paper is the Ministry of Defence (MOD)’s 2016 announcement of a “presumption to derogate” from the European Convention on Human Rights (ECHR), particularly in “future overseas operations”. Derogation is the mechanism built into the ECHR to provide flexibility in times of war or emergency. It enables States to modulate the scope of Convention obligations and take measures consistent with the Law of Armed Conflict (if applicable).

The MOD’s 2016 press release asserted that litigation followed military operations in Iraq and Afghanistan on “an industrial scale”, and that derogation would protect troops from persistent “vexatious claims”. Previous Policy Exchange reports, Fog of Law (2013), Clearing the Fog of Law (2015) and Protecting Those Who Serve (2019), placed the blame for such claims squarely on judicial decisions applying the ECHR to extraterritorial armed conflicts, including Al-Skeini v UK (2011) 53 EHRR 18 and Smith v MOD [2013] UKSC 41.

This resulted in what Policy Exchange calls the ‘judicialisation’ of war. The application of the ECHR to military operations is alleged to hinder commanders by generating risk aversion, leading to the hyperbolic claim that the military risks “defeat by judicial diktat”. The recent paper is the latest instalment in Policy Exchange’s coordinated efforts to sway UK policy in this area.

Derogation is the proposed workaround. Read the rest of this entry…

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R v TRA: Article 1 of the Convention Against Torture and the Public Official Requirement

Published on November 20, 2019        Author: 

 

Last week’s decision of the UK Supreme Court in the R v TRA (Appellant) case provides an important confirmation that armed group members can be prosecuted under s134 of the Criminal Justice Act 1988. The decision should be welcomed for providing authoritative guidance on how Article 1 of the UN Convention against Torture should be interpreted, when applied to prosecutions at national level.   Specifically, the judgment addresses the interpretation of the phrase ‘public official or other person acting in an official capacity’, finding that the words ‘other person acting in an official capacity’ can be interpreted to include members of armed groups which exercise governmental control over civilian population in a territory over which they control. It distinguishes these kinds of groups from armed groups whose activities are ‘purely military’. This judgment is to be welcomed as it confirms that members of non-State armed groups can be prosecuted for acts amounting to torture. It is also to be welcomed because the interpretation of Article 1 has long been discussed in academic writings (see Gaeta, Clapham & Gaeta, Fortin, Rodenhauser), and partly pertains to the larger question of when and whether armed non State actors are bound by human rights obligations.

It seems that the majority was mainly persuaded by (i) the ordinary meaning of Article 1 and (ii) the purpose of the Convention to establish a regime for international regulation of ‘official torture’, as opposed to private acts of individuals. According to the court, torture perpetrated on behalf of a de facto governmental authority is clearly a matter of proper concern to the international community and within the rationale of the Convention’s regime. The arguments that lead the Court to this conclusion are too detailed and varied to review in their entirety, but I want to address the following three aspects of the judgment: (i) the Supreme Court’s handling of the ordinary meaning of Article 1 (ii) its interpretation of the practice of the Committee Against Torture and (iii) the consequences of the judgment on the relationship between IHL and IHRL.

Ordinary Meaning of Article 1

In several different places in the judgment, the Court made clear that it was not convinced by the appellant’s argument that only persons acting for or on behalf of a State can perpetrate torture. Read the rest of this entry…

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Turkey, Aggression, and the Right to Life Under the ECHR: A Reaction to Professor Haque’s Post

Published on October 22, 2019        Author: 

Professor Haque yesterday published a thought-provoking piece on this blog arguing that the Turkish incursion against Kurdish forces in Syria, beyond being a violation of the UN Charter, also amounts to a violation of the right to life under the ECHR. His reasoning, which is sound, is based on the Human Rights Committee’s rather controversial new General Comment 36 on the right to life under the ICCPR, where the Committee concludes that States Parties to the Covenant engaging in acts of aggression resulting in deaths violate ipso facto Article 6 (for its part, the HCRttee itself draws on the opinion of academics such as William Schabas who originally developed the argument).

I do not disagree with Professor Haque’s logic, which is, like that of the HRCttee, internally sound. However, I disagree with the exceptionalism which often seems to characterize attempts to include jus ad bellum in the lawfulness test for arbitrary deprivation of life– and, respectfully, Professor Haque’s piece suffers from that same exceptionalism.

The classical view of permissible violence in armed conflicts, based on the long-standing distinction between jus in bello and jus ad bellum, is actually a coherent and credible legal position – one that has the additional advantage of being the mainstream interpretation. It is entirely plausible to maintain that the UN Charter does not mix very well with human rights or humanitarian law instruments. The whole structure of IHL has been built on the premise of its separation from the lawfulness of resorting to force, and the ICRC itself continues to strongly defend this position.

But the emerging understanding of the right to life in light of jus ad bellum is also a coherent, well-structured and convincing interpretation of treaty law, from the point of view of human rights law taken in relative isolation. The fact that this interpretation has also been authoritatively endorsed by a treaty body gives it an aura of credibility that few “progressive” interpretations raised in doctrine can usually aspire to. But the mere fact that a particular interpretation of treaty law makes sense does not mean that it should actually be made.

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Turkey, Aggression, and the Right to Life Under the ECHR

Published on October 21, 2019        Author: 

Turkey’s latest invasion of Syria violates the prohibition of interstate armed force. It cannot be justified by Turkey’s right of self-defense (see here and here). What follows? Among other things, each and every person killed by Turkish forces and agents is killed in violation of her human right to life. Every civilian killed in violation of international humanitarian law. Every combatant or fighter killed without violation of international humanitarian law. Everyone. Let me explain.

The International Covenant on Civil and Political Rights provides that “No one shall be arbitrarily deprived of his life.” According to the Human Rights Committee’s General Comment No. 36 on the right to life, “[d]eprivation of life is, as a rule, arbitrary if it is inconsistent with international law.” It follows that “States parties [to the Covenant] engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant.” This much is well known.

The European Convention on Human Rights provides that “[n]o one shall be deprived of his life intentionally” except in cases of capital punishment or when absolutely necessary to defend a person from unlawful violence; to effect a lawful arrest or prevent the escape of a person lawfully detained; or to quell a riot or insurrection. It follows that States parties to the Convention engaged in acts of aggression as defined in international law, resulting in intentional deprivation of life, violate ipso facto article 2 of the Convention. I am told this is less well known. Read the rest of this entry…

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The Human Cost of Using Informers in Conflict and the Ambivalence of International Law

Published on October 17, 2019        Author: 

In early October, the Guardian reported that former members of the IRA and British Army commanders may face criminal charges arising from serious offences connected with the use of informers for the purpose of gathering intelligence during the conflict in Northern Ireland. As part of the police inquiry ‘Operation Kenova’, files have been sent to the Public Prosecution Service in Belfast providing evidence of crimes of “murder, kidnap, torture, malfeasance in a public office and perverting the course of justice” associated with the activities of alleged former head of internal security for the IRA and British army agent Freddie Scappaticci.

Scappaticci is said to be linked directly to some 18 murders of IRA members accused of being informers. The families of a number of those killed have made formal complaints to the Police Ombudsman of Northern Ireland claiming that his military intelligence handlers failed to prevent those killings. Even more than the trial of “Soldier F” for two murders arising from Bloody Sunday in 1972, such proceedings could shine an uncomfortable light on how the dirty war was waged by state authorities in Northern Ireland. It also prompts the question of how law addresses the practice of using informers during conflict. 

The use of informers within non-state armed groups by British military, police and security forces was a common practice during the conflict in Northern Ireland. It is estimated that the IRA executed around 85 individuals accused of being informers during the course of the Troubles. Such practices are not unprecedented, as the recruitment and deployment of informers has been a perennial feature of armed conflicts, not to mention the frequently brutal treatment that has usually been meted out to such collaborators. As has been the case with the Scappaticci affair, authorities have at times gone to great lengths to secure and retain the services of high-level informers, including by tolerating or acquiescing in their involvement in criminal activities.

In terms of the law applicable to the use of informers, very often there has been limited or no national legislation governing the use of so-called covert human intelligence sources. The Chief Constable of the Police Service of Northern Ireland George Hamilton has acknowledged that in the context of the Troubles, “[t]here were no rules. There was no regulatory framework for handling of informants at that time”. Given the regularity of the practice during situations of armed conflict, it is appropriate to consider how applicable international law might be addressed to the deployment of informers, as well as its consequences.

On its face, international law applicable to armed conflict, including both international humanitarian law and international human rights law, has little to say about the use of informers. Read the rest of this entry…

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