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Home Archive for category "Armed Conflict"

The Netherlands and Australia Attribute the Downing of MH17 to Russia

Published on May 25, 2018        Author: 
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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.

Today the Dutch and Australian governments formally attributed the missile strike to Russia, invoking its responsibility for an internationally wrongful act:

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.

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Pigs, Positivism, and the Jus ad Bellum

Published on April 27, 2018        Author: 
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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…

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Bringing Psychological Civilian Harm to the Forefront: Incidental Civilian Fear as Trauma in the Case of Recurrent Attacks

Published on April 25, 2018        Author: 
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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…

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Prosecuting ‘The Beatles’ before the ICC: A Gateway for the Opening of an Investigation in Syria?

Published on April 19, 2018        Author: 
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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…

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The Use of Nerve Agents in Salisbury: Why does it Matter Whether it Amounts to a Use of Force in International Law?

Published on March 17, 2018        Author: 
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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.  

Read the rest of this entry…

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Active Hostilities and International Law Limits to Trump’s Executive Order on Guantanamo

Published on March 13, 2018        Author:  and
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In his State of the Union speech on January 30, 2018, U.S. President Donald Trump announced his signing of a new executive order aimed at keeping open the U.S. detention facility at Guantanamo Bay, Cuba, as well as approving its repopulation. This post considers how the law of war governing detention in armed conflicts constricts the ability of the U.S. to hold persons in military prisons at Guantanamo in the manner suggested by this new order.

Formally speaking, Trump’s executive order repeals a critical portion of President Obama’s 2009 order calling for the Guantanamo prison site to be closed “as soon as practicable, and no later than 1 year from the date of this order.” The 2018 order also provides that the U.S. may “transport additional detainees” to the facility “when lawful and necessary to protect the nation.”

On the one hand, this executive order simply makes explicit what has already been President Trump’s de facto Guantanamo policy since taking office. While the Obama Administration worked to reduce the Guantanamo population considerably, resettling 197 of the 242 detainees remaining at the facility, President Trump has resettled none — not even five detainees cleared for release by the Department of Defense prior to Trump’s taking office. On the other hand, the order reflects a radical shift in policy. Read the rest of this entry…

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Turkey’s Military Operations in Syria

Published on February 20, 2018        Author: 
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Turkish Armed Forces (TAF) carried out ‘Operation Euphrates Shield’ for 216 days from August 2016 to March 2017 in the triangle between Azaz, Jarablus and al-Bab in northern Syria. Thanks to this military operation, Turkey cleared Daesh from the region and halted the risk of the PYD/YPG exercising control of the Syrian side of the shared 911km border by wedging itself between two PYD/YPG controlled areas. In addition, some displaced Syrians voluntarily returned to this region from Turkey, which currently hosts around 3.5 million Syrian refugees — more than any other country.

In line with this previous operation, the TAF launched ‘Operation Olive Branch’ on 20 January 2018 in Afrin, which has been controlled by the YPG. In its letter to the UN Security Council (UN Doc. S/2018/53), Turkey justified this operation on the basis of self-defence and various Security Council resolutions calling on Member States to fight terrorism. 

Since the indicated UN Security Council resolutions do not explicitly authorize the cross-border use of force, Turkey’s reliance on it as a justification of its extraterritorial military operation is unacceptable in international law. As far as I see in legal discussions, there is no dispute over this. However, the question of whether Operation Olive Branch can be justified on the basis of self-defence has brought with it some controversy.

Armed attack

According to both Article 51 of the UN Charter and related customary international law, occurrence of an ‘armed attack’ is required for the activation of the inherent right of self-defence. The ICJ identified ‘scale and effects’ as the criteria that ‘distinguish the most grave forms of the use force (those constituting an armed attack) from other less grave forms,’ but has not specified indicators of these criteria (Nicaragua judgment, 1986, para. 191). It should be noted that the scale and effects criteria have nothing to do with numbers. Rather, it is a legal assessment depending on facts and circumstances at hand. Read the rest of this entry…

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The Role of the ICC in Protecting the Rights of Children Born of Rape in War

Published on February 12, 2018        Author: 
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The trial at the International Criminal Court (ICC) of Dominic Ongwen, commander of the Lord’s Resistance Army (LRA), has attracted widespread legal and political debate.  Much of the commentary has focused on the former child soldier’s status as a victim-perpetrator. Missing from mainstream legal discourse is consideration of another status Ongwen holds as a result of his alleged crimes: fatherhood.  Relatedly, and more importantly, also overlooked is a group of victims of his crimes: children born as a result of rape.  Within the LRA “forced marriage” system, thousands of children were born from the rape of girls held in captivity.

Drawing primarily upon the Ongwen case and the crime of forced pregnancy, this post considers the ICC’s role in recognising the rights of children born of rape and repairing harms against them, consistent with their right to reparation under international law.  Stigmatisation within “post-conflict” communities is a key harm suffered by children born of rape, often driven by their perceived association with perpetrator fathers.  The ICC’s capacity to redress or, inadvertently, exacerbate stigma against this group of victims requires attention. Read the rest of this entry…

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Hybrid Threats and the United States National Security Strategy: Prevailing in an “Arena of Continuous Competition”

Published on January 19, 2018        Author:  and
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The dividing line between war and peace is blurred. This is one of the messages emerging from the National Security Strategy (NSS) of the United States of America adopted in December 2017. The United States is accustomed to viewing the world through the binary lens of war and peace, yet in reality, warns the new National Security Strategy, international relations is an “arena of continuous competition” (p. 28).

This is not exactly a new theme. The idea that war and peace are relative points on a continuous spectrum of confrontation, rather than mutually exclusive conditions, has become quite popular in recent years. Writing in 2013, General Valery Gerasimov, Chief of the General Staff of the Russian Federation, observed that the 21st century has seen a tendency “toward blurring the lines between the states of war and peace”. Speaking in 2015, Sir Michael Fallon, the former British Secretary of State for Defence, declared that contemporary adversaries are deliberately seeking to “blur the lines between what is, and what is not, considered an act of war”. More recently, Jens Stoltenberg, NATO’s Secretary General, suggested that in the past “it was easy to distinguish whether it was peace or war … [b]ut now there’s a much more blurred line”.

The fluidity of war and peace is central to the vocabulary of “gray zone conflict” and “hybrid warfare”. Both concepts are preoccupied with the strategic challenges that adversaries operating across multiple domains present. The notion of gray zone conflict puts the emphasis on the sphere of confrontation, concentrating on the fact that adversaries operate in the area of ambiguity that lies between the traditional state of war and state of peace (see US SOCOM, The Gray Zone). By contrast, the notion of hybrid warfare emphasises the modus operandi adopted by certain adversaries and competitors, focusing on their use of the full range of military and non-military means in a highly integrated manner (see NATO, Wales Summit Declaration, para. 13). Read the rest of this entry…

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Freeing up the Rules on The Treatment of Detainees from the Debate on the Geographical Scope of International Humanitarian Law

Published on January 3, 2018        Author: 
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A few weeks ago, my great friend Elvina Pothelet analysed, on this blog, the decision of the International Criminal Court (ICC) Prosecutor’s to request authorization to investigate, inter alia, acts of ill-treatment of detainees allegedly committed since 2002 by the CIA in black sites in Poland, Romania and Lithuania, in connection with the armed conflict occurring in Afghanistan. Elvina affirmed that there may be an added value in qualifying these alleged behaviours as war crimes, but she also hinted that such qualification might support the idea that International Humanitarian Law (IHL) applies globally, even outside the borders of the States where active hostilities take place. In this post I will argue that a wide geographical scope of application of the IHL rules on the treatment of detainees — especially those contained in common Article 3 to the Geneva Conventions and reflected in customary international law — does not necessarily imply an equally wide applicability of the rules on the conduct of hostilities.

To put my intervention in context, I should recall the obvious: a war crime presupposes a serious violation of an IHL rule. And for a rule of IHL to be applicable, there must be a sufficient link of correlation (so-called ‘nexus’) between the behaviour in question and an armed conflict (see ICTY AC, Kunarac, § 57 ff., referring to acts that are ‘closely related to the armed conflict’; see also Cassese). Although these sources refer to international criminal law (ICL), they build on the principle that IHL only applies to conducts and events which are sufficiently related to an armed conflict, as recognized e.g. in the ICRC Introduction to IHL, at pp. 28 and 59 (see also Practitioners’ Guide to Human Rights Law (HRL) in Armed Conflict, § 4.23). When such behaviour occurs outside the theatre of hostilities — e.g. where acts of torture were allegedly perpetrated in Poland/Romania/Lithuania, but the supposedly related hostilities took place in Afghanistan — one should ask whether such ‘sufficient nexus’ exists and, additionally, whether are there any geographical limitations to its establishment. In other words, is IHL applicable to conduct or an event as soon as it is sufficiently connected to an armed conflict, regardless of the territory where it took place (as contended, e.g., by Lubell-Derejko)? Or should the applicability of IHL be limited only to behaviour occurring in the area where active hostilities are being fought, or in the territory of a State party to the conflict (as deemed preferable by the ICRC in its 2015 report, at p. 15)?

Like ‘global battlefield’ theorists, I am convinced that geographical considerations per se do not necessarily limit the applicability of IHL. But, as also accepted by Lubell and Derejko, I believe that they are a fundamental factor to be taken into account when assessing the existence of the necessary nexus between an event under scrutiny and an armed conflict. Geographical distance from the actual conflict may be an indication that the relevant conduct or event is sufficiently ‘closely related to the hostilities’. And that is where I think the difference between the rules on the treatment of detainees and other IHL rules (especially those on the conduct of hostilities) lies. Read the rest of this entry…

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