magnify
Home Archive for category "Armed Conflict" (Page 2)

France Speaks Out on IHL and Cyber Operations: Part II

Published on October 1, 2019        Author: 

In the first part of this post I discussed the position paper’s articulation of the views of France on the applicability of IHL to cyber operations, on the classification of armed conflicts, and on their geographical scope in the cyber context. In this part I will examine the position paper’s views on the concept of “attack,” on the conduct of hostilities and on data as an object.

The Meaning of the Term “Attack”

The issue of the meaning of the term “attack” has occupied center stage from the very inception of legal thinking about cyber operations during an armed conflict. It is a critical one because most key IHL “conduct of hostilities” rules are framed in terms of attacks – it is prohibited to direct “attacks” against civilians or civilian objects (distinction), an “attack” expected to cause collateral damage that is excessive to the anticipated military advantage is prohibited (proportionality), parties must take precautions in “attack” to minimize harm to civilians (precautions in attack), etc.  These prohibitions, limitations, and requirements beg the question of when a cyber operation qualifies as an “attack” such that the rules govern it.

Read the rest of this entry…

Print Friendly, PDF & Email
 

France Speaks Out on IHL and Cyber Operations: Part I

Published on September 30, 2019        Author: 

The French Ministry of the Armies (formerly the Ministry of Defense) has recently released Droit International Appliqué aux Opérations dans le Cyberspace (International Law Applicable to Operations in Cyberspace), the most comprehensive statement on the applicability of international law (IHL) to cyber operations by any State to date.  The position paper dealt definitively with many of the current unsettled issues at the forefront of governmental and scholarly discussions.

This two-part post builds on an earlier post at Just Security in which I examined the position paper’s treatment of the relationship between peacetime international law, including that set forth in the UN Charter regarding uses of force, and hostile cyber operations. The focus here, by contrast, is on France’s views as to how IHL applies in the cyber context. Key topics addressed in the paper include the applicability of IHL in cyberspace; classification and geography of cyber conflict; the meaning of the term “attack” in the cyber context; the legal nature of data during an armed conflict; and other significant IHL prohibitions, limitations, and requirements on cyber operations.

Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on France Speaks Out on IHL and Cyber Operations: Part I

Was there the Third World in Geneva in 1949?

Published on September 26, 2019        Author: 

This year marks the 70th anniversary of the four Geneva Conventions of 1949. The importance that has been attached to the four Geneva Conventions (GCs) in the last seven decades is discernible from their universal acceptance. Since their adoption hardly there has been an armed conflict situation where the discussions have not involved the issues related to the Geneva Conventions. Development of the law of armed conflicts did not stop with the adoption of the GCs as later on Additional Protocols of 1977 (AP I and AP II), and 2005 (AP III) were adopted. Despite the fairly comprehensive nature of the GCs, the Additional Protocols were found to be necessary. One of the important reasons for the adoption of the APs, particularly AP I and AP II, was the coming into existence of the newly independent third world States and the need for accommodating their concerns. It is true that newly independent third world States were more in number in 1977 and made a significant difference to the APs, like the recognition of national liberation movements as international armed conflicts in AP I. It is also true that there were not many States from the third world at the time of negotiations on GCs. However, a plain assertion of these facts ignores a critical and historically contingent role of the third world States who participated in the negotiations on GCs in 1949.

Historical accounts of the GCs often state that the GCs were largely negotiated by the European States as less number of States participated from the third world (Giovanni Mantilla, The Origins and Evolution of the 1949 Geneva Conventions and the 1977 Additional Protocols, p. 39). This situation is often compared with the AP I and AP II negotiations in the 1970s where there was more number of newly independent third world States, and therefore their influence was manifest on the outcome of the diplomatic conference. This narrative presents the absence of the third world States as an important reason for the prominent role gained by the European States in 1949. This narrative further demonstrates that the presence of more number of third world States in 1977 made a significant impact on AP I and AP II, like in the form of inclusion of national liberation movements and the modification of combatant status. This plain equivalence, while attempting to present the apparent facts, tends to ignore the unsuccessful attempts of the third world States in bringing to the fore their concerns during the negotiation process in 1949. Problematized from a third world perspective, this equivalence also has the potential to present the ideological divide between the third world and the first world as a question of mere presence and absence and formal participation.

Hence, while assuming that the number of States that participated from the third world was less, however, their participation and interventions during the negotiations convey emerging solidarity among the third world States(though African, Asian and Latin American States constituted almost half of the 59 participating States at the diplomatic conference). Their interventions provided a critique of the developed or the first world on several issues and underlined the similarities between the third world States. This pointed towards emerging third world solidarity which was carried forward to the later years and decades at the multilateral fora. This emerging dualism of first world critique and third world solidarity in the international law making process was evidently witnessed on some of the crucial issues of the Geneva Conventions. Two issues are analyzed here to substantiate the above arguments: These are common article 3 and the red cross emblem. Read the rest of this entry…

Print Friendly, PDF & Email
 

Compliance with IHL by Non-State Armed Groups: Some Practical Reflections at the 70th Anniversary of the 1949 Geneva Conventions

Published on August 21, 2019        Author: 

That non-State armed groups (NSAGs) engage in hostilities on a frequent basis is not news. Indeed, NSAGs are active in the majority of contemporary armed conflicts (at 19). What seems to have changed in the last few years is the increasing attention that the international community is paying to their behavior, largely due to the impact that they have on civilians. While it is undisputed that international humanitarian law (IHL) binds NSAGs (para 505), finding effective strategies to enhance their level of compliance remains challenging, especially considering that the baseline expectation is generally low (at 69).

Interestingly, while some NSAGs have been responsible for IHL violations, others have also shown a degree of compliance for certain rules during non-international armed conflicts (NIACs). As this year marks the 70th anniversary of the four Geneva Conventions of 1949, some reflections related to how parties to armed conflicts – in this case, NSAGs – actually behave are in order.

Describing NSAGs’ Variations

Generally, compliance has been defined as “behavioral conformity with existing norms and regulations” (at 65). For NSAGs, this implies the observed match between their behavior and their international obligations.

As parties to armed conflicts, NSAGs should not be seen as entities that either violate or respect international law without exception. Instead, they may follow certain rules while disregarding others. For instance, a NSAG may respect the prohibition of using and recruiting children in hostilities, but may summarily execute detainees or take hostages. Similarly, a group may deliberately attack health care facilities and transports in breach of IHL, while prohibiting the forcible displacement of civilians. At the same time, these non-State entities often modify their behaviors throughout the hostilities, reflecting and increase or decrease in their level of compliance with humanitarian norms. Wood has identified that civilian victimization is “anticipated during moments in which the viability of the groups is threatened or when it faces significant military setbacks” (at 15). Variation is particularly evident during peace processes (here, for an example). When a NSAG looks for political recognition, it might adopt a different attitude than a group whose main purpose is to show its strength or to terrorize the civilian population living in the territory it controls.

Accordingly, compliance with IHL should be conceived as a spectrum, rather than an on/off switch. Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on Compliance with IHL by Non-State Armed Groups: Some Practical Reflections at the 70th Anniversary of the 1949 Geneva Conventions

Hospital Bombings: Empirical and Theoretical Fallacies of Those Rejecting a Ban

Published on August 16, 2019        Author:  and

The argument we advance in our recent EJIL Article, ‘‘Hospital Shields’ and the Limits of International Law’, emerged from analysis of empirical data showing how, during the past several years, hospitals were being bombed on a daily basis. Comparing these attacks with official statements released by actors suspected of bombing hospitals, we discovered that one of the recurrent arguments used to legitimise the strikes was that the facilities had been transformed into ‘hospital shields’ and used to conceal military targets. We then decided to reconstruct the history of hospital bombings and found that since 1911 — the first time medical units were bombed from the air — belligerents have consistently justified aerial strikes by claiming that the medical units were being used to hide combatants or harbour weapons.  

This revelation led us to examine in detail the historical development of the legal clauses dealing with the protection of medical units in armed conflicts. Our analysis revealed that the clauses include a number of exceptions that have allowed belligerents to assert that the bombing was carried out in accordance with IHL. We argue that belligerents can do this since hospitals occupy a spatial and legal threshold during armed conflict, and that IHL, which is informed by the rigid distinction between combatants and noncombatants, does not have the vocabulary to deal with liminal people and objects. This, we maintain, enables belligerents to use the law to justify the attacks.  

Our assumption throughout the paper is that IHL is subject to constant interpretation and reinterpretation, and that the way states interpret the law — even if we disagree with their interpretation — helps to establish the law’s meaning. International law is, after all, shaped by states, and through their practices, manuals and utterances they help determine the interpretation of its clauses. Hence, the fact that for over a century many states, among them the most powerful ones, have justified the bombing of hospitals by claiming that they were used as shields is not something we can dismiss by simply claiming that they are misinterpreting the law. After all, those very states introduced the hospital shields exception.  Read the rest of this entry…

Print Friendly, PDF & Email
 

Protecting the Environment in Non-International Armed Conflicts: Are We There Yet?

Published on July 16, 2019        Author:  and

The International Law Commission (ILC) during its current 71st session has provisionally adopted, on first reading, the Draft principles on the protection of the environment in relation to armed conflict. The first-reading text had taken five years to prepare, under the successive leaderships of Special Rapporteurs Ms. Marie G. Jacobsson (2013 – 2016), and Ms Marja Letho (2017-2019). The last report of Special Rapporteur Letho (2019) completed the work on this topic, focusing in particular on the question of environmental stresses related to non-international armed conflicts (NIACs). This blog post deals first with certain general issues as to the scope and form of the draft principles, and then discusses whether the draft principles are sufficiently responsive in the context of NIACs.

Scope and methodology of the topic

With respect to the ratione temporis of the draft principles, the ILC employed a temporal approach by drafting provisions structured according to three phases of an armed conflict: before (preventive measures, but also principles of a more general nature of relevance to all three temporal phases), during (the conduct of an armed conflict) or after (post-conflict measures in relation to environmental damage) an armed conflict. The rationale of the topic was to address the law of armed conflict but also other areas of international law. The scope of the topic (peacetime and wartime obligations) inevitably influenced the outcome, which led the ILC to adopt “principles” at a more general level of abstraction, albeit with different normative values, from recommendations to fully binding rules. Read the rest of this entry…

Print Friendly, PDF & Email
Filed under: Armed Conflict, Use of Force
 
Comments Off on Protecting the Environment in Non-International Armed Conflicts: Are We There Yet?

The Ituri Conundrum: Qualifying Conflicts between an Occupying Power and an Autonomous Non-State Actor

Published on July 15, 2019        Author: 

Last week, Trial Chamber VI of the International Criminal Court (ICC) issued the long-awaited judgment in the Ntaganda case. The judges found the defendant guilty on all 18 counts, including the ICC’s first ever conviction for sexual slavery. Although the Chamber is yet to resolve matters related to sentencing and reparations, the decision marks an important milestone in the proceedings, which began with an arrest warrant issued back in August 2006 (Mr Ntaganda surrendered himself to the ICC in March 2013).

Readers of this blog will be familiar with the case as well as with some of the controversies surrounding its progress. In brief, Bosco Ntaganda was the Deputy Chief of Staff of the Patriotic Forces for the Liberation of Congo (FPLC), the armed wing of the Union of Congolese Patriots (UPC). The UPC/FPLC was one of the armed groups involved in the so-called Ituri conflict, which took place between 1999 and 2003 in the Ituri region in the north-eastern Democratic Republic of the Congo (DRC). Before the ICC, Mr Ntaganda was charged with 13 counts of war crimes and five counts of crimes against humanity, all allegedly committed in Ituri between 2002 and 2003.

The judgment, which fills over 500 pages, no doubt deserves careful scrutiny before any general pronouncements can be made as to its overall quality and rigour. Instead of analysing the judgment as a whole, this post focuses on a narrow question related to the Chamber’s legal qualification of the conflict in Ituri at the material time (discussed in paras 699–730 of the judgment). In particular, I am going to look at how international humanitarian law (IHL) qualifies conflicts between an occupying power and an autonomous non-State actor. The analysis builds on my research into complex conflict situations, which was published as part of my recent book on Internationalized Armed Conflicts in International Law (OUP 2018, especially chapter 3).

The situation in Ituri between 2002 and 2003 was notoriously convoluted, Read the rest of this entry…

Print Friendly, PDF & Email
 

Clarifying the Contours of the Crime of Starvation

Published on June 27, 2019        Author:  and

The Lack of Prosecutions

Starving civilians as a method of warfare has long been prohibited and criminalised across the full spectrum of international legal frameworks, yet despite this criminalisation and its grave human cost, there has yet to be a prosecution of starvation on the international level. Consequently, the crime and its intersection with a wide range of other violations remain entirely unexplored.

The crimes that have oc­cupied the international courts are those most frequently associated with an ongoing armed conflict. Whether the persecutory rapes in Bosnia, the slaughter in Rwanda, or the amputations of civilians in Freetown in Sierra Leone. This is the type of criminal conduct that appears to have shaped the perception of the type of deaths and injury that are most appropriate for prosecution in modern international criminal courts, with starvation languishing on the margins of prosecutorial imagination and practice.

In a legal policy paper recently issued by Global Rights Compliance (GRC), we set out in more detail the reasons behind the dearth of prosecutions and explore the paths to prohibition and accountability for the widespread and systematic death and suffering that it causes worldwide, with a focus on criminal prosecutions.

The F Word – The Return of Famines

Famines have returned and they strike where accountability (political or criminal) fails. In 2017 the UN identified four situations of acute food insecurity that threatened famine or breached that threshold, in north-eastern Nigeria, Somalia, South Sudan and Yemen. In December 2018 famine was formally declared across regions of Yemen, this is likely to be the famine that will define this era. Starvation is also being used as a weapon of war in Syria and the Democratic Republic of Congo. The Gaza Strip and in Venezuela also suffer from the manipulation, obstruction and politicization of food and humanitarian aid. Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on Clarifying the Contours of the Crime of Starvation

Russian Agents Charged with Downing of MH17; MH17 Cases in Strasbourg

Published on June 20, 2019        Author: 

Yesterday international investigators charged three Russian nationals and one Ukrainian national before Dutch criminal courts for the 2014 downing of Malaysian Airlines flight MH17 over Ukraine. According to a report in the Guardian:

The suspects were named as Igor Girkin, a former colonel of Russia’s FSB spy service; Sergey Dubinskiy, employed by Russia’s GRU military intelligence agency; and Oleg Pulatov, a former soldier with the GRU’s special forces spetsnaz unit. All were Russian soldiers previously sent abroad.

A fourth suspect, Leonid Kharchenko, is a Ukrainian. He led a military combat unit in the city of Donetsk as a commander, it was alleged.

Girkin was minister of defence in the Moscow-backed Donetsk People’s Republic (DNR). He was the commander of the DNR when the plane was shot down on 17 July 2014. Dubinskiy served as Girkin’s deputy in the DNR, and Pulatov was Dubinskiy’s deputy. Kharchenko was under their command.

Investigators said the soldiers “formed a chain linking DNR with the Russian Federation”. This link was how the separatists obtained heavy equipment from Russia including the Buk launcher used to fire at MH17 with “terrible consequences”.

The accused did not push the button themselves but were responsible for bringing the anti-aircraft system to eastern Ukraine. They could therefore be held criminally liable and charged with murdering 298 people, investigators said.

Readers will recall that last year the investigators and the Dutch and Australian governments formally attributed the downing of MH17 to Russia. Yesterday, however, saw the first criminal charges brought against specific individuals. Obviously, it remains highly unlikely that any of them will face trial in the Netherlands in the foreseeable future, unless they are unwise enough to travel abroad, although they will likely be tried in absentia.

There have also been interesting developments about litigation regarding MH17 in the European Court of Human Rights. Back in 2014 I suggested that the families of the victims may decide to bring cases against both Russia and Ukraine:

In addition to whatever direct involvement these states may have had in the destruction of the aircraft, they could also be held liable for other internationally wrongful acts. For example, Ukraine could be responsible for failing to secure the right to life of the victims and failing to comply with its substantive positive obligations under Article 2 ECHR by deciding not to close the relevant airspace for civilian traffic. Russia could be held responsible for providing the rebels with anti-aircraft weaponry without sufficient safeguards (e.g. appropriate training of the missile crews), thus creating the risk that this weaponry could be used against civilian targets. Both states could be held responsible for failing to secure an effective investigation into the incident. Obviously the facts could yet develop and some very complex preliminary issues could arise (e.g. the extent of Russia’s control over the Ukrainian rebels and the question of the ECHR’s extraterritorial application), but all these points seem arguable.

At least two such cases have indeed been brought and have been communicated by the Court to the respondent governments for pleadings on admissibility and merits.

Read the rest of this entry…

Print Friendly, PDF & Email
 
Tags: ,

20 Years of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in Armed Conflict: Have All the Gaps Been Filled?

Published on May 29, 2019        Author: , and

Just over twenty years ago, on the 26th of March 1999, the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (hereafter Second Protocol) was adopted. Following the Balkan wars, there was a sense that the 1954 Hague Convention, the key treaty protecting cultural property, was not entirely fit for purpose. It had for example left the concept of ‘imperative military necessity’ undefined, leaving too much leeway for interpreting the way it should be applied on the ground. The Second Protocol attempted to clarify this exception to the obligation to respect cultural property in armed conflict by narrowing its scope, i.e. only permitting an act of hostility against cultural property if that object was made, by its function, a military objective and if there is no feasible alternative available to obtain a similar military advantage (Art 6(a) Second Protocol). It added that the use of cultural property in a manner that puts it at risk of damage or destruction is only possible for as long as there is no other means to gain a similar military advantage (Art 6(b) Second Protocol). Finally, it added that only commanding officers may invoke ‘imperative military necessity’ (Art 6(c) Second Protocol).

Importantly, the Second Protocol devised a new form of additional protection. The system established under the 1954 Hague Convention allowing states parties to request ‘special protection’ for a limited range of buildings (refuges sheltering cultural objects from armed conflict, centres containing monuments, and other immovable cultural property of great importance) had not garnered much success. While the advantage to being placed under special protection is clear, with the property benefitting from immunity, i.e. that the States parties must refrain from any act of hostility against it and from any use of it or its surroundings for military purposes which could turn the property into a military objective, only Vatican City and a small number of refuges had been entered on the International Register of Cultural Property under Special Protection’ by the time the Second Protocol was being drafted. The Second Protocol tried to address the failure of the special protection system by replacing it with that of ‘enhanced protection’, which has the ability to encompass many more properties : any movable or immovable property can now be considered and there is no longer any requirement for the property to be situation at a sufficient distance from industrial centre or potential military objectives, a major obstacle to the listing of any property situated in or near a city (Art 10 Second Protocol). Read the rest of this entry…

Print Friendly, PDF & Email
Filed under: Armed Conflict
 
Comments Off on 20 Years of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in Armed Conflict: Have All the Gaps Been Filled?