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Home Archive for category "Armed Conflict" (Page 22)

Can the ICC Prosecute for Use of Chemical Weapons in Syria?

Published on August 23, 2013        Author: 

Recent reports regarding the possible use of chemical weapons in Syria are very disturbing indeed. If it turns out that there is concrete evidence that chemical weapons have been used, many will hope this will (finally) provoke action by the Security Council. There will inevitably be calls for accountability of those responsible and hopes that the Syrian situation will be referred to the International Criminal Court (ICC). But even if the Syrian situation is referred to the ICC, can the Court prosecute for use of chemical weapons in Syria.

As Syria is not a party to the Statute of the International Criminal Court, the ICC will only have jurisdiction over events in Syria if there is a Security Council referral (Arts 12 & 13, ICC Statute). If the Council were to refer the situation in Syria, it is possible that attacks involving the use of chemical weapons may be prosecuted as part of a charge of crimes against humanity or as part of the war crime of intentionally directing attacks against a civilian population. In such a case, the use of chemical weapons would not form part of the core of the charge but would simply be the means by which the attack has taken place. Proving use of chemical weapons would not be necessary to sustain either charge. However, it is interesting to consider whether the use of chemical weapons would itself be a crime under the ICC Statute in the Syrian situation. I think the answer is yes, but, perhaps surprisingly, the answer is not as straightforward as one might have thought or would have hoped.

Does the ICC Statute Specifically Prohibit the Use of Chemical Weapons?

Despite attempts to include a provision that would have specifically and expressly criminalised the use of chemical weapons, the ICC Statute adopted in Rome 1998 did not mention chemical weapons by name (see Bill Schabas’ post here). However, Article 8(2)(b) of the Statute dealing with war crimes includes 3 provisions that might be interpreted as applying to chemical weapons. Art. 8(2)(b)xvii makes it a war crime to employ “poison or poisoned weapons”. Para. xvii refers to “employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices. Para. xx makes it a war crime to employ “weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict. . . .” However, that last provision only prohibits those weapons if they are subject to a comprehensive prohibition and included in an annex to the Statute. Unfortunately, no annex to this provision has been agreed so no one can (yet) be prosecuted under para xx.

An argument has been made that the provisions of the ICC Statute listed above do not cover chemical and biological weapons Read the rest of this entry…

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Prlić et al.: The Destruction of the Old Bridge of Mostar and Proportionality

Published on July 31, 2013        Author: 

Picture RogierRogier Bartels is a legal officer in Chambers at the International Criminal Court. The views expressed in this post (and in the article referred to, which was written before he joined the Court) are his own and do not necessarily represent the views of the ICC. He blogs at the Armed Groups and International Law Blog.

 

These last months, most of the blog posts on the ICTY have focused on debatable Appeals Chamber judgements and the associated letter by Judge Harhoff. A significant Trial Judgement (in French) that would normally perhaps have received attention was therefore largely ignored – although the international courts and tribunals’ judgements and decisions in French are often overlooked. The recent judgement in the multi-accused trial Prlić et al. is significant not just because of its length (six volumes totaling almost 2600 pages, including a 576 page dissent) and the time it took to draft (it was rendered more than three years after the end of the Defence case, and well over two years after the closing arguments were held). Most striking perhaps is the Trial Chamber’s determination that the Croatian leadership, including president Tudjman, formed part of a joint criminal enterprise that pursued the establishment of a Croat-only part of Bosnia-Herzegovina (for it to be joined with Croatia); this is especially interesting after the Appeals Chamber’s ruling that the Gotovina Trial Chamber was wrong in its finding in this regard. However, when listening to the delivery of the Prlić Judgement, what really caught my ear was the following “finding” on the destruction of the Old Bridge of Mostar:

On 8 November 1993, as part of the offensive, an HVO tank fired throughout the day at the Old Bridge until it was unusable and on the verge of collapse. The Bridge then collapsed on the morning of 9 November 1993. The Chamber finds, by a majority, with the Presiding Judge dissenting, that although the Bridge was used by the ABiH and thus constituted a legitimate military target for the HVO, its destruction caused disproportionate damage to the Muslim civilian population of Mostar (Judgement Summary, p. 3).

I have recently published an article in the Israel Law Review (open access until half August) on the use of the principle of proportionality in international criminal law, which discusses extensively the ICTY practice with respect to the principle. When listening to (the English translation of) Judge Antonetti reading out the summary of the judgement, I feared that my article was outdated already, as it appeared that theDestruction Mostar Bridge - BBC Majority had applied the proportionality principle in coming to this finding. And not just any finding: one that appeared to include a dual use object and a novel determination on the weighing of the long-term expected incidental damage. I say “appeared” twice because, as will be explained below, the summary was actually quite deceiving in this respect and no such finding was in fact made. (Old Mostar Bridge pictured right, credit)

In the article referred to above, I show that the Tribunal’s practice can be divided into three categories of cases where the different chambers: i) state and clarify the principle, but do not apply it to the facts of the case; ii) make findings on disproportionate or excessive use of force that cannot actually have resulted from an application of the principle; iii) the Gotovina case, in which the Trial Chamber did apply the principle to the evidence, but was then quashed by the Appeals Chamber. In this post, I will briefly discuss the ways in which the principle has been addressed in the ICTY’s case law in order to see where the Prlić case fits in. Read the rest of this entry…

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A Shared Responsibility Trap: Supplying Weapons to the Syrian Opposition

Published on June 17, 2013        Author: 
Syran Opposition Flag (Source: Wikipedia)

Syrian Opposition Flag (Wikipedia)

Cross-posted at the SHARES Blog

In the last few weeks, a shared responsibility trap has arisen in relation to the conflict in Syria. On 4 June 2013, the Report of the Independent International Commission of Inquiry on the Syrian Arab Republic documented that anti-government forces have engaged in a wide range of violations of human rights and international humanitarian law. At the same time, several States are inching towards openly supplying the Syrian opposition with arms. On 27 May, the Council of Ministers of the European Union decided not to renew the arms embargo against Syria. On 14 June, the United States announced that it plans to provide weapons in response to its finding that Syria has used chemical weapons.

 States that are now considering supplying weapons to the opposition forces in Syria run a risk of falling into a shared responsibility trap. They may have noble motives in seeking to save the population from atrocities. They may even consider that they should act in the spirit of the responsibility to protect, and should exercise a shared responsibility to protect individuals against the Assad regime. But there is a twist to such noble aims. States that provide weapons to the opposition will eventually share the responsibility for whatever the opposition does with those weapons. Read the rest of this entry…

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Regulating Resort to Force: A Response and Thanks to Corten

Published on May 2, 2013        Author: 

Matthew Waxman is Professor of Law at Columbia Law School, New York.

In the latest issue of EJIL, I write about doctrinal form and jus ad bellum in ‘Regulating Resort to Force: Form and Substance of the UN Charter Regime’, 24 EJIL (2013) 151. Much of the legal debate in this area – among states, scholars, and other international actors – takes place on a substantive axis, focusing on the scope of force prohibitions and exceptions: are they too broad or narrow; too permissive or restrictive?  In this article, I argue that these debates also sometimes explicitly or implicitly include preferences regarding doctrinal form, by which I mean modes of argumentation and analysis through which facts are assessed in relation to legal directives.

Adherents to one orientation, whom I term ‘Bright-Liners’, generally favour governing states’ legal authority to use force unilaterallyby clear and rigid rules that admit little case by case discretion. Adherents to another orientation, whom I term ‘Balancers’, generally believe that the legality of unilateral resort to force should be judged by objective but flexible standards that call for weighing contextual factors, thereby vesting in states some discretion to account for competing values.

 The main point of my paper is that substantive preferences – narrow versus broad international legal authority to use force – often go hand in hand with doctrinal form preferences (i.e. those favouring restrictive authority to use force generally prefer bright-line rules), but that they need not.  By prising apart the substantive debate from the debate about doctrinal form, and analyzing some of the reasons why one form might be better than another, I expose some conflicting but often-buried assumptions about how international law works or fails in this area, and I aim to open up some underappreciated ways to think about legal reform. Read the rest of this entry…

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A Response to Noam, Gina, Thomas and Mary Ellen

Published on April 29, 2013        Author: 

David Kretzmer is Professor Emeritus, Hebrew University of Jerusalem and Professor of Law, Sapir Academic College.

Many thanks to the editors of the EJIL for selecting my article for discussion on the blog and to Noam, Gina, Thomas and Mary Ellen for their thoughtful and perceptive comments.  These comments provide me with the opportunity of clarifying some of the points I raised in the article and expressing my view about issues that I failed to consider.

The discussion in my article was confined to use of force in exercise of a state’s inherent right to self-defence, recognized in article 51 of the UN Charter.  I did not consider humanitarian intervention, nor use of force authorized by the Security Council under article 42 of the Charter.  However, Gina is quite right in concluding that my analysis of unilateral use of force by states implicitly rules out unilateral humanitarian intervention.  Any decision on such intervention must be a collective one taken by the SC under Chapter VII. ( I shall not discuss the controversial view of the Independent International Commission on Kosovo that there may an intervention which while unlawful is nevertheless legitimate.)  While article 42 speaks of forcible action “as may be necessary to maintain or restore international peace and security” I fully accept Mary Ellen’s view that such action must also meet the demands of proportionality.

What is the place of the “narrow proportionality” test in jus ad bellum?  Thomas points out that while intimating that this test does indeed have such a place I neglected to develop the issue.  Following the line of just war theory, Mary Ellen argues that the very essence of proportionality in jus ad bellum involves “weighing the cost of resort to military force in terms of lives lost and property destroyed relative to the value of the legitimate military end.”  While Thomas mentions that there is little, if any, authority on which one can “conclude that the law on the use of force already includes a ‘narrow proportionality’ criterion” it seems to me that such a criterion is inherent in the very notion of proportionality.  Hence, as in other contexts in which the means-end proportionality test is employed, some “cost-benefit” analysis must indeed be part of the jus ad bellum test too.

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Weighing the Cost of War: a response to Kretzmer’s “The inherent right to self-defence and proportionality in jus ad bellum”

Published on April 24, 2013        Author: 

Mary Ellen O’Connell, Robert and Marion Short Professor of Law and Research Professor of International Dispute Resolution–Kroc Institute, University of Notre Dame

One of the most important points that David Kretzmer makes in his detailed analysis of the principle of proportionality in the jus ad bellum is the following: The question of “[p]roportionality arises … only when the aim or ends pursued [through resort to military force] are legitimate.  When it comes to state liability, if those ends are illegitimate all forcible measures used will ipse facto  be illegitimate, whether they are proportionate or not.” The ends of military force are legitimate only if they conform to an exception to the United Nations Charter Article 2(4) prohibition on the use of force, meet the requirements of the law of state responsibility, and comply with the general principle of necessity.  Proportionality involves weighing the cost of resort to military force in terms of lives lost and property destroyed relative to the value of the legitimate military end.  Assessing proportionality as a distinctive requirement of lawful resort to force only makes sense when the other conditions on lawful resort to force are also met. Read the rest of this entry…

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Ius ad bellum Proportionality is More Complicated Still: A Response to David Kretzmer

Published on April 22, 2013        Author: 

Thomas Liefländer is a doctoral candidate at St Hugh’s College, University of Oxford

Any attempt to come to terms with the notion of proportionality, be it in the context of the use of force in self-defence or anywhere else, has to grapple with a number of questions. First, what is the nature of the applicable proportionality test? Possible answers include ‘tit-for-tat’, ‘not-more-than-necessary’ or the ‘narrow proportionality test’ which assesses whether the ‘good’ effects of a measure outweigh its ‘bad’ effects. Secondly, once this question is settled, a more precise definition of the various factors going into the proportionality equation and how they interrelate is needed. Finally, how is each factor to be assessed under the conditions of epistemic and normative uncertainty that exist in the real world? Depending on the context, the answer to any one of these questions can be straightforward or very difficult. In self-defence, it seems, they are mostly difficult.

Professor Kretzmer’s recent EJIL article tackles some of these questions. He focuses, in particular, on the definition of the legitimate ends of self-defence and how they impact on the proportionality test. In summary, he first suggests that the definition of legitimate goals can determine whether a ‘tit-for-tat’ or ‘not-more-than-necessary’ test is applicable. Secondly, identifying the legitimate aims is crucial for being able to apply both the ‘not-more-than-necessary’ and the ‘narrow proportionality’ test, as both relate action taken in self-defence to the good (ie the legitimate ends) it intends to achieve. In these two respects, Professor Kretzmer’s contribution is outstanding. His work will certainly focus the discussion on the centrality that the definition of legitimate ends has both for self-defence in general and the issue of proportionality in particular. However, in stressing this particular aspect Professor Kretzmer may have downplayed the role of the remaining questions to some degree. I shall outline the important questions that Professor Kretzmer’s article essentially leaves open. In doing so, I will briefly touch on (1) the status of the ‘narrow proportionality’ test, (2) the ‘means’ side of the ‘means-end/not-more-than-necessary’ test, and finally (3) on the more general issue of proportionality-assessments under epistemic and normative uncertainty. My intention is not so much to challenge Professor Kretzmer’s arguments, but rather to extend – but not complete – the picture of what it is that we argue about when proportionality is in issue.

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Is it the right time to reconsider jus ad bellum proportionality?: a response to Kretzmer’s “The inherent right to self-defence and proportionality in jus ad bellum”

Published on April 18, 2013        Author: 

 Dr Gina Heathcote is a lecturer at SOAS, University of London

I shall begin by answering the question posed in my title in the negative.  The very technical and detailed discussion of the scope of jus ad bellum self-defence, as is found in David Kretzmer’s article, plays down the contemporary spaces where the Charter is being re-imagined by States. The post-millennium era has been characterised by state practice that seems to conveniently forget the constraints of the Charter structure, in particular the importance of Articles 2(3) and 2(4) of the Charter, in favour of unilateral force. In returning to the scope and permission embedded in the principle of proportionality, Kretzmer acknowledges but neatly avoids contemporary debates on the use of force in humanitarian crisis and the use of targeted strikes through identification but little analysis of the rhetoric, practice and confusion of the vast literature that has characterised post-millennium debates on jus ad bellum. This is an unfortunate consequence of Kretzmer narrowing in on, first, a component of the use of force (self-defence) and, second, to a specific aspect of that component (proportionality). This avoids looking, seeing or acknowledging the harm – the deaths – caused by targeted strikes and the consequences of both collective and unilateral interventions justified on humanitarian grounds, allowing international lawyers to retell stories of technical legal knowledge that are far removed from ‘what we talk about when we talk about war’ (see B.Stark ‘What We Talk about When we Talk about War’, 32 Stanford Journal of International Law (1996) 91). Read the rest of this entry…

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Comments on David Kretzmer’s “The inherent right to self-defence and proportionality in jus ad bellum

Published on April 17, 2013        Author: 

Dr Noam Lubell, Reader, School of Law, University of Essex

I’ve been asked to begin the discussion of Professor David Kretzmer’s new article on proportionality. Having benefitted from David’s wisdom in the past 20 years both academically and in my previous NGO life, I am not surprised to once again have thoroughly enjoyed reading his work. In particular I’m thankful to have been asked to take part in this discussion, as his latest article contains many thought-provoking points, of which we will probably only begin to scratch the surface (I urge you to read the article itself!). Considering the limited space in a discussion of this kind, I’m going to focus on just a few points related to two issues that arise a number of times in the article. Read the rest of this entry…

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Progressive Development of International Human Rights Law: The Reports of the Independent International Commission of Inquiry on the Syrian Arab Republic

Published on April 13, 2013        Author: 

Tilman Rodenhäuser is a PhD candidate at the Graduate Institute in Geneva.

The crisis in Syria has entered its third year and violence has risen to unprecedented levels. This is not only the case for acts committed by regime forces but also for violence by members of different armed groups fighting the Assad regime. At a time when the situation in Syria was still marked by the crackdown of regime forces on protesters, the Human Rights Council decided in August 2011 to establish a Commission of Inquiry. The Commission is mandated to investigate all alleged violations of international human rights law since March 2011, to establish facts, and to identify perpetrators in order to ensure accountability in the future. Documenting human rights violations at the different stages of the crisis, the Commission of Inquiry made some remarkable findings, particularly on the law applicable to acts of violence committed by opposition forces. First, in a situation where international humanitarian law did not apply because the Commission was unable to establish the existence of an armed conflict, it found that armed groups were bound by human rights obligations constituting peremptory international law. Second, in its recent report of February 2013, the Commission found armed groups in violation of Article 4 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

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