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Home Archive for category "Armed Conflict" (Page 24)

How to Qualify the Armed Conflict in Libya?

Published on September 1, 2011        Author: 

A colleague and I are currently working on an article on the qualification or classification of armed conflicts in modern IHL. The ongoing developments in Libya bring out a specific difficulty in the process of qualification which we see as problems of state representation. An excerpt from the draft is provided below, and it is very much work in progress; footnotes are omitted, while comments are welcome. For some relevant links, see yesterday’s post by Iain, this post on recognition by Dapo, and this post of mine on what exactly internationalizes a non-international armed conflict, i.e. turns a NIAC into an IAC.

* * *

It may be easy to say that IACs are fought between states and statehood may be uncontested in a given case, but who gets to represent the state may turn out to be a very difficult issue. Not only is this question important for the initial qualification of a conflict, but it may also prove to be crucial for its requalification or transition from one type to another.

Consider, first, the invasion of Afghanistan by US-led coalition forces in 2001. The first representational difficulty we encounter in qualifying the conflict is that the Taliban regime was not recognized as the lawful government of Afghanistan by the states that launched the invasion or by the international community generally. That difficulty is however reasonably easy to deal with. It is precisely because historically the recognition of states and governments was a way to avoid the application of the law of war that the position in modern IHL is that it is de facto government and not recognition that matters. While they never controlled all of Afghanistan, at the time the Taliban were in effective power in most of the country, including the capital Kabul, and they had established institutions of government. Accordingly, there was an IAC between the US and other coalition states on one side and the state of Afghanistan, represented de facto by the Taliban regime, on the other, while there was also a NIAC running in parallel between the Taliban and the forces of the Northern Alliance.

But then the Taliban were defeated; their institutional rule over Afghanistan could not survive the joint coalition-Northern Alliance assault. Today we of course know that the defeat of the Taliban was far from complete, but it is still true to say that they lost the territorial control of the kind that denotes a government rather than simply an armed group. That vacuum was filled through a long transitional process, lasting from the end of 2001 up until 2003, which was approved by the UN Security Council and ultimately resulted in the establishment of a new Afghan government. The new government not only consented to the presence of international forces in Afghanistan, but together with the international forces continued to fight the growing Taliban insurgency. The question thus is whether and at what point the conflict transitioned from a mixed IAC/NIAC to a NIAC pure and simple, i.e. at what point the Taliban lost the capacity to represent the state of Afghanistan, and accordingly lost belligerent rights vis-à-vis third states intervening in Afghanistan.

Read the rest of this entry…

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Operationalising the Law of Armed Conflict for Dissident Forces in Libya.

Published on August 31, 2011        Author: 

As the conflict in Libya appears to be drawing to a close, more allegations are surfacing that war crimes have been committed, and fears have been expressed that reprisals may occur.  The allegations made against the Qadhafi forces of torture and wilful killing (see here and here) are grave, but a Human Rights Watch report that alleges that Libyan dissident forces have unjustifiably damaged property, beaten individuals, and looted hospitals, homes and shops, is also disconcerting.

These allegations are at odds with the declared policy of the Libyan National Transitional Council (NTC) which, on March 24 stated, in relation to the treatment of detainees and prisoners, that “its policies strictly adhere to the ‘Geneva Convention relative to the Treatment of Prisoners of War’ as well as with the ethical and moral values of the Libyan society”.  This statement continued:

“1.        Any Libyan caught whether they be military personnel or citizens recruited to cause sabotage and spread chaos, should not be titled as ‘Prisoner’ but as a Libyan brother (or sister) who has been deceived.

2.         All prisoners and detainees will be provided with food, water and necessary medical assistance and will be treated humanely, without the use of aggression in any form. The NTC will vow to punish those who violate this code and will allow local and international human rights organizations to freely visit and talk to the detainees and prisoners at any time.”

Further, on May 19 the NTC launched a frontline manual on the fundamental rules of armed conflict (see here for the Manual). This has been distributed in various forms, including sending extracts as text messages on mobile phones.  This manual was intended to demonstrate its commitment to do its best to ensure that its forces would adhere to the principles of international humanitarian law, and thus minimize harm to the Libyan people.  In its press release no.21 (which is not on its website), the NTC stated:

 “We recognise that many of those men and women who have taken up arms in opposition to the Qadhafi regime are not combatants who have been formerly trained in the laws of armed conflict. As such, these guidelines were requested in order to help instruct them, as rapidly as possible, in the fundamental rules which they must respect, in particular those relating to the humane treatment of detainees and to targeting in an armed conflict.”

Shortly after the outbreak of conflict in Libya, some expatriate lawyers established a group, Lawyers for Justice in Libya (LFJL) which has the aim of promoting human rights in Libya and, in particular, investigating and documenting possible crimes against humanity committed by the Qadhafi regime since 15 February 2011, and also human rights abuses committed since that regime came to power 42 years ago.

As the group organising Libyan dissident forces, the NTC did not want to “act like Qadhafi and his forces”, it asked LFJL to advise on the applicable rules of the law of armed conflict.  Through personal contacts, LFJL assembled a small group based in the School of Oriental and African Studies, University of London, to draw up basic guidelines for use in the field. We were asked to focus on two areas: guidelines for the detention of captured Qadhafi forces, and guidelines on targeting. Our brief was to provide concise guidance which would set out basic legal standards with the aim of advising how the dissident forces could avoid breaching the law of armed conflict or, for that matter, expose themselves to liability under international criminal law.

Accordingly, these guidelines have two functions: to set out basic standards of behaviour, but also to provide standards of accountability. Read the rest of this entry…

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France Admits to Arming Libyan Rebels – Was this Lawful?

Published on July 1, 2011        Author: 

France has admitted supplying weapons to rebels in Libya fighting against Colonel’s Gaddafi’s forces. According to Channel 4 News in the UK:

A senior French diplomatic source who wished to remain nameless told Channel 4 News that the weapon drop “was an operational decision taken at the time to help civilians who were in in imminent danger. A group of civilians were about to be massacred so we took the decision to provide self-defensive weapons to protect those civilian populations under threat.”

“It was entirely justifiable legally, resolution 1970 and 1973 were followed to the letter and it can be assured that there will be no diplomatic crisis despite what the African Union and Russia may say,” the diplomat said.

“France will not rule out more weapon drops in the future as we will take every decision on a case by case basis,” he added. (see also France 24)

It has also been reported that Russian Foreign Minister Sergei Lavrov has stated that

“If this is confirmed, it is a very crude violation of UN Security Council resolution 1970 [which imposes an arms embargo on Libya].”

The battle lines are clearly joined on this issue. Marko and I discussed this issue back in March (see here for my post and here for Marko’s) with comments from readers. My own view remains that SC Res 1973 which “Authorizes Member States . . .  to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya” (emphasis added) explicitly and also structurally creates an exception to the arms embargo in SC Res 1970. However, as I stated at the time, it is only lawful to provide arms to the rebels if that is for the purpose of defending civilians or civilian protected areas. It is unlawful to provide arms for aims that go beyond defence of civilians and civilian protected areas.  This is the position taken by the UK Foreign Office and restatedin relation to this incident (see here). Read the rest of this entry…

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When to Kill and When to Capture?

Published on May 6, 2011        Author: 

My previous post on the Osama bin Laden killing and a number of posts at Opinio Juris have attracted a very productive discussion in the comments, which I would recommend to all readers who haven’t seen it already. The key issue that has emerged in this discussion is whether the legality of OBL’s killing depends on whether the US forces could have captured him through non-lethal means rather than killed him; if they could have, then according to some commentators they should have, and if they didn’t the killing was unlawful. Other commentators dispute this argument quite strongly. I offered some tentative thoughts on this in my earlier post, which I’ll develop here further, particularly as more pertinent facts have emerged since.

Let me first outline my view on the applicable law. To simplify matters, let us accept arguendo that I am right that human rights law, namely the ICCPR, applied extraterritorially to the killing of bin Laden, i.e. that the US had the obligation to respect OBL’s rights under the treaty and not deprive him of life arbitrarily, per Art. 6 ICCPR. Let us also accept that I am wrong in saying that IHL was probably inapplicable to his killing, and postulate further not only that IHL applied, but that OBL was a lawful target in some armed conflict of whatever nature (e.g. as a member of an organized group, or as a civilian directly participating in hostilities). Or, if you will, let us just postulate that OBL was killed in Abbottsville, Ohio rather than in Abbottabad, Pakistan. By so doing, we would be dealing with a military strike by a state within its territory in the course of an armed conflict, international or non-international, and would thus be avoiding the issues of self-defense/jus ad bellum and the extraterritorial application of human rights treaties which are not pertinent for the following analysis. The central issue that I will be dealing with will be the relationship between IHL and IHRL.  (My more exhaustive examination of this topic can be found in this article, which I will drawing upon for the purposes of this post).

First, what do the two bodies of law say about intentional deprivations of life? The situation is, in my view, relatively clear under both regimes. Under IHL, the lawfulness of attacking a target depends on its status (which we’ve postulated for the purposes of this post). A combatant or a civilian taking a direct part in hostilities can be attacked at any time while the status persists, so long as the individual is not hors de combat, e.g. surrenders or is incapacitated. Contrary to some recent suggestions by Nils Melzer, both in the course of his academic work and in the ICRC DPH guidance, IHL does not impose a necessity requirement for attacking a target possessing such a status. In other words, there is under IHL no obligation to first employ non-lethal means against a lawful target, or to capture or detain before trying to kill. Shooting first is perfectly proper. Thus, again postulating some relevant type of status for OBL, under IHL he could have been shot and killed at any time. The fact that he himself was not carrying a weapon is immaterial; he would still have been a lawful target due to his status, just like Ghaddafi is a perfectly lawful target despite not carrying any arms under those flowing robes of his. The only way in which OBL could immunize himself from targeting would be if he clearly announced his intention to surrender or was incapacitated, i.e. rendered hors de combat.

IHRL, on the other hand, does not vary its protections on the basis of an individual’s status, and is of course far more life-protective than IHL. Deliberate use of lethal force is lawful only if absolutely necessary; non-lethal means must be exhausted first. A person may be targeted only if he poses danger to the lives of others; the danger should generally be immediate, but that requirement might perhaps be loosened if the level of danger is higher. But even the most dangerous individual must be captured, rather than killed, so long as it is practically feasible to do so, bearing in mind all of the circumstances. Thus, if it was in fact perfectly possible for the Navy SEALS to kill OBL’s armed cronies and then to capture OBL himself, then OBL should not have been killed; his death would have been an arbitrary deprivation of life within the meaning of Art. 6 ICCPR. This is obviously a highly fact-dependent assessment, and we still don’t know all the facts – and we may never do. In making this assessment, it would be necessary to weigh the risk to the lives of others, including the US soldiers, in attempting to capture OBL alive, as well as the risk that he might escape if non-lethal means were used. In any case, however, OBL couldn’t have been lawfully killed simply because it was (vastly) easier than detaining him and putting him on trial. Similarly, so long as capture was practically feasible, the fact that OBL did not take active steps to surrender (rendering himself hors de combat in terms of IHL) doesn’t mean that he could have been targeted, as he was unarmed and posed no immediate danger to anyone.

Read the rest of this entry…

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Was the Killing of Osama bin Laden Lawful?

Published on May 2, 2011        Author: 

Yes. I wouldn’t say beyond any doubt, but for practical purposes very nearly so. As I’ve argued before, there are three bodies of law (potentially) relevant for assessing the legality of a targeted killing: the jus ad bellum, IHL, and human rights law.

As for the jus ad bellum, it is unclear at this time whether the Pakistani government – parts of whose security apparatus undoubtedly harboured and protected OBL – consented to the use of force by the US on Pakistani soil. The Pakistani government has not yet publicly expressed its views on the matter; all things considered, however, it seems such consent was given. If it was not, then the US would have to argue self-defense in killing OBL, which is of course a complex question. At any rate, it is for Pakistan to raise a jus ad bellum issue, and it does not seem at all politically likely that they will now say, oh yes, we’ve been hiding OBL for years now, but the US had no right to violate our sovereignty.

As for IHL, the jus in bello, it either does not apply at all  as the killing was not done as a part of any legally cognizable armed conflict (probably the better view), or OBL was a lawful target as a leader of an organized armed group taking part in a non-international armed conflict a la Hamdan.

As for IHRL, as readers are aware the US argues that the ICCPR does not apply extraterritorially, e.g. to a targeted killing in Pakistan. That position is in my view incorrect. No matter how despicable, OBL was a human being with human rights, and he was protected by the ICCPR – but his human rights were still not violated. IHRL does allow states to deliberately kill individuals if they have a sufficient justification. OBL was undoubtedly a highly dangerous individual, whose apprehension was needed to protect the lives of others. The US military operation at least contemplated the capture of OBL; the troops on the ground shot him in a firefight. There are no indications that he had tried to surrender before being shot. Under the same facts, his killing would have been equally as lawful had he been hiding somewhere in Alaska rather than in Abbottabad.

 

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UN Panel of Experts Report on the Sri Lanka Conflict

Published on April 26, 2011        Author: 

The report of the Panel of Experts appointed by the UN Secretary-General to investigate the circumstances of the conclusion the Sri Lanka war has been made public today – full report here, BBC News article here. The report was disclosed to the Sri Lankan government a few weeks ago; regrettably and quite predictably, the government already dismissed it as incorrect and biased. As in many other cases of conflict and atrocities inspired by ethnic nationalism, several competing versions of reality have already emerged. While the government claims that it pursued a policy of zero civilian casualties, the Panel report paints a very different picture, finding widespread violations of international human rights and humanitarian law on both sides, but particularly on that of the government.

On the legal side of things, one of the appointed experts was the well-respected international lawyer Steve Ratner, professor of international law at the University of Michigan Law School. The report’s discussion of the applicable law and legal findings, at p. 52 et seq, seem to me to be more or less watertight. There are no flights of fancy here; even when broad or progressive, the legal findings are appropriately cautious when caution is warranted (e.g. as to whether non-state actors are bound by human rights, at para. 188).

The Panel has recommended that the Secretary-General establish an independent international investigative mechanism; he has refused to do so absent the consent of the Sri Lankan government or action by other member states. The Sri Lankan conflict has been overshadowed by other events and the international community has been remarkably passive with regard to the war crimes committed in its conclusion. Hopefully this report will not be the end of the matter.

(I would have quoted a number of paragraphs from the report, but whoever made that PDF disabled the copy and paste functions, which is really stupid beyond belief. I do hope somebody fixes that.)

UPDATE: Dov Jacobs has most helpfully created a quotable version of the report, which is available here: http://www.mediafire.com/?tl6szs1uo2991vx

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The High Representative for Bosnia and Herzegovina: A Requiem for Legality

Published on December 14, 2010        Author: 

Dr Miroslav Baros is Senior Lecturer in Law at Sheffield Hallam University, UK.

 Introduction

 ‘The Order further confirms that any proceeding instituted before any Court… which challenges [my] decisions sanctioning individuals …enacted by  me,  will be inadmissible, unless… I expressly give my prior consent.

The Decision of the Court does not affect [my] decisions… and individuals who have been banned from public life by such decisions.

Moreover, any step taken by any institution or authority… to establish any domestic mechanism to review… my decisions will be considered an attempt to undermine… me.

This Order comes into immediate effect’…

The reader has three attempts within 30 minutes to identify the author of this statement.  To help eliminate the most likely candidates I will clarify that it is neither an assertion of authority and unlimited powers by Tolkien’s malevolent and Dark Lord Sauron, nor is it Judge Dredd’s famous statement through Sylvester Stallone: ‘I am the Law’. Sorry, the time is up; it is Bosnia’s High Representative of the International Community and his Order Concerning Implementation of Constitutional Court Decision AP-953/05 of 23/03/07.

In the view of the author of the present article recourse to the world of fantasy and entertainment (for which the author most sincerely apologises if it caused annoyance) was necessary because it was, as the offered assistance to the reader suggests, an arduous task to find an appropriate comparison in the real world of international relations. It was actually relatively recently suggested that the style and powers of the High Representative resemble those of Lord William Bentinck who became governor-general of India in 1828,[1] but with the advantage of hindsight it can safely be argued that the High Representative has, by far beaten Lord Bentinck and therefore a comparison with the world of fantasy may be the closest one. Knaus and Martin, bewildered by the extent of powers and a tendency to abuse them by the High Representative drew a further comparison with the office of the dictator in the ancient Roman republic during emergencies situations, but the authors correctly concluded that even in those situations the dictator was a constitutional officer appointed temporarily by the Senate and who would be declared an outlaw if he refused to stand down after the period for which he had been appointed.

In spite of those rather dramatic comparisons and colourful descriptions a promenade of successive High Representatives continued to the present day. Cleverly wound up by a journalist in 2002 the then High Representatives excitingly admitted: ‘What we have [in Bosnia] is near-imperialism’. The High Representative also said that his job incorporated ‘Gilbert and Sullivan title and powers that should make a liberal blush’ – though as the journalist wryly noted, ‘he wasn’t blushing’.  Confusingly, on 27 February 2007 the Peace Implementation Council decided to end the High Representative’s mandate on 30 June 2008 (see here), but this was never implemented.

Writing in the Guardian in 2007 David Chandler noticed: ‘twelve years after the Bosnian conflict was apparently resolved with the Dayton agreement, the international high representative still runs Bosnia as if it was a feudal fiefdom. He has the power to impose legislation and dismiss elected politicians without any right of appeal.’

For the sake of a systematic and orderly presentation of the phenomenon the functioning of the High Representative in Bosnia and Herzegovina can be described as and categorised into two major groups of violations: violations of international law and violations of the parties’ democratic entitlements. In normal circumstances each one of the mentioned categories would in itself suffice for taking an urgent remedial action of some kind to prevent further abuse but not so in the present case. Read the rest of this entry…

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Filed under: Armed Conflict, EJIL Analysis
 

What Exactly Internationalizes an Internal Armed Conflict?

Published on May 7, 2010        Author: 

I’d like to turn our readers’ attention to the comment thread of Constantin’s post, which has raised a fascinating issue – when does an internal armed conflict become internationalized? I’d like to add a few thoughts of my own, first on some matters of definition.

We first need to agree on what the ‘internationalization’ of an internal armed conflict actually means. To my mind, that concept is only legally useful if it denotes the transformation of a prima facie non-international armed conflict into an international one, thereby rendering applicable to the said conflict the more comprehensive IAC legal regime. As is well known, there has been a long-standing trend – promoted, for example, by the case law of the ICTY and the ICRC customary law study – of arguing that most of IAC rules now apply to NIACs as well.

Crucially, however, at least one distinction between the two legal regimes remains. In IACs, the parties to the conflict are (at least) two equal sovereigns. Lawful participants in the hostilities who in effect represent those sovereigns thereby have combatant status, and enjoy the privilege of belligerency. They cannot be prosecuted by the other party for their mere participation in the hostilities, but solely for violations of IHL. In NIACs, however, the parties are fundamentally different – most commonly a government and a rebellious non-state actor. Because governments have every right to suppress rebellions against them, no combatant status or privilege exists in NIACs. A rebel can be prosecuted for the mere fact that he is a rebel, even if he has been completely observant of the rules of IHL. Thus, for example, the government of Afghanistan has every right to imprison a Taliban soldier, even if that soldier committed no war crime.

Note that this distinction is based on party structure to the conflict and is therefore here to stay. Note also that because the distinction between IACs and NIACs is based on party structure, one cannot logically first ask the question (as Federico does in the comments) whether there is an armed conflict simpliciter, and the ask further whether that conflict is international or non-international. Rather, IACs and NIACs are separate legal categories, neither of which is residual in nature, as it is impossible to establish either without making an inquiry into party structure. In other words, an ‘armed conflict’ exists when there is an IAC or a NIAC, not the other way around.

Per Common Article 2 of the Geneva Conventions, IACs are defined as conflicts between states. There are thus two basic ways of ‘internationalizing’ a NIAC: (1) for treaties and/or custom to exceptionally expand the definition of an IAC to include as parties some sufficiently state-like entities, or (2) for the non-state actor which is a party to a NIAC with a state to be considered as acting on behalf of a third state.

Read the rest of this entry…

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German Federal Prosecutor Terminates Investigation Against German Soldiers With Respect to NATO Air Strike in Afghanistan

Published on April 29, 2010        Author: 

Constantin von der Groeben is a Ph.D. candidate at the University of Cologne, Germany and a LL.M. candidate at NYU School of Law. His Ph.D. deals with the applicability of the Laws of Armed Conflict to the War on Terrorism. He is a fellow of the Studienstiftung des deutschen Volkes (German National Academic Foundation).

Last week, on 20 April 2010, the German Federal Prosecutor closed the case against German soldiers, Colonel Klein and his First Sergeant Wilhelm, who were responsible for the NATO air strike near Kunduz last September.

Klein had requested the air strike against two fuel trucks which were stuck on a sandbank near the German camp in Kunduz. Up to 142 people were killed in the attack, and as was later revealed many civilians were among the dead. This inflamed the already heated debate over the role of the German Bundeswehr in Afghanistan, and the German participation in the unpopular NATO mission there. Eventually the German Defense Minister Karl Theodor zu Guttenberg called the air strike disproportionate.

Apart from some significant political repercussions, the Kunduz air strike eventually raised the question of criminal responsibility of German soldiers in Afghanistan, and the Federal Prosecutor opened an investigation against Klein and Wilhelm. It was the first time ever that soldiers of the Bundeswehr were investigated for war crime charges. Now, finally, the Prosecutor has decided to terminate the investigations on the grounds that neither Klein nor Wilhelm acted in violation of either international or ordinary criminal law.

The Decision in a Nutshell

Let me briefly summarize the major points in his decision.

First, the Federal Prosecutor characterized the situation in Afghanistan as a non-international armed conflict. Accordingly International Criminal Law was applicable in this case. In Germany, International Criminal Law has been implemented in the domestic legal order through the Völkerstrafgesetzbuch (VStGB – Code of Crimes against International Law). The relevant provision of the VStGB, which could have subjected Klein and Wilhelm to criminal liability, is § 11(1)(3) VStGB which regulates the war crime of deliberately causing disproportionate harm to civilians. This Provision in the German code is analogous to Art 8(2)(b)(iv) of the Statue of the International Criminal Court.

Second, applying the VStGB, the Federal Prosecutor found there was no violation of § 11(1)(3) because he concluded that neither Klein nor Wilhelm knew about the civilians’ presence near the gas tanker trucks when they ordered the attack, but rather assumed that they were only attacking Taliban. According to the Prosecutor, the German soldiers’ assumption was legitimate, because they had exhausted all possible means to investigate the situation and to assure themselves there were no civilians near the trucks. The fact that their assumption later turned out to be wrong did not make a difference: according to the Prosecutor, the decisive factor was the ex-ante assessment of the situation. Read the rest of this entry…

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US/NATO Targeting of Afghan Drug Traffickers: An Illegal and Dangerous Precedent?

Published on September 13, 2009        Author: 

In August, the United States Senate Foreign Relations Committe, released a report (“Afghanistan’s Narco-War: Breaking the Link Between Drug Traffickers and Insurgents”) which confirmed that U.S. forces in Afghanistan are now mandated to kill or capture drug traffickers in Afghanistan who have links to the Taliban. The Taliban is estimated to receive between $70 million and $500 million dollars a year from the drugs trade  and this money is said to play a critical role in financing the insurgency. Therefore, NATO (led on this issue by the US and the UK) consider it essential to starve the Taliban of the funds which make the insurgency in Afghanistan possible. However, targeting of individual drug traffickers or of drugs labs and other objects associated with the drugs trade raises some fundamental questions about who or what is a lawful target in armed conflict. The US and NATO’s policy appears to be a regrettable return to the notion of “quasi combatants” and to the idea of total war in which persons or industries connected to the war effort become legitimate targets. Given that the International Criminal Court has jurisdiction over acts committed in Afghanistan and the Office of the Prosecutor has been collecting information in order to decide whether to open an investigation into alleged crimes committed in that country (see here and the discussion at Opinio Juris), US and NATO commanders ought to pay careful consideration to the legality of their targeting policy.

Read the rest of this entry…

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