War Crimes

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The Ntaganda appeal judgment and the meaning of ‘attack’ in conduct of hostilities war crimes

One of the many interesting issues raised by the ICC’s recent Ntaganda appeal judgment, and the subject of this post, is whether war crimes referring to ‘attacks’ require a nexus to hostilities. IHL has traditionally distinguished between protecting persons from the conduct of hostilities (Hague law) and protecting persons in the power of a belligerent (Geneva law). This is the difference, for instance, between attacking civilians and killing civilians in occupied territory, or between declaring that quarter will be denied and killing captured prisoners. Since war crimes are generally interpreted by reference to the underlying IHL rules, the distinction between conduct of hostilities and other armed conflict conduct is also reflected in the corresponding war crimes. Thus, for war crimes involving attacks, ‘attack’ has been defined in accordance with its meaning in IHL (e.g., Katanga trial judgment ¶ 798), where it is defined in AP I Art. 49(1) as ‘acts of violence against the adversary whether in offence or in defence’. The restrictive IHL interpretation of ‘attack’ as…

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Australian war crimes in Afghanistan: The Brereton Report

On Thursday 19 November Australia faced a reckoning with its recent past in Afghanistan.* Australian political culture approaches our armed forces with a great degree of deference and respect. Three of our last four Governors General have been, for example, senior military leaders. The Australian Defence Force support operations in respect of the January 2020 bushfires and the…

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The First Report of the OPCW’s Investigation and Identification Team on Syria

In April 2020, the Investigation and Identification Team (IIT) formed by the Director General of the Organisation for Prevention of Chemical Weapons (OPCW) to identify the perpetrators of the use of chemical weapons in the Syrian Arab Republic released its First Report (First IIT Report). The IIT was established pursuant to a decision of the Conference…

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Complicity in war crimes through (legal) arms supplies?

  German and other corporations whose arms were used in the war in Yemen have been accused of criminally assisting war crimes. The Berlin-based NGO European Center for Constitutional and Human Rights (ECCHR) filed a complaint (a “communication”) to the International Criminal Court (ICC) making this claim with regard to a series of multinational arms companies. But…

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The Soleimani Strike and Self-Defence Against an Imminent Armed Attack

  The US drone strike on Qassem Soleimani, one of the most important members of the Iranian leadership, raises many complex questions of international law. This post will examine the lawfulness of the strike from the standpoint of the law on the use of force. It will first set out the parameters of the US justification…

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