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Home Archive for category "International Humanitarian Law"

40th Anniversary of the Additional Protocols of 1977 of the Geneva Conventions of 1949

Published on June 8, 2017        Author: 

On 8 June 1977, at the invitation of Switzerland, plenipotentiaries of more than one hundred States gathered at the “Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts” to finalize and adopt Additional Protocols I and II (APs I and II) to the 1949 Geneva Conventions (GCs). Together with the GCs, APs I and II form the core of international humanitarian law.

Their adoption forty years ago marks a milestone in the regulation of armed conflicts. By developing and supplementing the GCs, AP I and II significantly improved the legal protection of victims of armed conflicts. A key achievement of the APs I and II was codifying and developing rules on the conduct of hostilities and those related to the protection of civilians from the effect of hostilities. In treaty law, these rules had remained untouched since the Hague Conventions of 1907. Another crucial enhancement lies in the extension of the protection granted under the GCs to all medical personnel, units and means of transport, whether civilian or military. Read the rest of this entry…

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EJIL Talk! Book Discussion: Djemila Carron’s Response

Published on June 2, 2017        Author: 

This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.

Introduction

I am grateful to the editors of EJIL: Talk! for organizing this discussion – the first one around a book in French! I also would like to warmly thank Professor Julia Grignon and Doctor Tristan Ferraro – whose articles, books and reflections were very important while writing L’acte déclencheur d’un conflit armé international – for their thoughtful comments on my work. In this contribution, I consider some of the questions they raise in each of their pieces, mainly on the capture of a soldier as a triggering act of an IAC (response to Julia Grignon) and on the classification of transnational armed conflict (response to Tristan Ferraro).

Animus belligerendi

I will not respond in detail to Julia Grignon’s development of my rejection of a criteria of animus belligerendi for the existence of an IAC (Part II, Question VI). She perfectly summed up my main arguments. The intent of a State to be in an IAC or in a state of war has no influence on the existence of an IAC. Once again, to exclude subjective elements from the definition of an IAC was one of the key reason for the shift in 1949 from the notion of war to the one of IAC. This said, as explained in the book, for such a conflict to take place, a State must nevertheless have the intent to use force against another one. I propose to defend this element through the objective requirements on the origin of an IAC (Part II, Question IV). In other words, if a State uses force against another one through its organs, acting in their capacity, following instructions and not mistakenly, the animus to use force is considered fulfilled. Read the rest of this entry…

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EJIL Talk! Book Discussion: The Act that Triggers an International Armed Conflict

Published on June 1, 2017        Author: 

This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.

While giving an interpretation of Article 2 common to the Geneva Conventions, in order to define the notion of international armed conflict, Djemila Carron touches upon a profusion of subsequent questions. This is one of the interests of this book. This is also what makes this present contribution challenging. Indeed, reading Djemila Carron’s reflection on the act that triggers an international armed conflict makes one, me at least, want to write a ten page contribution on each specific topic. And this is not only because of the proximity between the subject analyzed in her book and my own area of interest in research in international humanitarian law. In my view, in addition to the overall depth and quality of Djemila Carron’s rationale, there are two reasons that explain that feeling when reading her book. First, the prism through which she has decided to deliver the results of her research, that is an analysis under the Vienna Convention on the Law of Treaties, and second the choice that she has made to answer six (plus one) specific questions in order to reach her own conclusions. Not only does a rigorous interpretation that follows the methodology of the Vienna Convention offer a new perspective for the exercise of classification of conflicts, but it also gives a broad overview which is enriched, at the same time, with numerous and often thought-provoking details. In parallel, the structure of the work, built around specific questions, gives the opportunity to open a dialogue. An opportunity that I seize in the following lines.

In the present contribution I have arbitrarily, but purposely, chosen to focus on two of the many issues that the author explores in order to analyze the act triggering an international armed conflict, namely the capture as an act that may trigger an international armed conflict and the necessity, or not, of identifying an animus belligerendi in order to classify a situation as international armed conflict. Within the structure of the book, the first is a sub-question of Question II regarding the nature of the triggering act and the second is a Question in such, namely Question VI regarding the necessity of an animus belligerendi. This choice has been made on purpose, since these two topics are among those with which I have dealt in my own research, but through a different prism, that is the temporal scope of applicability of international humanitarian law. Read the rest of this entry…

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EJIL Talk! Book Discussion: Some Considerations on Intervention Against Non-state Actors in Foreign Territory

Published on May 31, 2017        Author: 

This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.

Dr. Djemila Carron has penned a significant book devoted to international armed conflicts. The great merit of Djemila Carron is to have exclusively focused on the notion of international armed conflict while nowadays most of the publications tend to examine mainly the concept of non-international armed conflict. In the recent years, legal literature has paid little attention to international armed conflicts. Dr. Carron rectifies this trend and brings back to the forefront of the legal discussion the notion of international armed conflict. This is all the more important as contemporary belligerency shows that, more and more, current situations are characterized by the intervention of third states, multinational forces or coalition of states in pre-existing armed conflicts. This inevitably raises questions about their characterization for the purposes of IHL.

Many issues covered by Djemila Carron’s book could have been the subject of legal discussions but within the framework of this brief post (which cannot do justice to the numerous legal issues raised in the book), I would like to focus on one particular aspect of the analysis conducted in this deep and thorough research: transnational armed conflicts against non-state armed groups and their potential classification as international armed conflicts.

To sum it up in a few sentences, Djemila Carron establishes first a presumption according to which the unconsented-to armed intervention of a state in the territory of another constitutes an international armed conflict but qualifies this presumption as rebuttable. She then argues that the presumption can be rebutted in three distinct circumstances, one of them being when resort to armed force by the intervening state is exclusively carried against a non-state organized armed group in the territory of another State. In such scenario, and in the absence of direct confrontation between the armed forces of the intervening State and those of the territorial State, the situation would only qualify as a non-international armed conflict according to Djemila Carron even when the territorial State has not consented to the third State’s military intervention. In this regard, Djemila Carron’s position echoes those recently put forward by Terry Gill, Kenneth Watkin and Sean Watts. Read the rest of this entry…

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EJIL Talk! Book Discussion: L’acte déclencheur d’un conflit armé international – Introductory Post

Published on May 30, 2017        Author: 

This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.

Introduction

During the night of Thursday April 6 and Friday April 7 2017, the United States carried out airstrikes on a Syrian military base that had allegedly been used by the Syrian authorities to launch a chemical attack against its own population. As those airstrikes were, to the best of my knowledge, the first ones conducted by the United States that directly and deliberately targeted Syrian positions in Syria, the question that arose for many scholars, humanitarian actors and members of the military was the following: are the United States and Syria in an international armed conflict (IAC)? Or were they already engaged in such a conflict since the United States had been using force on the territory of Syria against the Islamic State since 2014? If there was no previous IAC between the United States and Syria on April 6, did those attacks add an IAC to the preexisting non-international armed conflict (NIAC) between the United States and the Islamic State? Did they transform (‘internationalize’) this preexisting NIAC into a IAC? Or should the attacks of April 6 and 7 fall outside the scope of international humanitarian law (IHL)?

Answering these questions, and more generally classifying hostilities, is crucial in international law. Indeed, rules applicable to an IAC – including the Geneva Conventions (GC), the first Additional Protocol (AP I), other treaties and provisions of international (and national) law and rules of customary law – create a legal framework significantly different from the one applicable in a NIAC or in the absence of a conflict. L’acte déclencheur d’un conflit armé international explores what act or acts might trigger an IAC. It uses Article 2 common to the GC as its starting point since this provision states that each of the four GC:

“shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”.

The notion of IAC being the main entry point for the application of the core treaties of IHL, and the concept of NIAC being closely linked to the one of IAC, means that understanding the triggering act of such a conflict is a preliminary question to almost any application of IHL. Read the rest of this entry…

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Book Discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international”.

Published on May 30, 2017        Author: 

The blog is happy to announce that over the next few days we will host a discussion on Djemila Carron’s book, “L’acte déclencheur d’un conflit armé international“. 

Djemila Carron is a lecturer at the Law Clinic on the rights of vulnerable people at the University of Geneva. She will kick off the discussion this afternoon with an introductory post about her book. Comments by Julia Grignon (Professor of the Faculty of Law at Laval University (Quebec)) and Dr. Tristan Ferraro (Senior Legal Advisor at the ICRC (HQ Geneva)) will follow. Djemila will then bring the discussion to a close with a response to the comments.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in – comments will of course be open on all posts.

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Ukraine v Russia (Provisional Measures): State ‘Terrorism’ and IHL  

Published on May 2, 2017        Author: 

On 16 January 2017, Ukraine filed an Application against Russia before the International Court of Justice (‘ICJ’ or ‘the Court’), founding the Court’s jurisdiction (in part) on the compromissory clause (Article 24) of the Terrorism Financing Convention (‘ICSFT’). On the very same day, Ukraine filed a Request for the indication of measures of protection. On 19 April 2017, in respect of the claim based on the ICSFT, the Request was rejected, although the Court did order provisional measures in support of the claim based on CERD.

The Application and the Court’s Order on provisional measures (‘Order’) have been the subject of several blog posts, including here,  here and here, and I will not revisit their content.  Instead, I’d like to further consider some of the issues raised by the Court’s refusal to award provisional measures in respect of the ICSFT.  As noted in the terrific post by Vincent-Joel on ‘Terrorism and the World Court’, this dispute presents an important opportunity for the Court not only to clarify the nature of certain counter-terrorism obligations, but equally to interpret the ICSFT in a ‘forward-looking and purposive’ manner which reflects the post-9/11 counter-terrorism climate.  It also bears noting that this case is an opportunity for the Court to address the increasingly common – and increasingly dangerous – State practice of materially supporting non-State armed groups (‘NSAGs’), even if, for jurisdictional reasons, it must do so through the prism of terrorism financing.

There are two substantive issues which were at stake in making the case for provisional measures that I want to address:  First, Ukraine had to establish the Court’s prima facie jurisdiction under the ICSFT, in part based on whether ‘the acts complained of […] are prima facie capable of falling within the provisions of [the ICSFT]’.  Second, given that most of the NSAG conduct underlying the Application took place within the context of an armed conflict (‘AC’), the characterization of that conduct as ‘terrorist’ and falling within the scope of the ICSFT, or as merely in breach of (or at least governed by) International Humanitarian Law (‘IHL’), is put in issue.  Read the rest of this entry…

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The Consequence of the UN Resolution on Israeli Settlements for the EU:  Stop Trade with Settlements

Published on April 4, 2017        Author: 

The recent UN Security Council Resolution 2334 (2016) reaffirmed that the establishment of Israeli settlements in the occupied Palestinian territory has no legal validity and that Israel’s settlement enterprise is a flagrant violation of international law. The resolution also calls upon all States “to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”. This part of the resolution is of great significance with regard to the question of trading with settlements.

While the content of the resolution might seem novel, Secretary of State John Kerry was right to remind us in his landmark speech on the Israeli-Palestinian conflict at the end of 2016 that:

this resolution simply reaffirms statements made by the Security Council on the legality of settlements over several decades. It does not break new ground”. In 1980 UN Security Council Resolution 465 had called upon all States “not to provide Israel with any assistance to be used specifically in connection with settlements in occupied territories.

Trading with settlements offers an economic lifeline that allows the settlement enterprise to survive and develop. This reality and the aforementioned UN Security Council Resolutions make a good case not to trade with settlements. But is the withholding of such settlement trade truly an obligation under international law?

In an earlier piece I argued that there is indeed such an obligation, and the lack of state compliance does not seriously shake the legal foundations of this argument. Just last year in an open letter, 40 legal experts (myself included) called upon the European Parliament, and the office of the High Representative and the Trade Commissioner to stop trade with settlements in compliance with the EU’s international legal obligations. Signatories included two former UN rapporteurs, a former President of the International Law Commission, a former judge on the ICTY, and dozens of professors in international law.

Our main argument was that the EU has the obligation to end trade with Israeli settlements based on the duties of non-recognition and non-assistance. This post will describe the legal argumentation underlying these duties. Read the rest of this entry…

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Arms Exports to Saudi Arabia in the High Court: what is a “serious violation of international humanitarian law”?

Published on April 3, 2017        Author: 

As readers will be aware, the UK High Court is presently considering a high-profile case challenging UK arms exports to Saudi Arabia. Arguments in the judicial review proceedings brought by Campaign Against Arms Trade were heard in February and judgment is awaited.

Although brought under English law, the case potentially implicates various international law questions. This post focuses on the interpretation of the expression “serious violation of international humanitarian law” (“IHL”) which the government appears to be advancing in the case. By narrowing the concept to include only war crimes, its position has significant implications for the international law regulation of the arms trade in general. This post will argue that the proposed definition should be rejected.

For further information on this and other international law issues arising in the case, the claimant has posted much of the open documentation produced by both sides on its website. This post draws heavily on those documents, and on the author’s notes of the open hearings.

The Issue Before the Court

The claimant challenges the government’s decisions to continue granting licences (and not to suspend existing licences) for arms exports to Saudi Arabia. That challenge is based primarily on alleged breaches of IHL by Saudi forces involved in the ongoing armed conflict in Yemen. Criterion 2(c) of the UK statutory guidance applicable to arms exports (the “Consolidated Criteria”) prohibits granting a licence “if there is a clear risk that the items might be used in the commission of a serious violation of international humanitarian law”. The claimants argue that given the evidence of previous breaches, the government should have concluded that such a clear risk existed. Read the rest of this entry…

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North Korea and the Law on Anticipatory Self-Defense

Published on March 28, 2017        Author: 

Media reports over the last few weeks indicate that the already tense relationship between North Korea and the United States is getting worse. Now that North Korea is nearly ready to test an intercontinental ballistic missile, the United States has said that it will get more confrontational. U.S. Secretary of State Rex Tillerson even suggested that U.S. military action against North Korea is “on the table.” Such talk is sometimes part of a broader strategy to pressure other countries to negotiate, whether at the Security Council or elsewhere. But it can also be a precursor to war. And it comes at an acute time for the law on anticipatory self-defense.

As readers of this blog no doubt know, Article 51 of the UN Charter recognizes that states have an “inherent” right to use force in self-defense “if an armed attack occurs.” There is an ongoing debate about whether and, if so, when Article 51 permits states to use force to avert an attack that has not yet occurred. Claims for interpreting Article 51 expansively—to permit defensive force even if the attack is only speculative—have been made with respect to “rogue” states that are developing nuclear weapons. In this post, I situate the North Korea case within that debate and explain why the United States might find it to be a particularly challenging case in which to press its expansive claim.

I. The Law on Anticipatory Self-Defense

A. A Restrictive Position

 The majority view on anticipatory self-defense is probably a restrictive one: that anticipatory self-defense can be lawful only if an attack is truly “imminent”—as in, about to occur. Under this view, states may not use force unilaterally to nip in the bud latent threats or attacks that are still conjectural. They must instead address those situations using non-forcible means or by obtaining the UN Security Council’s authorization. Read the rest of this entry…

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