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Home Archive for category "International Humanitarian Law" (Page 2)

Strengthening Compliance with IHL: Back to Square One

Published on February 14, 2019        Author: 
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Between 2012-2015 a series of meetings with states were organised by the ICRC and the Swiss government in the framework of a consultation process aimed at Strengthening Compliance with IHL. This consultation process (discussed here) was based on Resolution 1 of the 31st International Conference of the Red Cross and Red Crescent (IC), which invited the ICRC to undertake research, consultation and discussion with states in order to identify ways and means to ‘enhance and ensure the effectiveness of mechanisms of compliance with IHL’. During the meetings, consensus appeared to emerge on the possibility to create a new IHL compliance mechanism; a voluntary and non-politicized Meeting of States. This mechanism would provide a forum for dialogue and cooperation among states relating to IHL implementation and could serve as the institutional structure for other elements of a future compliance system, e.g. voluntary periodic reporting and thematic discussions. Unfortunately, states failed to agree on this new mechanism during the 32nd IC in 2015. Resolution 2 of the Conference therefore recommended that the intergovernmental process be continued in order to seek agreement on the features and functions of a potential forum of states.

The latest meeting of states in the context of this consultation process took place between the 3rd-5th December 2018, where states failed to reach consensus on the elements of this new IHL mechanism. States agreed that the ICRC and the Swiss Government will produce a ‘factual report’ on the progress of the inter-governmental process and will present it in the final formal meeting of States in March 2019. After that, the consultation process will be concluded bringing us back to square one. Given these developments, this blog post will discuss the existing compliance mechanisms under the 1949 Geneva Conventions (GCs) and Additional Protocol I (API) and assess their ability to monitor compliance with IHL.

First of all, it should be noted that there are no reporting obligations for states parties to the GCs and API, while meetings of the High Contracting Parties are only provided in API. Such meetings, which can be set up once approved by the majority of states parties to the Protocol, have never been convened. This is unfortunate considering that forums of exchange among states have proven pivotal to the adoption of additional supervisory mechanisms, particularly in the case of treaties with weak systems of compliance. This is the case for the 1980 Convention on Certain Conventional Weapons, which only provided for a Review Conference designed to take place every five years; its Conferences were successful in establishing meetings of the High Contracting Parties and reporting obligations as additional layers of treaty supervision. Read the rest of this entry…

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India’s Strange Position on the Additional Protocols of 1977

Published on February 5, 2019        Author: 
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After four decades of their adoption, India continues to have an ambivalent position on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, and the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. India has not yet become a party to the two Additional Protocols (APs). While it has not explained anywhere its position for not becoming a party, its recent clarification in the form of an answer in the Indian parliament does not provide any reasons for not becoming a party to the APs. This clarification came in the way of a response by the Minister of State for External Affairs to a question posed in the lower house of the Indian Parliament on 02 January 2019. The question posed by a Member of the Parliament sought clarification as to whether steps have been taken to ratify the APs and if not, what are the reasons for not becoming a party, if necessary, with reservations. The question posed by a Member of the Indian Parliament is as follows:

(a) whether steps have been taken to ratify the Additional Protocol I and II to the Geneva Conventions;

(b) if so, the details thereof and the steps taken to bring domestic laws in compliance with the Protocols; and  

(c) if not, the reasons for abstaining in spite of the availability of the option of ”ratification with reservations”?

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Joint Symposium: Chatham House Paper on Proportionality in the Conduct of Hostilities

Published on February 4, 2019        Author: 
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This is the final post in our joint symposium arising out of the publication of the Chatham House report, Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment.

The new research paper published by Chatham House on Proportionality in the Conduct of Hostilities is a rigorous and thoughtful exposition of the civilian side of the notion of proportionality under international humanitarian law (IHL). This brief post focuses on three points that are raised by the paper: first, the way in which certain difficult questions concerning the reach of proportionality considerations are addressed; second, the question of the status of the natural environment; and third, the potential impact of the paper.

The proportionality calculus calls for a comparison of the expected incidental harm to civilians caused by an attack and the concrete and direct military advantage anticipated. Amongst the many difficult questions that arise from this formulation is the reach of the test, e.g. what type of harm is included, psychological or only physical harm? When might harm be considered as having been ‘caused’ by an attack? Does it include so-called ‘reverberating’ harm, manifesting sometime after an attack (as in the case with unexploded cluster sub-munitions)?

The research paper addresses this question of the reach of the proportionality analysis through the dual test of admissibility and weight. This has the significant advantage of offering a more nuanced way of dealing with some of these complicated questions concerning the scope of the proportionality analysis. For example, on the question of reverberating harm, the paper takes the position that ‘the geographic or temporal proximity of the harm to the attack is not determinative’ and should not affect the admissibility of reverberating harm (para 63). Instead, ‘[f]actors such as the passage of time between the attack and the injury, or the number of causal steps between one and the other, may affect the likelihood of the harm occurring and thus the weight to be assigned to it’ (para 64). That reverberating harm, manifesting sometime after an attack rather than at the time of the attack, must be taken into account in assessing proportionality must be right – there is nothing in the Additional Protocol I (API) formulation of the proportionality test that suggests excluding such types of harm. The reference in API is simply to an ‘attack which may be expected to cause incidental’ civilian harm – as the paper states, harm is caused by an attack if, ‘but for’ the attack, the harm would not occur (para 45), regardless of any proximity considerations. Instead, the proximity of expected harm to the attack might be relevant to the weight to be given to that potential harm. Read the rest of this entry…

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Joint Symposium on Chatham House’s Report on Proportionality: Calibrating the Compass of Proportionality

Published on February 1, 2019        Author: 
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This is the third post in our joint symposium arising out of the publication of the Chatham House report, Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment, Calibrating the Compass of Proportionality, by Geoff Corn. The full post is available now over on Just Security.

Here’s a taster from Geoff’s post:

Every war results in civilian harm; though always tragic, it is a largely unavoidable result of armed conflict. For those who have not taken up arms or ordered others to do so, the fact that civilians seem to bear the brunt of war surely seems to reveal mankind at its worst. As James R. McDonough wrote in his influential “Platoon Leader: A Memoir of Command in Combat,” “[w]ar gives the appearance of condoning almost everything.” The reality is that rules governing armed conflict have never been more important. As McDonough also wrote,

[M]en must live with their actions for a long time afterward. A leader has to help them understand that there are lines they must not cross. He is their link to normalcy, to order, to humanity. If the leader loses his own sense of propriety or shrinks from his duty, anything will be allowed.

As McDonough so eloquently reminds us, military leaders need rules to manage the violence of war and in so doing protect those caught up in war from the moral abyss of lawless combat. IHL rules that regulate the conduct of hostilities provide these rules – the proverbial compass that enables the warriors to navigate the complex terrain of mortal combat. Like any compass, the more precise the calibration, the more accurate the navigation

Read the rest of Geoff’s post over on Just Security. Read the rest of this entry…

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Joint Blog Series on International Law and Armed Conflict: Are Sieges Prohibited under Contemporary IHL?

Published on January 30, 2019        Author: 
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Editor’s Note: This post the final post in the joint series hosted by the ICRC Humanitarian Law & Policy BlogEJIL Talk! and Lawfare, and arising out of the 6th Transatlantic Workshop on International Law and Armed Conflict held at the European University Institute in Florence in July.

Contemporary armed conflicts in Syria, Yemen or Iraq have seen a resurgence of sieges of cities and other densely populated areas. This ancient—some would say archaic or medieval—method of warfare is expected to be increasingly used in future urban conflicts. The catastrophic humanitarian consequences of recent prolonged sieges—such as in Ghouta (Syria), where civilians are starving because of lack of access to objects indispensable to their survival—have led to widespread condemnations by the international community (see e.g., UN Security Council Resolution 2139 (2014)). The question discussed here is what does international humanitarian law (IHL) say about siege warfare? Is it explicitly ruled out? How might IHL rules and principles constrain siege warfare?

No explicit IHL rules against siege warfare

Sieges are not per se an explicitly prohibited method of warfare under IHL. On the contrary, one could say that IHL implicitly allow sieges by merely mentioning steps to be taken to mitigate their negative effects on civilians and civilian objects (Art 27 1907 Hague Regulations; Art 15 GCI; Art 18 GCII; Art 17 GCIV).

Sieges have been used throughout history and military doctrine usually regards sieges as essential to the effective conduct of hostilities in order to control a defended locality and obtain surrender or otherwise defeat the enemy through isolation. Since sieges are a harsh method of warfare and are based on almost complete isolation of the besieged locality, their use will almost inevitably involve frictions with numerous rules and principles of IHL—at least when the besieged area involves civilian presence.

Numerous constraints on siege warfare

There are a number of IHL prohibitions that may constrain siege warfare. These include the prohibition against terrorizing the civilian population (Art 51(2) API; Art 13(2) APII; CIHL Study, Rule 2), the prohibition of collective punishment (Art 75 API; Art 4 APII; CIHL Study, Rule 103) or the prohibition of human shields (Art. 51(5) API; CIHL Study, Rule 97). The most obvious prohibition that impacts siege warfare, however, is the prohibition of starvation of civilians (Art 54(1) API; Art 14 APII).There is also a question as to whether conduct of hostilities rules, and the principle of proportionality in particular, may serve as an additional constrain on siege warfare Article 51(5)(b) of API CIHL Study, Rule 14). The present blog post will focus on the latter two—the prohibition against starving civilians, purposefully or incidentally, and the principle of proportionality.   Read the rest of this entry…

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Joint Symposium on Chatham House’s Report on Proportionality: “Proportionality and Doubt”

Published on January 29, 2019        Author: 
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This is the second post in our joint symposium arising out of the publication of the Chatham House report, Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment, Proportionality and Doubt, by Adil Haque. The full post is available now over on Just Security.

Here’s a snippet from Adil’s post:

The Report underscores the duty of commanders to do everything feasible to verify that proposed attacks will not violate the proportionality rule (see here, here, and here). This duty seems to imply that a commander who tries but fails to verify conformity with the proportionality rule must refrain from attack. Among other things, it would seem to weaken a commander’s incentives to do ‘everything feasible’ if her failure to verify were instead to be rewarded with freedom to attack.

This view also leads to results that are logical rather than unreasonable or absurd. Assume the following scenario:

Attackers verify that a building is a military objective. Attacking the building will almost certainly kill a number of people nearby.

Now consider two variations:

I) Attackers suspect that the people nearby are combatants, but remain in serious doubt. If the people nearby are civilians, then their expected deaths would be excessive in relation the military advantage anticipated.

II) Attackers verify that the persons nearby are civilian. However, their expected deaths would be neither clearly excessive nor clearly non-excessive in relation to the military advantage anticipated.

In variation I, attackers must presume that the people nearby are civilian (under API 50(1)) and therefore refrain from attack. To ignore their serious doubts and attack would seriously risk violating the proportionality rule. What about variation II? On the view we are exploring, attackers must again refrain from attack, for the same reason: to avoid serious risk of violating the proportionality rule

Read the rest of Adil’s post over on Just Security. Read the rest of this entry…

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Joint Symposium: Chatham House Report on Proportionality in the Conduct of Hostilities – Some Key Elements

Published on January 28, 2019        Author: 
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This is the first post in our joint symposium arising out of the publication of the Chatham House report, Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment. This piece is cross-posted on Just Security.

At the end of 2018 the International Law Programme at Chatham House published a report analysing the key steps in making assessments about proportionality under international humanitarian law, with a particular focus on incidental harm.  The rule of proportionality as formulated in Article 51 of Additional Protocol I of 1977 (AP I) requires belligerents to refrain from attacks ‘which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’.

The report addresses three sets of questions: first, the criteria of causation and foreseeability, the weight to be assigned to particular kinds of harm, and how to assess whether the expected incidental harm is excessive in relation to the anticipated military advantage; second, the types of incidental harm to be considered in proportionality assessments; and, third, a number of legal questions raised by the implementation of the rule in practice.

After putting the rule of proportionality into context, this blog post presents four of the points that the report seeks to clarify.  These are: the causation of the incidental harm and whether it is foreseeable; ‘knock-on’ or ‘reverberating’ harm; the types of injury to civilians to be considered; and the notion of ‘excessive’ incidental harm. Read the rest of this entry…

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Introducing Joint Symposium on Chatham House’s “Proportionality in the Conduct of Hostilities” Report

Published on January 28, 2019        Author: 
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Editor note: This piece is cross-posted on Just Security.

In December 2018, the International Law Programme at Chatham House published a report, “Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment,” analysing the key steps in making assessments about proportionality under international humanitarian law, with a particular focus on expected incidental harm to civilians and civilian objects.   

Chatham House prepared the report following a series of expert consultations, including participation from military and government lawyers, representatives of humanitarian organizations, and academics.  It also draws from review of IHL treaty texts, case law, and, to the extent practicable, military doctrine.

The report addresses three sets of questions about the rule of proportionality:  First, the report examines what it means for the harm to be caused by the attack and the concept of foreseeability of harm, the weight to be assigned to particular kinds of harm, and how to assess whether the expected incidental harm to civilians and civilian objects is excessive in relation to the anticipated military advantage.  Second, it analyses types of incidental harm to be considered in proportionality assessments.  Third, it explores vexing legal issues that arise in implementation of the rule in practice (such as the type of information commanders should assess in “after attack” battle damage assessments).

In collaboration with Chatham House, EJIL:Talk! and Just Security have invited leading international humanitarian law experts to contribute to a joint online symposium on key issues addressed in the report. Starting this afternoon, we will host the following series:

(1) Emanuela Gillard, Chatham House Report on Proportionality in the Conduct of Hostilities – Some Key Elements (EJIL: Talk! and Just Security)

(2) Adil Haque, Proportionality and Doubt (Just Security)

(3) Lawrence Hill-Cawthorne, The Chatham House Paper on Proportionality in the Conduct of Hostilities (EJIL: Talk!)

(4) Geoff Corn, Calibrating the Compass of Proportionality (Just Security)

 

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Joint Blog Series on International Law and Armed Conflict: Urban Warfare: The Obligations of Defenders

Published on January 26, 2019        Author: 
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The fifth post in our joint series hosted by the ICRC Humanitarian Law & Policy BlogEJIL Talk! and Lawfare, and arising out of the 6th Transatlantic Workshop on International Law and Armed Conflict, ‘Urban Warfare: The Obligations of Defenders’, by Aurel Sari available now over on Lawfare.

Here’s a taster from Aurel’s post: 

Should Rules be More Differentiated? Few rules of the law of armed conflict address the position of defenders in express terms and even fewer impose specific obligations upon them. But this should not be seen as a gap in the law. The distinction between defenders and attackers does not sit well with the general tenor of the law of armed conflict. In fact, many of its rules, such as the duty to take precautions under Article 57 of Additional Protocol I, are context-dependent and thus perfectly capable of imposing differentiated demands on defenders and attackers in line with their specific circumstances. Although not directly addressed to defenders, Article 58 of Additional Protocol I complements these general rules in the context of urban warfare by imposing an obligation on the parties to take precautionary measures to protect civilians and civilian objects under their control, as well as to avoid locating military objectives within or near densely populated areas.

The precautionary duties imposed by Article 58 are broad. Essentially, they demand whatever action is necessary to protect civilians and civilian objects against the dangers arising from military operations. […]

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Joint Blog Series on International Law and Armed Conflict: Medical Care in Armed Conflict

Published on January 25, 2019        Author: 
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The fourth post in our joint series hosted by the ICRC Humanitarian Law & Policy BlogEJIL Talk! and Lawfare, and arising out of the 6th Transatlantic Workshop on International Law and Armed Conflict, ‘Medical Care in Armed Conflict’, by Marco Sassoli is available now over on the Humanitarian Law & Policy blog (Part I and Part II). 

Here’s a snippet from Marco’s post: 

What constitutes acts harmful to the enemy by medical personnel is controversial. Most consider that the term is wider than that of direct participation in hostilities (see e.g., here at 411, here and here at 329). This is correct for medical units and transports for whom the concept is specifically used in the treaties. The phrase includes not only overt hostilities, but also sheltering able-bodied combatants or fighters.

In my view, however, persons lose their special protection only if they directly participate in hostilities. It is true that the above-mentioned examples of acts harmful to the enemy do not constitute direct participation in hostilities. However, this stems simply from the fact that the expression ‘acts harmful to the enemy’ was elaborated for medical units and establishments, while ‘direct participation in hostilities’ refers to persons. A hospital can obviously not directly participate in hostilities, but it can be used to commit acts harmful to the enemy if it shelters able-bodied combatants. Although I must admit that this interpretation remains subject to controversy, my opinion is that this same logic does not apply to medical personnel. That is, if medical personnel were to shelter an able-bodied combatant, this action should not be considered as an act harmful to the enemy entailing a loss of protection. Admittedly, my interpretation will raise controversy. For instance, driving an ammunition truck from a port to a place where the ammunition will be stocked does not constitute direct participation in hostilities (see here at 56), while most would argue that, if committed by medical personnel, it would be an act harmful to the enemy. However, this conclusion has only a limited practical impact, because regardless of who is driving the truck, the truck is may be targeted, as a legitimate military objective. And, the status of the driver is unlikely to outweigh the military advantage in making the proportionality assessment.

Read the rest of Marco’s post over on the Humanitarian Law & Policy blog (Part I and Part II).  Read the rest of this entry…

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