magnify
Home Archive for category "International Humanitarian Law" (Page 5)

What Level of Human Control Over Autonomous Weapon Systems is Required by International Law?

Published on May 17, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Introduction

Autonomous weapon systems [AWS] raise profound legal, ethical and moral concerns. Scholars have asked, for example, whether AWS can comply with international humanitarian law [IHL]; whether their use will lower the threshold on the use of force and undermine jus ad bellum rules and whether their deployment will create an accountability gap in violation of victims’ rights to remedy. While there is no agreed definition of AWS, the United Kingdom House of Lords’ recent report carries definitions that generally describe AWS as robots that, once activated, are able to make targeting decisions without further human intervention.

In the recent United Nations Group of Governmental Experts [GGE] meeting [9-13 April] on Lethal Autonomous Weapon Systems, States reiterated the need to maintain human control over AWS. Notwithstanding the general consensus on maintaining human control over AWS, there is no agreement on the nature of that human control or how it should be defined.

Issues surrounding the concept of human control

The 2018 GGE meeting brought to fore a number of questions on how human control should be defined. States submitted a number of ideas and suggestions. Organisations like the International Committee of the Red Cross noted both legal and ethical reasons why human control must be maintained. Likewise, the International Panel on the Regulation of Autonomous Weapons discussed military and philosophical perspectives on the notion of human control.

Now that various disciplines – e.g. military, law, ethics, religion, philosophy etc. – have standards that are relevant to the notion of human control over AWS, the paramount question is which standard(s) should determine an acceptable level of human control and why? While States and scholars may cite innovative ideas and standards upon which to define the concept of human control, it is paramount to distinguish between relevant standards and those that are obligatory or legally binding upon States. The later ought to serve as the yardstick. Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on What Level of Human Control Over Autonomous Weapon Systems is Required by International Law?

Prolonged Occupation or Illegal Occupant?  

Published on May 16, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

An unresolved question in international humanitarian law is whether an occupying power – whose authority as occupant may have initially been lawful – can cross a bright red line into illegality because it is acting contrary to the fundamental tenets of international law dealing with the laws of occupation.  This question has become especially relevant in light of several prolonged occupations in the modern world, including the 50-year-old Israeli occupation of the Palestinian territory.

The principal instruments of international humanitarian law, including the 1907 Hague Regulations, the 1949 Fourth Geneva Convention and the 1977 Additional Protocol to the Geneva Conventions, are silent on this question. However, a purposive reading of these instruments, together with the foundational tenets of international humanitarian and human rights law, leads to the conclusion that an occupying power whose intent is to turn occupation into annexation and conquest becomes an illegal occupant.

In my October 2017 report to the United Nations General Assembly as Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, I argue that a four-part test can be derived from general principles of international law, including the laws of occupation, to determine whether the status of an occupying power has become illegal. Violating any one of these four parts of the test could establish the occupying power as an illegal occupant. Read the rest of this entry…

Print Friendly, PDF & Email
 

OPCW Confirms the Identity of the Chemical Agent in Salisbury Attack

Published on April 13, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

The OPCW Technical Secretariat released yesterday the findings of its investigation into the Salisbury affair. The report confirms the UK account of the nerve agent, without however specifically naming it in the unclassified executive summary; it also states that the agent was of a high purity, implying its manufacture by a state, but without naming Russia as the source (much in the same way as the UK’s own chemical weapons lab). Here are the key bits:

8. The results of analysis of biomedical samples conducted by OPCW designated laboratories demonstrate the exposure of the three hospitalised individuals to this toxic chemical.
9. The results of analysis of the environmental samples conducted by OPCW designated laboratories demonstrate the presence of this toxic chemical in the samples.
10. The results of analysis by the OPCW designated laboratories of environmental and biomedical samples collected by the OPCW team confirm the findings of the United Kingdom relating to the identity of the toxic chemical that was used in Salisbury and severely injured three people.
11. The TAV team notes that the toxic chemical was of high purity. The latter is concluded from the almost complete absence of impurities.
12. The name and structure of the identified toxic chemical are contained in the full classified report of the Secretariat, available to States Parties.

UPDATE: See also this letter from the UK National Security Advisor to the NATO Secretary-General, providing some previously classified intelligence about the Skripal poisoning.

Print Friendly, PDF & Email
 

The Salisbury Attack: Don’t Forget Human Rights

Published on March 15, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

It is fascinating to observe how international law has provided the frame for the escalating political dispute between the UK and Russia regarding the attempted murder of Sergei Skripal and his daughter with a nerve agent in Salisbury. The dispute is of course primarily factual. In that regard, both states generate their own facts, and the dispute revolves primarily on whom one chooses to trust – what does the average citizen (or international lawyer) know, after all, about the Novichok-class of nerve agents, their deployment, properties and effects? The attribution of the attack will thus inevitably depend on the credibility of the relevant experts, investigators and intelligence officials.

But again – note the framing effect of international law on this dispute. We saw how Theresa May chose her language very carefully when she accused Russia of an unlawful use of force (but not necessarily an armed attack). Both the UK and Russia have accused each other of failing to abide by the Chemical Weapons Convention. Russia has challenged the credibility of the UK’s investigation, asking for the involvement of the OPCW as an independent, expert and competent third party. The UK itself has engaged with the OPCW, asking it to verify its forensic analysis. The debate in the Security Council yesterday was replete with references to the Convention and OPCW specifically and international law generally. So was the debate earlier in the day in the British Parliament (Hansard transcript).

There is, however, one part of international law that has been largely and unjustifiably missing from this debate, and that is human rights. The attempted killing of Mr Skripal and his daughter is not simply  a violation of the UK’s sovereignty, as set out in today’s joint statement of the UK, US, France and Germany. It is a violation of these individuals’ right to life. In that regard, while I think the discussion that Marc Weller and Tom Ruys have so ably led about the de minimis thresholds (if any) of the concepts of the use of force in Article 2(4) and armed attack in Article 51 of the UN Charter is both interesting and very important, it is in my view somewhat distracting, as is the focus on chemical weapons. It is these two people (and others incidentally affected) who are the main victims here, not the British state. It is their rights in international law that we should primarily be concerned with, not those of the British state (or for that matter Russia). It is their life that was endangered, not that of the British state. And their right to life would have been no less harmed if they were simply shot or stabbed or even poisoned a bit more subtly by an FSB agent.

I am thus struck by the absence of public references to the violation of Skripals’ right to life. That, too, is I think calculated. The Prime Minister has repeatedly referred to the event as a (presumably domestic) crime; the UK ambassador to the UN has also said that ‘[t]he reckless act in Salisbury had been carried out by those who disregarded the sanctity of human life.’ But neither the Prime Minister nor the ambassador directly accused Russia of failing to comply with its obligations under human rights law. Why? Because if they did so, they would effectively be arguing that Russia’s obligations under say the ICCPR and the ECHR extend extraterritorially to a killing in the UK. And that, recall, is not what the British government wants to do, because it does not want to have to comply with these obligations if it used kinetic force abroad to kill an individual in an area outside its control, say by a drone strike.

Here, in other words, we can also see how international law shapes the arguments that are used, or not used. I have long argued that the 2006 killing of Alexander Litvinenko was – as far as the extraterritorial application of human rights was concerned – not legally distinguishable from cases of aerial bombardment a la Bankovic. The same goes for last year’s macabre killing of Kim Jong-nam in Malaysia, at the orders of his half-brother, the North Korean dictator. And the same is true here. Those arguing for a restrictive application of human rights – as the US and UK governments have both done – must be aware of the consequences of doing so. That argument necessarily implies that the interests of individuals like the Skripals, attacked so brutally by a hostile state, are not protected at all in international law. That vision of international law, in which individuals are the mere objects, and not subjects, of its regulation, is not terribly attractive, even – especially even – in 2018. And so I say: when talking about Salisbury, whether it is this Salisbury or some other Salisburys, don’t forget human rights.

Print Friendly, PDF & Email
 

An International Use of Force in Salisbury?

Published on March 14, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

In the afternoon of Sunday, 4 March, Mr Sergei Skripal and his daughter Yulia were found slumped on a park bench in Salisbury. Mr Skripal is a former Russian agent convicted of espionage for the West, exchanged in a spy swap and brought to live in the UK. He, his daughter and a number of individuals who had attended to them were found to have been exposed to a nerve agent known as Novichok. At the time of writing, both remained in critical condition in hospital, with uncertain prospects of recovery. One of the first responders, Detective Sergeant Nick Bailey, was also kept in hospital in a serious condition.

On 12 March the British Prime Minister addressed the House of Commons. She claimed that it was ‘highly likely’ that the government of the Russian Federation was responsible for the action. She asserted that ‘either this was a direct action by the Russian state against our country, or the Russian government lost control of its potentially catastrophically damaging nerve agent and allowed it to get into the hands of others.’ She demanded a ‘credible response’ by Russia within a day, indicating that, failing such a response, the UK would conclude that this action ‘amounts to an unlawful use of force by the Russian state against the United Kingdom.’ [The Prime Ministers statement can be viewed at http://www.bbc.co.uk/news/uk-43377856.]

The responsibility for the action was placed on the Russian Federation by the UK government in view of its previous suspected involvement in the assassination in the UK of former Russian security operative Alexander Litvinenko in 2006 using the similarly exotic means of radioactive polonium, instances of politically motivated killings allegedly undertaken by Moscow elsewhere, and Moscow’s perceived generally aggressive attitude towards the West, and the UK in particular, especially after its purported annexation of Crimea in 2014.

The Russia government dismissed the allegations and requested samples of the nerve agent in order to mount its own investigation, ignoring Ms May’s deadline. Moscow instead offered cooperation through the relevant mechanism of the Organization for the Prohibition of Chemical Weapons (OPCW). While Russia’s responsibility for the action will evidently remain contested, this post considers the claim of the UK government that it amounts to a ‘use of force’.

Read the rest of this entry…

Print Friendly, PDF & Email
 

Active Hostilities and International Law Limits to Trump’s Executive Order on Guantanamo

Published on March 13, 2018        Author:  and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

In his State of the Union speech on January 30, 2018, U.S. President Donald Trump announced his signing of a new executive order aimed at keeping open the U.S. detention facility at Guantanamo Bay, Cuba, as well as approving its repopulation. This post considers how the law of war governing detention in armed conflicts constricts the ability of the U.S. to hold persons in military prisons at Guantanamo in the manner suggested by this new order.

Formally speaking, Trump’s executive order repeals a critical portion of President Obama’s 2009 order calling for the Guantanamo prison site to be closed “as soon as practicable, and no later than 1 year from the date of this order.” The 2018 order also provides that the U.S. may “transport additional detainees” to the facility “when lawful and necessary to protect the nation.”

On the one hand, this executive order simply makes explicit what has already been President Trump’s de facto Guantanamo policy since taking office. While the Obama Administration worked to reduce the Guantanamo population considerably, resettling 197 of the 242 detainees remaining at the facility, President Trump has resettled none — not even five detainees cleared for release by the Department of Defense prior to Trump’s taking office. On the other hand, the order reflects a radical shift in policy. Read the rest of this entry…

Print Friendly, PDF & Email
 

Reinventing Multilateral Cybersecurity Negotiation after the Failure of the UN GGE and Wannacry: The OECD Solution

Published on February 28, 2018        Author:  and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

While the failure of cyber security negotiations under the auspices of the UN GGE has created a huge void in international regulation, recent cyber-attacks with global reach have shown that action is more urgent than ever. Reflection on standards, good practices and norms should include private sector actors who are often the first victims of cyber-attacks. We consider that the solution to the current vacuum in multilateral cybersecurity negotiations is the creation of a flexible and inclusive body within the OECD that would act as a hub for the various initiatives while promoting close cooperation between States, the private sector and civil society in order to promote standards of responsible conduct in cyberspace.

In recent years, States have tackled the problem of cyber security by multiplying initiatives in various intergovernmental organizations, be they universal organizations (such as the United Nations or the ITU) or regional or restricted organizations such as the European Union (with, for example, the recent cybersecurity package announced by the EU Commission in September), the Council of Europe, the OSCE, the OECD, the African Union, the Shanghai Cooperation Organization, NATO, ASEAN, the G7 or the G20. These initiatives are also developed in ad hoc frameworks specifically dedicated to cyber-security, where an impressive number of conferences are initiated by States, such as the Global Conference on Cyberspace (GCCS) which has launched the Global Forum on Cyber ​​Expertise (GFCE) – and this without counting academic initiatives such as the process that led to the adoption of the Tallinn Manuals 1 and 2 or the creation of Think Tanks like the Global Commission on the Stability of Cyberspace chaired by Marina Kaljurand (formerly Estonian Foreign Minister).

The failure of the UN GGE Read the rest of this entry…

Print Friendly, PDF & Email
 

Freeing up the Rules on The Treatment of Detainees from the Debate on the Geographical Scope of International Humanitarian Law

Published on January 3, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

A few weeks ago, my great friend Elvina Pothelet analysed, on this blog, the decision of the International Criminal Court (ICC) Prosecutor’s to request authorization to investigate, inter alia, acts of ill-treatment of detainees allegedly committed since 2002 by the CIA in black sites in Poland, Romania and Lithuania, in connection with the armed conflict occurring in Afghanistan. Elvina affirmed that there may be an added value in qualifying these alleged behaviours as war crimes, but she also hinted that such qualification might support the idea that International Humanitarian Law (IHL) applies globally, even outside the borders of the States where active hostilities take place. In this post I will argue that a wide geographical scope of application of the IHL rules on the treatment of detainees — especially those contained in common Article 3 to the Geneva Conventions and reflected in customary international law — does not necessarily imply an equally wide applicability of the rules on the conduct of hostilities.

To put my intervention in context, I should recall the obvious: a war crime presupposes a serious violation of an IHL rule. And for a rule of IHL to be applicable, there must be a sufficient link of correlation (so-called ‘nexus’) between the behaviour in question and an armed conflict (see ICTY AC, Kunarac, § 57 ff., referring to acts that are ‘closely related to the armed conflict’; see also Cassese). Although these sources refer to international criminal law (ICL), they build on the principle that IHL only applies to conducts and events which are sufficiently related to an armed conflict, as recognized e.g. in the ICRC Introduction to IHL, at pp. 28 and 59 (see also Practitioners’ Guide to Human Rights Law (HRL) in Armed Conflict, § 4.23). When such behaviour occurs outside the theatre of hostilities — e.g. where acts of torture were allegedly perpetrated in Poland/Romania/Lithuania, but the supposedly related hostilities took place in Afghanistan — one should ask whether such ‘sufficient nexus’ exists and, additionally, whether are there any geographical limitations to its establishment. In other words, is IHL applicable to conduct or an event as soon as it is sufficiently connected to an armed conflict, regardless of the territory where it took place (as contended, e.g., by Lubell-Derejko)? Or should the applicability of IHL be limited only to behaviour occurring in the area where active hostilities are being fought, or in the territory of a State party to the conflict (as deemed preferable by the ICRC in its 2015 report, at p. 15)?

Like ‘global battlefield’ theorists, I am convinced that geographical considerations per se do not necessarily limit the applicability of IHL. But, as also accepted by Lubell and Derejko, I believe that they are a fundamental factor to be taken into account when assessing the existence of the necessary nexus between an event under scrutiny and an armed conflict. Geographical distance from the actual conflict may be an indication that the relevant conduct or event is sufficiently ‘closely related to the hostilities’. And that is where I think the difference between the rules on the treatment of detainees and other IHL rules (especially those on the conduct of hostilities) lies. Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on Freeing up the Rules on The Treatment of Detainees from the Debate on the Geographical Scope of International Humanitarian Law

Understanding the Use of Zones and the Concept of Proportionality: Enduring Lessons from the Falklands War

Published on December 13, 2017        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

On 2 April 1982 Argentina invaded the Falkland Islands (alternatively, the Islas Malvinas). The resulting conflict lasted 74 days and claimed the lives of 255 UK military personnel and 652 Argentine servicemen. The conflict raises a myriad of legal issues but at its core is the issue of sovereignty (here). However complicated the issue, disputes over sovereignty did not legally authorise the Argentine invasion (see UNSCR). This post will not go over the vexed issue of sovereignty but will instead focus on two select issues relating to the conduct of hostilities. The Falklands War has largely receded from thought but lingering doubts over the legality of a Total Exclusion Zone (TEZ) established by the UK and its torpedoing of the Belgrano endure. By focusing on the issue of zones and the concept of proportionality this post will seek to provide clarity to two often misunderstood areas of law that are of vital importance to contemporary military operations.

The UK Total Exclusion Zone

A few days after the Argentinian invasion the UK issued a notice indicating that, from 12 April 1982, a Maritime Exclusion Zone (MEZ) would be in force, extending 200 nautical miles from the centre of the Falklands. On 28 April, the UK declared a TEZ that encompassed the same geographical area as the MEZ but was broader in scope regarding ratione personae.  In essence, the TEZ stated that any ship or aircraft entering the TEZ that was not authorised to be there by the UK Ministry of Defence was deemed to be operating in support of the occupation, regarded as hostile, and therefore liable to attack. Read the rest of this entry…

Print Friendly, PDF & Email
 

A “Compliance-Based” Approach to Autonomous Weapon Systems

Published on December 1, 2017        Author:  and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

A Group of Governmental Experts (GGE) on the topic of Lethal Autonomous Weapons (LAWS) concluded its first meeting in Geneva on 17 November 2017. The meeting was held under the auspices of the Convention on Certain Conventional Weapons (CCW) and built upon on three informal meetings of experts held between 2014 and 2016 (for reports of those meetings, see here). In December 2016, the Fifth Review Conference of the High Contracting Parties of the CCW had tasked the GGE “to explore and agree on possible recommendations on options related to emerging technologies in the area of LAWS” (see Decision 1 here and the agreed recommendations contained in this report).

At the heart of the debate is the question how States should respond to the emergence of such weapons. While some highlight legal, ethical or moral concerns of delegating life and death decisions to machines and advocate for a preventive prohibition of autonomous weapons systems, others pinpoint potential benefits for the way wars are fought in the future and deem any policy options, including regulation, to be premature.

As often in such multilateral discussions, it is hard to make progress and to get all States to agree on a common approach. The topic of autonomous weapon systems is no different. Indeed, perhaps it is particularly difficult because we do not yet fully understand what robotics and artificial intelligence truly harbor for the future of warfare, and for humanity in general. In an initial step, the GGE in its first session affirmed that international humanitarian law (IHL) applies to all weapons, including the potential development and use of autonomous weapon systems, and that responsibility for their deployment remains with States (see report here). This is a welcome step but obviously cannot be understood to exhaust the topic.

In an effort to generate momentum and identify common denominators, Switzerland presented a working paper at the beginning of the GGE, in which it is argued that ensuring compliance with international law, notably IHL, could and should be common ground among States and that this could form a constructive basis for further work. Accordingly, it should, at least as one element, be central to discussions of the GGE about autonomous weapon systems and should figure prominently in the report of the GGE as well as in the way forward. In the following, we recapitulate requirements for compliance with IHL and on that basis identify elements for a “compliance-based” approach aimed at advancing the debate within the CCW in an inclusive and constructive manner. Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on A “Compliance-Based” Approach to Autonomous Weapon Systems