Geoff Corn and Guglielmo Verdirame take part in Transatlantic Dialogue on International Law and Armed Conflict

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This week guglielmo-verdirame_0 Professors Geoff Corn (left, South Texas College of Law)j-corn and Guglielmo Verdirame (right, Kings College London & barrister at 20 Essex Street) contributed pieces in the joint blog series arising out of the Transatlantic Workshop on International Law and Armed Conflict held in Oxford this past July.

Geoff Corn’s piece, “Squaring the Circle: The Intersection of Battlefield Regulation and Criminal Responsibility”, was posted at Lawfare at the start of this week. In this thoughtful pose, Geoff says:

“I sought to highlight what I believe are several evidentiary and institutional complexities associated with subjecting commanders and other operational decision-makers to criminal accountability for battle-command judgments – complexities that will become more significant as cases focus increasingly on complex operational decision-making, particularly in relation to targeting.”

He raises a number of important issues relating to the feasibility of international criminal prosecutions to produce credible accountability decisions in relation to battlefield decision-making. One question he addresses, which is particularly novel but really important is this:

“[A] complicated aspect of criminal prosecution based on alleged unlawful targeting decisions is the relationship between LOAC/IHL presumptions and criminal burdens of proof. The presumption of innocence an axiomatic component of any fundamentally fair trial, and imposes on the prosecution the burden of production and the burden of persuasion. However, several LOAC/IHL targeting rules are based on presumptions which, when applied in the criminal context, arguably shift the burden of production to the defense.”

At the the end of the week, Guglielmo’s piece, “Taming War through Law – A Philosophical & Legal Perspective” , was posted on InterCross (the blog of the ICRC. Guglielmo begins his post in this way:

“The relationship between theory and practice in international law eludes easy explanations. In the history of international law there are examples of ideas shaping practice. But at times the phenomenon of international law – with its complex mix of state practice, adjudication and politics – finds directions not foreseen by any theory.

The application of human rights law to armed conflict may be a case in point. It emerged over the last two decades from the decisions of international and domestic courts without being preceded by a reflection – by jurists, policy-makers or others – on how human rights could contribute to regulating armed conflict. Can this development be accommodated within the system of international law or does it in some way challenge its architecture?”

His post then examines the work of Kant, Grotius and Hobbes, together with decisions of the European Court of Human Rights and the UK courts, in his survey of the question whether human rights law should apply to armed conflicts.


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Rogier Bartels says

September 19, 2014

Dear Dapo,

I agree with you that the presumptions issue that Geoffrey addresses is "important", but it is not "novel": I addressed this issue before in my chapter in the liber amicorum for Avril McDonald (see here:, at p. 345-346) and an article in the Israel Law Review (, at pp 278-279). Also, Nobuo Hayashi made a similar observation ( , pp 76-84).

In the aforementioned chapter, I wrote:

IHL and ICL have different objectives. Whereas the former aims to regulate warfare and thereby to mitigate the suffering resulting therefrom,23 the latter seeks to counter the impunity of those having violated the rules of IHL in such a manner as to give rise to individual criminal responsibility.24 In striving to limit suffering in times of armed conflict, IHL has an in-built presumption of protection: only those who qualify as combatants or take a direct part in hostilities can be targeted. In case of doubt about the status of a person or object, IHL proscribes that the person or object concerned is to be considered as protected and thus cannot be attacked.25 Under ICL, those who are alleged to have committed international crimes, by inter alia breaching IHL, are prosecuted. One of the essential principles of criminal law thus forms part of ICL: the presumption of innocence.26 As a corollary of this principle, the prosecution has to prove beyond reasonable doubt that the accused has committed the crimes as charged. In doing so, another corollary of this principle, in dubio pro reo, requires that "the accused is entitled to the benefit of doubt as to whether the offence has been proven".27 If then, an accused is charged with directly attacking civilians not directly participating in hostilities or persons hors de combat, the prosecution has to prove that the alleged victims could not legitimately be attacked for being combatants or for directly participating in hostilities, and therefore were not, at the time of the attack, protected by IHL. On this issue, the ICTY has found that the prosecution "must show that a reasonable person could not have believed that the individual he or she attacked was a combatant".28 The presumption of protection as defined in IHL thus—for obvious and understandable reasons—works in reverse in ICL.29 IHL’s aim to protect those not or no longer taking part in hostilities then ‘clashes’ with the protection under criminal law of the accused’s right to a fair trial.

Accompanying footnotes:

23 Fleck 2008, p. 11; Kalshoven 2011, p. 2.
24 Cryer et al. 2010, p. 1; Werle 2009, pp. 29–36.
25 See Articles 45(1) ("Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal."), 50(1) ("In case of doubt whether a person is a civilian, that person shall be considered to be a civilian."), and 52(3) ("In case of doubt whether an object which is normally dedicated to civilian purposes […] is being used to make an effective contribution to military action, it shall be presumed not to be so used.") of Protocol (I) Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 9 December 1978) 1125 United Nations Treaty Series 3 (hereinafter: Additional Protocol I),
26 See Article 21(3) ICTY Statute, Article 20(3) ICTR Statute, and Article 66 Rome Statute.
27 ICTY, Prosecutor v. Delalic et al., Case No. IT-96-21-T, Judgement, 16 November 1998 ("Delalic et al. Judgement") para 601. See generally Raimundo 2008, pp. 110–111.
28 ICTY, Prosecutor v. Stanislav Galic, Case No. IT-98-29-T, Judgement, 5 December 2003 ("Galic´ Judgement"), para 55.
29 This challenge obviously also exists for the adjudication of violations of IHL on the national level. See on the issue of the civilian presumption and the principle of in dubio pro reo, Hayashi 2006, pp. 76–84, which also includes a discussion on the approach taken by the ICTY with regard to "doubt" as to direct participation and prisoner of war status.

(M. Matthee et al. (eds.), Armed Conflict and International Law: In Search of the Human Face, pp 345-346)

Jordan says

September 19, 2014

I wonder whether Guglielmo considered Un Charter, arts, 55(c) and 56 and the Article 103 override of law of war treaties and/or human rights jus cogens (which must, of course, have primacy over treaty-based and customary laws of war that are not themselves norms jus cogens).