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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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WTO Dispute on the US Human Rights Sanctions is Looming on the Horizon

Published on January 31, 2019        Author: 
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At the turn of the year, Venezuela initiated a WTO dispute with the United States. In a nutshell, Venezuela questions WTO-consistency of a number of coercive trade-restrictive measures (economic sanctions) imposed by the United States. Some of those restrictions were allegedly imposed on the human rights grounds.

US sanctions against Venezuela

The United States has been consistently imposing trade-restrictive measures against Venezuela, yet none of them has ever been challenged at the WTO. Most likely, the last wave of such restrictions is a spark that lit the fuse. In recent years, the Trump Administration introduced additional restrictions on Venezuela’s financial sector, leaving the country’s finances in shambles, as well as sanctions directed against the country’s gold sector. According to the media reports published in January 2019, the United States considers even tougher sanctions, particularly the ones that can impede Venezuela’s oil industry.

Human rights sanctions against Venezuela

The United States is notorious for its practice of economic coercion, which has been debated at length within the international community. Economic measures imposed to promote human rights entered the US foreign policy agenda under President Carter. In the following decades, the US has made ample use of them. 

In December 2014, the US Congress enacted the Venezuela Defense of Human Rights and Civil Society Act of 2014. The enactment of the act was triggered by a number of events, particularly by the deteriorated living standards and the violent crackdown on the anti-government protesters. The act authorizes the President to impose various targeted sanctions, – sanctions against current or former government officials responsible for acts of violence or serious human rights abuses against protesters. The ambit of such sanctions includes blocking of assets of the designated individuals as well as travel restrictions. In pursuit of its authority, President Obama declared the national emergency in respect of the situation in Venezuela and issued an Executive Order 13692 of March 8, 2015, which implements the aforesaid human rights sanctions.

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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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A Frontstop Approach to the Backstop Conundrum

Published on January 29, 2019        Author: 
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The EU, understandably, wants to preserve the integrity of its customs and regulatory territory. The UK and Ireland wish to preserve, post Brexit, the integrity of the Good Friday agreement which implies an open border between the Union and a non-Member State. Herein is born the famous “Backstop” conundrum – the solution ‘de jour’ being the UK remaining in a Customs Union with the EU. 

Like many Europeans I find the thought of the Union without the UK distressing and a no-deal exit even more so. But one should not therefore obfuscate the terms of the ongoing debate. 

A Customs Union, we all know, comes with a price – notably the inability of the UK to conclude independent trade agreements – a price not all Brexiteers are willing to accept, at least not as a permanent arrangement or at least not as something forced upon them deus ex machina. It is also unlikely that the Union would allow the UK to have more than a consultative voice in future EU trade agreements which, of course, would bind such a Customs Union. Another unpalatable dish.  

But all this, we are told, will disappear when Final Status negotiations between the EU and the UK will conclude.  

The notion that final status talks will bring an end to a Customs Union Backstop  obscures one very uncomfortable catch 22 truth. The need for the Backstop will disappear if, and only if, the final status talks result in the UK remaining, one way or another, de jure or de facto,  in an EU Customs Union applying the Common External Tariff!

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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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Announcements: UN Audiovisual Library of International Law; PhD Summer School; CfP The Legitimacy of International Investment Law and Arbitration; Frankfurt Investment Law Workshop; Junior Faculty Forum for International Law; International Workshop on the Protection of the Environment in Relation to Armed Conflict; The International Institutional Lawyer as Scholar and as Practitioner

Published on January 27, 2019        Author: 
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1. New Addition to the UN Audiovisual Library of International Law. The Codification Division of the Office of Legal Affairs recently added the following lecture to the Lecture Series of the United Nations Audiovisual Library of International Law (AVL) website: Mr. Carlos Espósito on “State Immunity and Human Right” (in Spanish). The Audiovisual Library is also available as an audio podcast, which can be accessed through the preinstalled applications in Apple or Google devices, through Soundcloud or through the podcast application of your preference by searching “Audiovisual Library of International Law”. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

2. PhD Summer School. iCourts – Centre of Excellence for International Courts, University of Copenhagen and PluriCourts will host their 7th PhD Summer School 17 – 21 June 2019. The PhD Summer School is a high-level Summer School for PhD students working on international courts in their social and political context. Are you willing to present your work and to share your intellectual curiosity with others this is the place for you? You will exchange and confront the thoughts of your thesis with people from around the world with different backgrounds, while being guided by expert researchers and professors. Deadline for application is 1 February 2019. For more information, see here

3. Call for Papers: The Legitimacy of International Investment Law and Arbitration in Protecting Human Rights. LEGINVEST and PluriCourts, in collaboration with Monash University and the Minerva Center for Human Rights at the Hebrew University of Jerusalem, are organizing an international symposium on the legitimacy and increasingly important role for international investment law and arbitration in the protection of international human rights (4 – 5 September 2019 in Oslo). This  workshop/symposium invites papers from a wide array of perspectives and disciplines, focusing on the questions of synergetic linkages between investment law and human rights law and how that can be achieved. Comparative, empirical and cross-disciplinary work is especially welcome. Deadline for submitting an abstract is 1 March 2019. Read the Call for Papers hereRead the rest of this entry…

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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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