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ICRC Commentary of Common Article 3: Some questions relating to organized armed groups and the applicability of IHL’

Published on October 5, 2017        Author: 

This post is part of the joint blog symposium hosted by EJIL:Talk!, Lawfare and Intercross and arising out of the 5th Transatlantic Workshop on International Law and Armed Conflict held at the European University Institute in Florence this summer.

I was asked during our workshop to discuss some questions related to non-state armed groups raised by the chapeau of Common Article 3 (In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions) and the 2016 ICRC Updated Commentary to Geneva Convention I.

It is well known that for there to be a non-international armed conflict, the violence must involve an organized armed group.  So one of the first questions to arise in this context is what degree of organization of the armed group is required in order to trigger the application of international humanitarian law (IHL)?  

The 2016 ICRC Commentary acknowledges that Article 3 does not provide a detailed definition of its scope of application, nor does it contain a list of criteria for identifying the situations in which it is meant to apply. It is however uncontroversial that armed groups must reach a certain level of organization so as to be bound by IHL. As the well known definition of armed conflicts in the ICTY 1995 decision in the Tadić case reminds: ‘[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’ (Prosecutor v. Dusko Tadić (aka ‘Dule’), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), ICTY (Case No. IT-94-1), 2 October 1995, §70).

How to determine the appropriate level of organization seems to be the difficult question. Read the rest of this entry…

 

Joint Blog Series on International Law and Armed Conflict: Ashley Deeks on Common Article 3 and Linkages Between Non-State Armed Groups

Published on October 4, 2017        Author: 

The second post in our joint blog series arising from the 2017 Transatlantic Workshop on International Law and Armed Conflict, ‘Common Article 3 and Linkages Between Non-State Armed Groups’- by Ashley Deeks (University of Virginia School of Law) is now available over on Lawfare.

Here’s a snippet:

Assume State A finds itself in a NIAC with a NSAG – call it “Group X.”  What happens if and when another NSAG – call it “Group Y” – begins to provide certain assistance to Group X?  At what point does Group Y become part of the State A/Group X NIAC, and thus become subject to military force by State A?  This question has arisen in a variety of scenarios, including in the interactions between core al Qaeda and al Qaeda in the Arabian Peninsula and between al Qaeda and al Shabaab.

[…]

Approach 1 – State A should never treat Group X and Group Y as participating in single armed conflict.  Instead, State A should treat its fights with Group X and Group Y as two distinct NIACs.

[…]

Approaches 2 and 3:  These two approaches analogize from the concept of co-belligerency, which originated in international armed conflicts. Approaches 2 and 3 (described below) take different positions on what that concept requires.

[…]

Approach 3 – Assistance by Group Y to Group X in Group X’s NIAC against State A is enough to render Group Y a functional co-belligerent, even if Group Y does not directly engage in hostilities against State A.

[…]

Approach 4 – Use the ICRC’s “direct participation in hostilities” (“DPH”) factors to evaluate Group Y’s efforts in relation to the State A/Group X NIAC.

Read the full post on Lawfare.

 

 

Joint Series on International Law and Armed Conflict: Janina Dill on Assessing Proportionality

Published on October 11, 2016        Author: 

The final installment of our joint blog series arising out of the 2016 Transatlantic Workshop on International Law and Armed Conflict, ‘Assessing Proportionality: An Unreasonable Demand on the Reasonable Commander?’- by Janina Dill (London School of Economics) is now available on Intercross.

Here’s a snippet:

jdill-182Proportionality in International Humanitarian Law (IHL) demands that the attacker weighs incommensurate values: the concrete and direct military advantage anticipated to arise from an attack against the expected incidental harm to civilians and damage to civilian objects. It is common place that for that reason (amongst others) it is difficult to applyArticle 51(5)b of the First Additional Protocol to the Geneva Conventions and the corresponding principle of customary law to real world cases (here, here, here, here, here). The legal rule seemingly bends to endorse diametrically opposed interpretations of the same attacks; salient examples include some Israeli air strikes in the 2014 campaign in Gaza (hereand here). References to proportionality in the court of public opinion therefore often fan the flames of discord rather than adjudicate between diverging views. In the court of law, specifically in the chambers of the International Criminal Tribunal for the former Yugoslavia, proportionality has largely failed to add to the justiciability of unlawful attacks.

At the same time, proportionality – and indeed the task of comparing seemingly incommensurate values – are not unusual in law. What then is the problem with the principle of proportionality in IHL?

Proportionality according to the reasonable observer

A common approach to assessing an agent’s judgment of excessiveness is to look at it from the point of view of a “reasonable observer”. However, an empirical investigation of attitudes towards collateral damage yields anything but a concretization of what proportionate incidental harm looks like. When asked to put themselves in the place of a commander partaking in a mission to clear an Afghan village of Taliban fighters, 27% of British respondents and 20% of American participants in a survey I conducted in 2015 said they would not accept any foreseen civilian deaths as a side-effect of an attack meant to kill a group of Taliban fighters. At the same time, 17% of British and 21% of American respondents said they would accept however many casualties the attack would cause. 44% and 41% of the populations respectively hence rejected the very premise of proportionality in war: the prospect of a military advantage warrants a positive, but limited number of unintended, yet foreseen civilian casualties.

Read the full post over on Intercross. 

 
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Joint Series on International Law and Armed Conflict: Procedural Regulation of Detention 

Published on October 7, 2016        Author: 

The latest post in the Joint Series on International Law and Armed Conflict is by Lawrence Hill- Cawthorne on the procedural regulation of detention.

I am pleased to have been asked to write a short blog post to outline some of the issues I raised as a discussant for the panel on the procedural regulation of detention at the Fourth Transatlantic Workshop on International Law and Armed Conflict, which took place in Oxford this summer. This is of course an area in which we have recently seen considerable controversy and rapid developments in practice, with cases such as the Serdar Mohammed litigation (on which see here and here) and Hassan v UK (on which see here) dominating much of the recent debates.

The present post does not seek to repeat the above debates but instead it picks out a few controversial points from these much broader discussions that remain unresolved. Everything that is said here is explored in more detail in a recent book that I have written on this topic. The questions that I wish to address here are:

  1. In light of Hassan, which requires that, when making an assessment of compliance with international human rights law (IHRL) in an international armed conflict, a renvoi must be made to international humanitarian law (IHL), what controversies persist concerning:

    1. The review procedures for civilian internment and
    2. The procedural regulation of combatant internment?
  2. To what extent has the law of international and non-international armed conflict converged here?

Detention in International Armed Conflict

The Hassan judgment offered a view as to the relationship between the European Convention on Human Rights (ECHR) and IHL, reading into Article 5 ECHR the grounds and procedures governing internment under the latter regime. Though seemingly simple, the IHL rules on internment, and the European Court of Human Rights’ (ECtHR) reasoning in Hassan, leave a number of questions unanswered. Read the rest of this entry…

 
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Joint Series on International Law and Armed Conflict: Rachel VanLandingham on the Procedural Regulation of Detention in Armed Conflict

Published on October 6, 2016        Author: 

The fourth post in our joint blog series arising from the 2016 Transatlantic Workshop on International,’The Procedural Regulation of Detention in Armed Conflict’- by Rachel E. VanLandingham (Southwestern Law School, Los Angeles) is now available on Lawfare.

Here’s a snippet:

vanDuring our conference, I was asked to generate discussion regarding the procedural regulation of detention during armed conflict, particularly during non-international armed conflicts (NIACs). Though lawyers love process, there is a tendency for both soldiers’ and civilians’ eyes to glaze over when they hear the words “procedures,” as they invoke memories of mind-numbing bureaucratic process endured at one’s department of motor vehicles. Yet procedures are vitally important, as they transform values into reality; they are how fairness marries with pragmatism to produce just results. In wartime detention, they ensure exigent detention is reasonable, and work to satisfy fundamental notions of fairness; furthermore, giving process that is due helps reinforce the legitimacy and hence strategic efficacy of military operations. Establishing and following procedures is just as vital an endeavor in ensuring that individuals detained during armed conflict pragmatically should be detained and lawfully can be detained, as it is in ensuring militaries intentionally target military objectives and not civilians.

While detention is internationally recognized as “a necessary, lawful and legitimate”component of military operations, there remain serious legal gaps regarding how detention should be conducted in the most common type of war, those between states and non-state armed groups. While the Geneva Conventions provide robust, detailed rules regarding how and when to detain both civilians and combatants during international armed conflict (IAC), there is no equivalent for NIACs. It is in states’ best interest to remedy this gap, both to avoid repeating past gross abuses and pragmatically, because such procedures are directly linked to operational success.

The issues most relevant to procedural regulation of NIAC detention fall roughly into three categories: the legal authority to detain; standards of (reasons for) detention; and notification plus review mechanisms.

Read the rest over on Lawfare.

 
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Joint Series on International Law and Armed Conflict: The Obligation to Investigate Violations of IHL

Published on September 30, 2016        Author: 

This is the third post in our joint blog series arising out of the 2016 Transatlantic Workshop on International Law and Armed Conflict.

The author writes in his personal capacity, the views expressed in this post are his own, and not those of the Royal Navy or UK Ministry of Defence.

Introduction

Understanding the parameters of a state’s obligation to investigate alleged violations of international humanitarian law is crucial to both the legitimacy of armed forces, and their military effectiveness.   If a state was unwilling, or unable, to investigate egregious behaviour by their armed forces this would not only contravene their obligations under the Geneva Conventions it may lead to investigations by the International Criminal Court for those states parties to the Rome Statute, but also attract significant opprobrium.  Equally, in planning military operations, significant resources are often required to properly investigate alleged violations of IHL.  This in turn requires trained personnel in sufficient numbers to perform this function, and robust military doctrine and national legislation to guide it.  This brief paper seeks to explore the extent of the obligation to investigate alleged violations of IHL, what constitutes a ‘compliant’ investigation, and how this requirement interacts with the obligation to investigate in international human rights law.

1. To what extent does LOAC/IHL provide an obligation to investigate alleged violations?

International Armed Conflict

Rule 158 of the International Committee of the Red Cross’s Study on Customary International Law describes the obligation of states to investigate war crimes in the following terms:

States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.

The ICRC Rule 158 is reflected in numerous international instruments and supported by academic opinion. Additionally, the preamble to the Statute of the International Criminal Court recalls “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.”   Read the rest of this entry…

 
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Joint Series on International Law and Armed Conflict: Chris Jenks on Coalition Operations & the Obligation to Investigate IHL Violations

Published on September 28, 2016        Author: 

The third post in our joint blog series arising from the 2016 Transatlantic Workshop on International, ‘Coalition Operations and the Obligation to Investigate IHL Violations’- by Chris Jenks (SMU Dedman School of Law) is now available on Intercross.

Here’s a taste: 

chris-jenksThis post suggests that while the components of the obligation to investigate reasonably suspected international humanitarian law violations are, in most respects, well settled, their application in and to multinational coalition operations is under developed.  Thus far, that result seems to reflect not so much a lack of satisfactory answers on accountability in coalition operations but rather avoidance in asking the questions and acknowledging an inherent tension.

Obligation to Investigate

A number of IHL instruments imply an obligation to investigate alleged violations. Each of the 1949 Geneva Conventions, taken together, require High Contracting Parties to enact legislation to provide effective penal sanctions for those persons committing or ordering to be committed a grave breach; to search for those who commit a grave breach; and to take measures necessary to suppress all acts contrary to the Conventions other than grave breaches. Additional Protocol I to the 1949 Conventions requires military commanders of High Contracting Parties, “with respect to members of the armed forces under their command and other persons under their control, to suppress and where necessary to report to competent authorities breaches….” Finally, the “unquestionable customary norm” from Rule 158 of the Customary International Law Study’s that “States must investigate war crimes allegedly by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects.”

Read the full post over on Intercross.

 
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Joint Series on International Law and Armed Conflict: Monica Hakimi on Fair Trial Guarantees in Armed Conflict

Published on September 23, 2016        Author: 

The second post in our joint blog series arising from the 2016 Transatlantic Workshop on International, ‘Fair Trial Guarantees in Armed Conflict’- by Monica Hakimi (Michigan Law) is now available on Lawfare.

Here’s a taste:

hakimiThe fair trial protections that apply in non-international armed conflicts (NIACs) have received much less attention in recent years than have the protections on targeting and security detention. No doubt, this is because the basic contours of a fair criminal trial are generally not in dispute. Still, they raise a number of interesting questions. Here, I describe the current legal landscape and identify some issues that warrant further study.

A. The Regulatory Framework

The relevant treaty law can be laid out succinctly. The four Geneva Conventions, the two Additional Protocols, and human rights law all require that criminal trials be fair. The specific language and requirements of each instrument vary, but the key parameters are similar. (The relevant provisions are GCI art. 49; GCII, art. 50; GCIII arts. 84, 86, 99, 102–08; GCIV arts. 5, 64, 66–75, 117; common art. 3; API art. 75; APII art. 6; and ICCPR art. 14.)  In short, a court must: (1) be independent, (2) be impartial, and (3) afford defendants basic guarantees. A court is independent if it has the ability to conduct its business without undue external interference. It is impartial if its decisions rest on the evidence before it, without any predisposition toward one side or the other.

Common Article 3 does not list specific guarantees for criminal defendants in NIACs; it simply requires that defendants be afforded “all the judicial guarantees which are recognized as indispensable by civilized people.” Other treaty provisions identify what these guarantees might be. The provisions that apply in international conflicts, Additional Protocol II (which governs a subset of NIACs), and human rights law all require: (a) a presumption of innocence, (b) prompt notification of the offenses, (c) charges based on individual responsibility and offenses prescribed in law, (d) means to present a defense, (e) presence at trial, (f) a right against self-incrimination, and (g) notification of remedies. Three other guarantees are listed in the treaty provisions for international conflicts and in human rights law—but not in the provisions that specifically govern NIACs: (h) trial without undue delay, (i) open proceedings, and (j) no double jeopardy.

Read the full post over on Lawfare.

 
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Joint Series on International Law and Armed Conflict: Fair Trial Guarantees in Armed Conflict 

Published on September 22, 2016        Author: 

As noted yesterday, EJIL:Talk! together with Lawfare and InterCross are running a joint series over the next few weeks on International Law and Armed Conflict. The first post in the series is by Nehal Bhuta on fair trial guarantees in armed conflict.

The protection of fair trial rights during international and non-international armed conflicts might reasonably be seen as an area where the convergence between international humanitarian law (IHL) and international human rights law (IHR) is considerable, and in which the co-application of the two bodies of international law results in “interpretive complementarity” in respect of specific guarantees contained in both legal regimes. It should be noted at the outset that a person detained for the purposes of criminal prosecution during an international or non-international armed conflict is within the jurisdiction of the prosecuting state for the purposes of international human rights law whether the person is within the territory of the detaining state or not. At the same time,  that state may also be a detaining power, an occupying power or a party to a conflict on its own territory (even if part of that territory may be outside its effective control).

In this short post, I wish to raise for discussion areas of tension and uncertainty in the relationship between IHL and IHR in fair trial guarantees during an armed conflict. I first address the question of whether IHL countenances different understandings or interpretations of specific fair trial guarantees protected in both IHL and IHR. I then turn to the related question of whether derogation provisions can and should be invoked in order to give effect to IHL-based interpretations of a fair trial right over an IHR-based construction of the right. Finally, I examine some dilemmas associated with countenancing the possibility of courts constituted by armed groups as conducting fair trials under IHL.

Fair Trial Guarantees under IHL and IHR

The fair trial guarantees contained in IHL are expressed in the following general formulations found in the Geneva Conventions (GC) and Additional Protocols (AP I and II):  Read the rest of this entry…

 

Transatlantic Workshop on International Law and Armed Conflict: Introduction to a Joint Blog Series

Published on September 21, 2016        Author: 

In late July, a group of academic, military, and governmental experts from both sides of the Atlantic gathered at the University of Oxford for the fourth annual “Transatlantic Workshop on International Law and Armed Conflict”. The roundtable, held under the Chatham House Rule, and which this year included participants from Australia was held over two days and examined contemporary questions of international law relating to military operations.

This year’s event placed a particular emphasis not only on some substantive issues relating to the conduct of hostilities (such as targeting of “war sustaining” objects and the principle of proportionality), but on procedural obligations arising under the law of armed conflict. The procedural obligations discussed include the obligations of parties: to engage in review of the lawfulness of detentions in the armed conflict; to guarantee fair trials for those prosecuted for offences related to the conflict; and to investigate suspected violations of the law of armed conflict. Discussion of these procedural obligations focused on the content and scope of these obligations. The sessions also examined the extent to which these obligations apply to (and are capable of being fulfilled in) non-international armed conflicts and non-state armed groups. Inevitably, the sessions also considered the relationship between the procedural obligations imposed by international humanitarian law and those which may arise under international human rights law. To what extent should the latter inform the former?

Some of those who attended the workshop have agreed to participate in a series of blog posts focusing on specific topics that were addressed during the workshop. Three blogs, Intercross, EJIL:Talk!, and Lawfare, are coordinating the series, and will host the posts, outlined below. Each blog post represent’s the different authors’ perspectives, and not necessarily those of anyone else at the workshop, nor any of the institutions represented. The blogposts focus almost exclusively on procedural obligations in the law of armed conflict. In addition, there will be a post on the principle of proportionality under IHL. Although proportionality imposes a substantive obligation on parties not to cause damage or casualties which are excessive in relation to the anticipated military advantage, arguably, the attempts to achieve conformity with this obligation tend to be effected through particular processes and procedures . Read the rest of this entry…