Archive for
January, 2018

A Problematic Take on the Lubanga Trial

by Kevin Jon Heller

Justice in Conflict has a guest post today from a scholar who has written a book about the Lubanga trial. I think the post makes some excellent points about the problems with the trial. But I have serious reservations — acknowledging that I have not read the book — about the author’s take on why the trial did not focus on sexual violence:

Another [serious flaw] was the Chamber’s embargo on sexual violence. The matter of sexual violence loomed large in the trial not by its presence but by its absence. It became the trial’s trademark shame, a conspicuous token of the Chamber’s failure to place the substance of the Ituri province’s tragedy above the Chamber’s perpetual legal jousting. For most of the trial the Chamber did what it could to hear as little as possible about how frequently young women were raped and enslaved.

This is both unfair and mistaken. There is one reason, and one reason only, that sexual violence did not figure more prominently in the trial: Luis Moreno-Ocampo decided not to charge Lubanga with the relevant war crimes or crimes against humanity, choosing instead to focus exclusively on the war crime of conscripting or enlisting child soldiers. Here, for example, is what Patricia Viseur Sellers, a former Legal Advisor for Gender and prosecutor at the ICTY has to say:

Crimes of sexual violence were not charged. Such accusations were certainly within the purview of the Prosecutor. The Prosecutor could have brought charges related to sexual violence. Under the ICC Statute, enslavement, rape, torture, sexual slavery and inhuman acts are defined as crimes against humanity. In the Lubanga case, charges were brought under Article 8, war crimes, and as such could have included charges of torture, rape, sexual slavery or outrages upon personal dignity.

The Trial Chamber noted that they chose not to amend the charges. The Prosecutor could have amended the indictment at anytime prior to trial or even at a reasonable moment during the presentation of the prosecution case [to include charges for crimes of sexual violence]. The Prosecutor has suggested that to do so would have been detrimental to the due process rights of the accused. However, in the event of granting the Prosecutor’s move to amend, the Trial Chamber could have allowed the accused whatever time he needed to prepare his case in light of additional charges. That is a fairly standard procedure at other international tribunals.

Given Moreno-Ocampo’s decision to charge Lubanga solely with conscripting or enlisting child soldiers, the Trial Chamber had no choice but to limit the amount of testimony the prosecution could introduce regarding sexual violence. The Chamber explained why in paras. 629 and 630 of its judgment:

629. Notwithstanding the conclusions set out above, and given the submissions made at various stages of the proceedings, the Chamber needs finally to address how the issue of sexual violence is to be treated in the context of Article 8(2)(e)(vii) of the Statute. It is to be noted that although the prosecution referred to sexual violence in its opening and closing submissions, it has not requested any relevant amendment to the charges. During the trial the legal representatives of victims requested the Chamber to include this conduct in its consideration of the charges, and their joint request led to Decisions on the issue by the Trial Chamber and the Appeals Chamber (viz. whether it was permissible the change the legal characterisation of the facts to include crimes associated with sexual violence). Not only did the prosecution fail to apply to include rape and sexual enslavement at the relevant procedural stages, in essence it opposed this step. It submitted that it would cause unfairness to the accused if he was tried and convicted on this basis.

630. In accordance with the jurisprudence of the Appeals Chamber, the Trial Chamber’s Article 74 Decision shall not exceed the facts and circumstances (i.e. the factual allegations) described in the charges and any amendments to them. The Trial Chamber has earlier pointed out that “[f]actual allegations potentially supporting sexual slavery are simply not referred to at any stage in the Decision on the Confirmation of Charges”.1810 Regardless of whether sexual violence may properly be included within the scope of “using [children under the age of 15] to participate actively in hostilities” as a matter of law,1811 because facts relating to sexual violence were not included in the Decision on the Confirmation of Charges, it would be impermissible for the Chamber to base its Decision pursuant to Article 74(2) on the evidence introduced during the trial that is relevant to this issue.

Moreover, I think the author’s claim that “[t]he matter of sexual violence loomed large in the trial not by its presence but by its absence” is considerably overstated. Not only did sexual violence figure prominently in both the prosecution’s opening and closing arguments, as the Trial Chamber notes in its judgment, there was also considerable testimony concerning sexual violence during trial. The judgment points out in a footnote (n. 54) that 30 different witnesses, 18 female, 12 male, “referred to acts of sexual violence which they either suffered or witnessed.” And it discusses testimony given by one witness, P-0046, at length. Here is just a snippet of P-0046’s testimony:

890. According to the evidence of P-0046, all the girls she met at the demobilisation centres, except for a few who had been protected by certain women in the camps, told the witness that they had been sexually abused, most frequently by their commanders but also by other soldiers. Some fell pregnant, resulting in abortions; and there were instances of multiple abortions. The witness gave evidence that the psychological and physical state of some of these young girls was catastrophic.

891. The youngest victim of this sexual abuse interviewed by P-0046 was 12 years old. The witness stated that some of those who became pregnant were thrown out of the armed group and ended up on the streets of Bunia. Others went to join their relatives, and although they may have felt they remained part of the UPC, the latter failed to provide them with support. It was difficult to reintegrate them into their families because the girls were stigmatised, and significant mediation was necessary. The witness stated that the children provided her with a clear account of systematic sexual violence in the camps.

Should the Lubanga trial have included specific crimes of sexual violence? Absolutely. But the absence of those charges and the (relatively) limited testimony concerning sexual violence cannot be attributed to the Trial Chamber. If you are looking for someone to blame — and you should be — blame Luis Moreno-Ocampo.

NOTE: I have not addressed the victims’ efforts to add sexual-violence charges in the middle of trial. If you want to blame the Chamber for rejecting that request, fair enough. But I have already explained why I think the Chamber was correct.

Don’t Forget About Hors De Combat — Shovel Version

by Kevin Jon Heller

On January 9, Command Sergeant Major John Wayne Troxell, the senior enlisted adviser to the Chairman of the Joint Chiefs of Staff, posted a rather incendiary statement on Facebook about the future of ISIS:

ISIS needs to understand that the Joint Force is on orders to annihilate them. So, they have two options should they decide to come up against the United States, our allies and partners: surrender or die!

If they surrender, we will safeguard them to their detainee facility cell, provide them chow, a cot and due process.

HOWEVER, if they choose not to surrender, then we will kill them with extreme prejudice, whether that be through security force assistance, by dropping bombs on them, shooting them in the face, or beating them to death with our entrenching tools.

The statement has provoked horror in many quarters — particularly concerning Troxell’s colourful endorsement of beating ISIS members to death with shovels. That horror, in turn, has elicited a long post at Lawfare from Laurie Blank explaining that, in fact, beating ISIS members to death with a shovel is completely lawful. As Blank explains, IHL permits lethal force to be used against combatants, a shovel is neither an indiscriminate weapon nor one that necessarily causes superfluous injury and/or unnecessary suffering, and there is no obligation not to attack a combatant who has not affirmatively surrendered. Blank thus concludes that “[i]n fact, though gruesome, the use of a shovel to kill an enemy in combat is entirely within the bounds of the law.”

As far as it goes, Blank’s analysis of IHL is absolutely correct. Her conclusion, however, overlooks one of the most basic principles of IHL: namely, that it is categorically unlawful to intentionally attack — or continue to attack — a combatant who is hors de combat because he is unconscious or incapacitated by wounds. As Jonathan Horowitz pointed out a few days ago at Just Security, essentially anticipating Blank’s post, once an ISIS fighter was rendered unconscious or incapacitated with a shovel, it would violate IHL and be a war crime to continue to hit him:

Someone who surrenders is only one of three types of fighters that the laws of war protect from attack, known as hors de combat. The other types are 1) anyone who is in the power of an adverse party (such as an unwillingly captured ISIS fighter) and 2) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness. What this means is that, similar to ISIS fighters who surrender, these others types of people hors de combat also can’t be legally bombed or “beaten to death with entrenching tools.” If an ISIS enemy fighter is wounded and unconscious, he surely can’t surrender. But U.S. soldiers equally can’t then legally shoot that unconscious fighter in the face. Doing so would be a war crime.

Blank knows  all three prongs of the hors de combat rule (Art. 41(1) of the First Additional Protocol) as well as anyone, which is what makes her failure to discuss that critical limitation on the lawfulness of using a shovel as a weapon all the more odd. Words don’t just matter in war, as Jonathan powerfully notes. They also matter in popular discourse. It would be very unfortunate if a reader not particularly familiar with IHL came away from Blank’s post thinking it is “entirely within the bounds of the law” to beat an ISIS fighter — or any combatant — to death with a shovel. That isn’t the law, nor should it be. Just as you can’t beat an ISIS fighter to death with a shovel after he has surrendered or been captured, you can’t beat him to death with a shovel after he is unconscious or incapacitated.

Trump’s Threat of Destruction of North Korea and Proportionate Defensive Force: An Assessment of Similar Observations in Legal Scholarship and US Practice

by Sina Etezazian

[Sina Etezazian serves as Digest of State Practice Regional Coordinator for the Journal on the Use of Force and International Law. He recently completed his PhD at Monash University. His doctoral thesis was titled “Ambiguities Regarding the Necessity and Proportionality Criteria for the Exercise of Self-Defense in International Law”. In 2017, he won the 2016 Monash Law School Students’ Publication Prize for his article providing a detailed reappraisal of proportionate self-defense].

On 19 September 2017, President Donald Trump stated in the UN General Assembly that if the US is “forced to defend itself or its allies, we will have no choice but to totally destroy North Korea”. This assertion appears to have constituted one of the most expansive positions the United States has taken during the UN era with regard to the scope of the right of self-defense in international law. The predominant academic view (see footnotes 84–5 and accompanying text) is that, like physical acts, individual statements that can be attributed to states may amount to evidence of state practice for the purpose of identifying and modifying a rule of customary international law. Trump’s threat of force against North Korea can thus be understood to provide evidence of US practice concerning the right of self-defense.

Of course, it is difficult to argue that Trump’s statement only applies to North Korea’s army. In contrast, this statement appears to extend to the whole country, including the North Korean civilian population, while it is clear that the law governing the use of force does not underpin such a broad reading of proportionate self-defense. However, Let us suppose for the sake of argument that President Trump only meant the destruction of North Korea’s army, rather than that of the whole country. This post clarifies why even this possible interpretation of Trump’s statement would run counter to the nature of the self-defense proportionality requirement.

It is worth emphasizing at the outset that – setting aside domestic criminal and constitutional law – the conduct of targeted killing and US officials’ legal arguments, as will be discussed in this post under the section “Drone strikes and non-compliance with proportionality since 2002”, implicate three distinct regimes in international law: international humanitarian law (IHL), international human rights law (IHRL) and international law on the use of force (the jus ad bellum regime) (see, for example, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here and here. See also here and here). However, this post will focus only on the last; it does not entail a discussion of IHL and IHRL. Similarly, as this post aims to discuss the relevant practice exclusively in the context of the proportionality requirement, it does not address the content of the two other principal requirements for taking forcible self-defensive measures: “necessity” and “armed attack”. Nor does it aim to consider the concepts of “consent” and “intervention by invitation” and their applicability to the given situation.

Trump’s statement and Dinstein’s formula

Trump’s reliance on possible annihilation of North Korea’s army as being lawful defensive force, when examined through the lens of jus ad bellum proportionality, appears consonant with Yoram Dinstein’s observation that, in the event of a “war of self-defense”, the victim state not only is allowed to halt the large-scale attack that provoked the response but is permitted to engage in forceful measures to seek the “the destruction of the enemy’s army” (p 262). It is, however, noteworthy that Dinstein distinguishes small-scale armed attacks from an unlawful forcible action that prompted a “war of self-defense”. Accordingly, in relation to a minor forceful action, which typically occasions an “on-the-spot-reaction”, proportionality requires that the responding state must use force such that it causes harm only to the same degree as the initial attack. Yet, when a “war of self-defence” begins as a lawful response to an “all-out” aggression, Dinstein argues, the victim state is entitled to pursue the absolute military defeat of the attacker – that is, “the destruction of the enemy’s army”. This is because, in Dinstein’s view, there is no foundation in state practice for the idea that jus ad bellum proportionality continues to exist in a situation involving war, and that it has to be monitored constantly throughout the entire conflict. For this reason, Dinstein reiterates that, once a “war of self-defense” lawfully commences, given that a state is responding to a large-scale armed attack, that response need not be halted before the attacker is defeated except when the Security Council issues a binding resolution calling for the termination of hostilities (p 262). Dinstein’s characterisation of the destruction of the attacker’s army as being proportionate defensive force may thus be equated with Trump’s statement on 19 September 2017 with respect to the annihilation of North Korea’s army and the US’s right of individual and collective self-defense.

The nature of the self-defense proportionality requirement and Trump’s statement

As I have argued elsewhere, despite arguments to the contrary (see, for example, here p 235, 237, 240, 258, 262, 282; see also here), a detailed analysis of state practice concerning the self-defense proportionality requirement makes it possible to identify that states have mostly discussed this requirement in the context of the defensive aim of halting and repelling an attack. In other words, while in many instances of claimed self-defense actions, such as the 1964 UK aerial raid against Yemen, the 1965 US intervention in the Dominican Republic, Israel’s 1972 incursion of Lebanon and Russia’s 2008 action against Georgia, the reacting states have found the extent of the response and the level of casualties to be a relevant factor in measuring proportionality (see, for example, UN Doc S/PV.1108 (6 April 1964) pp 7–8, 10; “The Situation in the Dominican Republic”, Yearbook of the United Nations (1965) p 142; UN Doc S/PV.1644 (27/28 February 1972) p 19; UN Doc S/PV.1643 (26 February 1972) pp 3, 15; UN Doc S/PV.5953 (10 August 2008)), it appears that they have, to a certain degree, done so in the context of the purpose of halting the initial attack. This is demonstrated – at least to some extent – by the reaction of several states to the Israeli measures allegedly aimed at Hezbollah bases in Lebanon in 2006. Most of the states rejecting Israel’s assertion of self-defense highlighted the disproportionate nature of the action by reference to the extent of the harm inflicted on the infrastructure of the Lebanese state and the number of civilian victims. However, when the matter was addressed more thoroughly, it became clear that some states were underscoring the gravity of Israel’s action to argue that it had been disproportionate to the objective of self-defense, being the mere repelling of the initial attack (and possibly the impending attacks). Thus, the Russian representative expressed the view that “the scale of the use of force, the casualties and the destruction demonstrate that the actions stated for achieving this purpose go far beyond a counterterrorist operation” (UN Doc S/PV.5493 (Resumption 1) (21 July 2006)). Qatar took a similar stance, stating:

Everyone is fully aware of the grave situation in the Middle East; it has suddenly deteriorated as a result of the excessive use of military force by Israel against Lebanon on the pretext of self-defence. However, the greatest majority of the targets of the Israeli military aggression have been civilian targets, including the international airport, residential buildings, factories, power plants, bridges, highways and even grain silos and houses of worship. This leaves no doubt that the aim of this war goes beyond its stated objective (UN Doc S/PV.5493 (21 July 2006) 14).

Moreover, when reflecting on the definition of aggression during 1970–71, many states likewise clarified that jus ad bellum proportionality requires an action undertaken in self-defense to be weighed against the purpose sought by that action (See, for example, UN Doc A/AC. 134/SR. 67–78 (19 October 1970) pp 88, 89, 90, 89; UN Doc A/AC.134/SR. 79–91, (7 June 1971) pp 43–44). Similarly, Uganda, in the Armed Activities case in 2005, evaluated the proportionality of its response with respect to the objective of defense in the circumstances (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) rejoinder submitted by the Republic of Uganda, pp 121, 124–25. See also ibid, memorial of the Democratic Republic of Congo, para 5.26; ibid, reply of the Democratic of Republic of Congo, para 3.159). It is worth noting that this position was shared by the states parties in the Oil Platforms case (Oil Platforms (Iran v US) counter-memorial submitted by the United States of America, p 141; ibid, rejoinder submitted by the United States of America, para 174–76), although Iran ultimately shifted to a more quantitative approach. Furthermore, in 2008, Panama employed the same reasoning when contending that Russia’s response against Georgia was “disproportionate” to what had been stated as the legitimate aim of self-defense in the given case, namely “protecting Russian citizens” from the initial attack by Georgian troops (UN Doc S/PV.5953 (10 August 2008) p 15). It therefore appears that, based on an assessment of customary international law, a precise equivalence between the magnitude of the attack and the harm done is a not a necessary aspect of the proportionality criterion for defensive force. Nevertheless, a response that has brought about much greater loss and damage than the initial attack is unlikely to be viewed as proportionate self-defense, as it has clearly gone beyond the mere halting of the attack.

Returning to Trump’s threat of force against North Korea and his self-defense justification in the General Assembly, it thus seems clear that the overthrowing of the attacker’s regime or defeating its army would not constitute a proportionate response unless it could be demonstrated that, under the exceptional circumstances of the case, this was the only way to achieve the objective of halting the forceful activities that accounted for the necessity of defense. However, while the destruction of a state’s army might be proportionate to the aim of repelling a nuclear attack by that state, as Kevin Jon Heller observes, it is clear that Trump has threatened to destroy North Korea in response to “any attack” by this country against the US or its partner nations; any such possible forcible action by the US would clearly be disproportionate under the law governing self-defense.

Drone strikes and non-compliance with proportionality since 2002

President Trump explicitly clarified – at least concerning response to a possible attack by North Korea – that the US’s version of proportionate defensive action is predicated upon the notion of the destruction of the attacker’s army. An examination of its recent practice relating to the exercise of the right of self-defense against both states and non-state actors, however, reveals that the US has engaged in disproportionate forcible measures since 2002, when it initiated its first drone strikes beyond the Afghan combat zone.

This can be seen – at least in part – from the position taken by then-Legal Advisor for the US Department of State Harold Koh, who claimed in 2010 that the United States was permitted to carry out drone attacks outside Afghanistan because it was still involved in self-defense operations against the al-Qaeda and Taliban groups in a continuation of Operation Enduring Freedom, which had begun on 7 October 2001. In a similar vein, then-Deputy National Security Advisor for Homeland Security and Counterterrorism John Brennan argued in 2012 that because the United States is engaged in an armed conflict with al-Qaeda, “it takes the legal position that – in accordance with international law – we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time”.

However, the US managed to overthrow the Taliban regime and install an interim government, soon after it claimed defensive force in October 2001 to intervene in Afghanistan. Thus, even assuming that the removal of the Taliban government of Afghanistan could be regarded as proportionate self-defense, because it was necessary to effectively respond to al-Qaeda (for support of this view, see Lindsay Moir, Reappraising the Resort to Force: International Law, Jus ad Bellum and the War on Terror (Hart Publishing, 2010)), the aim of the defensive action had been achieved in the circumstances; this suggests that a separate series of unilateral forcible measures at least against the Taliban had required a separate justification based on Article 51 of the UN Charter. Despite this, the United States has extended its self-defense operations against the Taliban militants based in Pakistan since 2004, without providing a renewed self-defense assertion. It has continued to do so under the Trump administration.

Like Trump’s threat of force against North Korea, Koh’s and Brennan’s reasoning would appear to be based upon Dinstein’s formula of a “war of self-defense”, which maintains that “[t]here is no support in the practice of States for the notion that proportionality remains relevant – and has to be constantly assessed – throughout the hostilities in the course of war”. (For a similar viewpoint concerning John Brennan’s argument and its resemblance to Dinstein’s theory of the “war of self-defense”, see Kevin Jon Heller, “The Use and Abuse of Analogy in International Humanitarian Law” in Jens D Ohlin (ed), Theoretical Boundaries of Armed Conflict & Human Rights (Cambridge University Press, 2016) pp 252–4.) As regards the proportionality requirement in the exercise of self-defense, Trump’s statement cannot therefore be regarded as a total departure from the manner in which the US has invoked Article 51 to explain its drone strikes targeting alleged terrorists outside Afghanistan.


Trump’s reference to the possible destruction of North Korea’s army as permissible defensive action, coupled with the self-defense justifications advanced for the US’s wide-scale extraterritorial drone program since 2010, may reflect serious attempts to reinterpret and loosen the well-accepted rules on the principle of proportionality to the point of irrelevance. These expansive readings of self-defense, however, have never been endorsed by the rest of the international community or even the majority of them. On the contrary, the requirement of halting and repelling an armed attack still represents the only primary benchmark for the application of jus ad bellum proportionality. As noted above, this position is underpinned by an extensive reexamination of customary international law concerning proportionate defensive force, and such a reexamination provides a convincing rebuttal to the doctrine of a “war of self-defense”.

Some Thoughts on Negotiating a Treaty on Autonomous Weapon Systems

by Maziar Homayounnejad

[Maziar Homayounnejad is currently a PhD researcher at the Dickson Poon School of Law, King’s College London. His research primarily focuses on law of armed conflict aspects of autonomous weapon systems, with a secondary focus on arms control and non-proliferation.]

On November 13-17, 2017, the UN, acting under the auspices of the Convention on Certain Conventional Weapons (CCW), convened its first Group of Governmental Experts meeting (GGE) on lethal autonomous weapons systems (LAWS). After three detailed but informal meetings in 2014, 2015, and 2016, there were strong sentiments that mere informative discussion had run its course, and that the time was right to proceed with a more formal mandate, to “explore and agree on possible recommendations on options related to emerging technologies in the area of LAWS”.

Once confirmed, this raised expectations amongst some non-governmental organizations (NGOs) that a ban on ‘killer robots’ may follow. However, as other commentators noted at the time, the formal mandate made no reference to negotiating a LAWS treaty, and this was clearly a result of divergent views within the CCW’s membership over how best to deal with LAWS. So, it may have been over-optimistic to expect anything other than continued talks, as a result of this move.

Fast-forward to the first GGE last November, and it remains clear that sharp divisions between States still bedevil the diplomatic process. As Denise Garcia explained in a recent piece, there are at least three groups of States with divergent positions.

  • Those, like China, Russia, and the US, which oppose a ban or any specific regulation in the near-term, but instead want continued talks on more basic issues, like arriving at a proper definition of LAWS.
  • A group consisting mainly of EU States, which advocates a path towards a politically binding agreement where the concepts of ‘autonomy’ and ‘human control’ serve as a foundation for future discussion.
  • The so-called Non-Aligned Movement, which consists of a large number of diverse States, and which tends towards either a ban treaty, or at least moratoria on the production and use of LAWS.

With significant States taking one position, and a group of smaller but much more numerous States going the opposite way, it is difficult to imagine any binding solution in the near-future.

Making matters worse is the rapid and unpredictable pace of technological change, which makes conventional attempts to regulate weapons particularly problematic when applied to LAWS; akin to trying to pin down a moving target. As Paul Scharre writes, much of the technology of AI and autonomy has gone from science-fiction to viable concept, just in the three years since the CCW began informal talks. On the one hand, this should not be a complete surprise, as the “perfect storm of parallel computation, bigger data, and deeper algorithms”, which is giving rise to stronger AI, was apparent even in 2014. Yet, the precise level of success and its sheer speed of arrival was not easily foreseeable back then. Now, neural networks can beat humans at poker and Go, and a genetic algorithm has triumphed over a human fighter pilot in a simulated aerial dogfight. The Report of the GGE also acknowledged this instability (see paragraph 16e of the main Report, and paragraph 29 of Annex II), which formed part of its reasoning for extending formal talks into 2018 (paragraph 17a).

Looking ahead, there are still some significant weaknesses in AI, but the pace and unpredictability of technological progress will very likely accelerate, and this may or may not resolve these shortcomings. In particular, developments in neuroevolution and newer applications of quantum physics in the defense and national security sphere seem set to create major technological disruption. Not surprisingly, this has raised legitimate questions on how best to approach a lagging (and somewhat divided) diplomatic process for regulating LAWS. The question is all the more important, now that the first week of the 2018 GGE has been confirmed and brought forward to February.

One solution – suggested by Scharre, and also several State delegations at the November GGE – is to move the focus away from the technology, and back to the one constant in war: the human. Namely, even if the technology was able to perform every task in the targeting process, what decisions do we believe still require uniquely human judgment, and why? Hence, what role would we still want humans to play in the application of lethal force? This argument is not necessarily new, but was advanced in various forms throughout the earlier informal meetings, not least by London-based NGO Article 36 in its ‘meaningful human control’ concept. The difference now is that it carries greater weight and urgency because of the bewildering pace of technological change, which will likely render any tech-specific instrument obsolete by the time it comes to be ratified.

On the other hand, Rebecca Crootof is less sanguine about a purely tech-neutral approach to LAWS regulation. In a recent Twitter discussion, she noted there are pros and cons to both tech-specific and tech-neutral approaches, and that a robust regime should incorporate both, to address known and unknown issues alike. Conversely, Crootof argued, if we restrict our focus to tech-neutral questions, we lose the opportunity to address the specific known problems.

Accordingly, the dual LAWS problem at the CCW would seem to be a) a deeply divided membership, and b) rapid technological change, which causes uncertainty over the continued viability of any negotiations, and over the extent to which there should be a tech-focus. This arguably calls for a departure from the standard CCW approach to weapons regulation.

In a recent paper published by the Transnational Law Institute at King’s College London, I examine various ways to ensure that LAWS can be developed, deployed and used in compliance with international humanitarian law. Specifically in relation to development (at pages 40-48), I argue in favor of an approach modelled on the Convention on Cluster Munitions (CCM). This imposes a strict and unambiguous ban in Article 1, with a very wide scope of application that appears to spell the death knell for ‘cluster munitions’. Interestingly, the CCM proceeds in Article 2(2)(c) to allow for technical developments, which the chapeau to the Sub-Paragraph presumes will “avoid indiscriminate area effects and the risks posed by unexploded submunitions”. This it does by excluding from the definition of the (prohibited) ‘cluster munition’ weapons that cumulatively possess five specific technical characteristics aimed at improving their reliability and accuracy (see technical criteria). According to the CCM Commentary, these criteria should avoid or sufficiently reduce the likelihood that (sub)munitions will create significant humanitarian problems.

The dual humanitarian problem of cluster munitions (as also gleaned from the second preambular clause) is understood to be “indiscriminate area effects” at the time of use; as well as the “risks posed by unexploded submunitions” when they fail to function as intended, or when they are left abandoned. By articulating these two problems that the subsequent technical characteristics are intended to avoid, the chapeau to Sub-Paragraph (c) serves an important dual role. It provides:

  • A justification for the exclusion of weapons that meet the five technical criteria; and
  • A potential mechanism for determining if these technical criteria function as intended (paragraph 2.120, CCM Commentary).

Namely, the chapeau links the definition of what is prohibited to the humanitarian effects that are the basis for prohibition and, as such, is an important legal innovation. While cluster munitions are not designed to create these humanitarian problems, Paragraph (2)(c) stipulates that (sub)munitions must be deliberately designed to avoid such effects if they are to escape prohibition. Accordingly, the Sub-Paragraph as a whole takes both a design-led and an effects-based approach, via inclusion of the technical criteria and the chapeau, respectively.

Importantly for the 2018 GGE, this turns out to be the most ‘LAWS-relevant’ part of the CCM. To transplant it into a LAWS treaty would enable lawyers to define the legal and humanitarian standards that autonomous technologies must reach to fully comply with IHL, leaving the programmers and engineers to try to build those systems. Should the state of technology fail to reach the prevailing legal standards, there will be a de facto ban on LAWS. Conversely, if and when the relevant technologies are able to perform to those standard, they will potentially be lawful. Accordingly, this approach may also help to allay some of the fears of the ban proponents, while also affording the more hesitant States an opportunity to demonstrate what specific technologies may be consistent with humanitarian standards, while offering genuine military utility; consistent with the well-established precautionary principle.

Thus, by drafting a rule similar to Article 2(2)(c), CCM, a LAWS regulation treaty could bring clarity in several ways.

  • Firstly, it can articulate the humanitarian risks posed by LAWS that are poorly designed, or otherwise not fit for purpose (similar to the CCM’s chapeau). These might include, for example, the ‘risk of indiscriminate attack’, ‘distinction failure’ and ‘insufficient civilian risk mitigation’, amongst others. In turn, this would provide a legal basis for the presumed permissibility of LAWS that are deliberately designed not to pose such risks.
  • Secondly, the rule can set specific technical criteria. Mainly, these will consist of baseline technical requirements for sensory, processing and computational capabilities, which are deemed necessary to obviate the humanitarian risks identified (similar to the CCM’s technical design criteria). However, it can also lay down specific context-based programming requirements (such as ‘conservative use of lethal force’); stipulate appropriate shut-off capabilities; and it can mandate intelligent reversion to remote piloting, where appropriate.
  • Finally, as LAWS are yet to be used in battle, the technical requirements and capabilities can be periodically compared with the statement of humanitarian risks, to ensure that they function as intended (similar to the second role of the Article 2(2)(c) chapeau). If they do not, it may be possible to amend the technical criteria at regular intervals, for example, using evidence-based data presented to a Meeting of State Parties or Review Conference (paragraph 2.38, CCM Commentary). Arguably, even in the intervening periods, there can be a duty on State Parties to do everything feasible to gauge the humanitarian effects of a given LAWS (using onboard sensors), and to refrain from continuing deployments in the face of clear evidence of humanitarian harm.

Of course, another compelling reason for periodic review and amendment of the technical criteria is the rapid and unpredictable rate of change of technical progress, outlined above. It is not inconceivable that the current state-of-the-art in LAWS-relevant technologies might appear relatively basic in five years’ time. Thus, it would be beneficial for the continuous improvement of humanitarian standards to keep the state of technology under review, and to update the technical criteria accordingly; notwithstanding the possibility that extant criteria may already meet the chapeau’s humanitarian standards.

Why the New Weapons Amendments (Should) Apply to Non-States Parties

by Kevin Jon Heller

Although aggression received most of the attention at the Assembly of States Parties (ASP) last month, the ASP also adopted a series of amendments to Art. 8 of the Rome Statute, the war-crimes provision, prohibiting the use of three kinds of weapons in both international armed conflict (IAC) and non-international armed conflict (NIAC):

[W]eapons, which use microbial or other biological agents, or toxins, whatever their origin or method of production.

[W]eapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays.

[L]aser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices.

Because the weapons amendments were adopted pursuant to Art. 121(5) of the Rome Statute, they will only apply to state parties that ratify the amendments. This is, of course, the effect of the second sentence of Art. 121(5), which caused so much controversy in the context of aggression: “In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.”

Art. 121(5), however, applies only to states parties. It does not apply to states that have not ratified the Rome Statute. In the context of aggression, that limitation raised the possibility of the Court prosecuting an act of aggression committed by a non-state party on the territory of a state party — something the Court’s normal jurisdictional regime permits for war crimes, crimes against humanity, and genocide. To avoid that possibility, the ASP amended the Rome Statute to include a new provision, Art. 15bis(5), that specifically (and also controversially) completely excludes non-states parties from the crime of aggression:

In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.

I had assumed that no such jurisdictional limitation applied to the new weapons amendments. As Patryk Labuda recently pointed out on twitter, however, the ASP appears to believe otherwise. Here is the second preambular paragraph to the amendments (emphasis mine):

Noting also article 121, paragraph 5, of the Statute which states that any amendment to articles 5, 6, 7 and 8 of the Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance and that in respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party’s nationals or on its territory, and confirming its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted this amendment applies also in respect of States that are not parties to the Statute.

The bolded language is intended to exempt non-states parties from the normal jurisdictional regime of the Court. Clause 2 states that if a state party does not ratify the weapons amendments, the Court cannot prosecute the use of a prohibited weapon either when committed by a national of that state or on the territory of that state. Clause 3 then puts non-states parties in the same position as a state party who has not ratified the amendments.

This limitation regarding non-states parties is very odd, because the ASP had every right to make the new weapons amendments applicable to non-states parties. Non-states parties are currently prohibited from using certain weapons on the territory of a state party — those that are criminalized by the Rome Statute as adopted in 1998. The new weapons amendments thus fragment the Court’s jurisdiction over non-states parties: although they cannot use poisoned weapons, asphyxiating gases, and expanding/flattening bullets on the territory of a state party, they are still permitted to use biological, fragmentation, and blinding laser weapons — even on the territory of a state party that has ratified the new weapons amendments.

I see no persuasive rationale for this asymmetry. Exempting non-states parties from the crime of aggression is one thing: aggression is a sui generis crime and was not previously within the Court’s (active) jurisdiction. But the drafters of the Rome Statute had no problem making non-states parties subject to the original war crimes involving prohibited weapons, nor did the 124 states who ratified the Rome Statute have a problem accepting the potential criminal liability of non-states parties. So why should things be any different for the new war crimes? If Russia cannot use napalm (an asphyxiating gas) on Georgian territory, why should it be able to use ricin (a biological weapon) on it?

To be sure, the same exclusion of non-states parties was included in the war-crimes amendments adopted at Kampala in 2010, which criminalized the use of poisoned weapons, asphyxiating gases, and expanding or flattening bullets in NIAC. But that limitation was largely superfluous regarding non-states parties, because the Rome Statute already criminalized the use of those weapons in IAC, the primary type of conflict in which a non-state party can be subject to the Court’s war-crimes jurisdiction. (Transnational NIACs aside.) The limitation is anything but superfluous for the new weapons amendments, because they are specifically designed, inter alia, to criminalize the use of certain weapons in IAC.

I also believe — and this is the reason I have written this post — that the exclusion for non-states parties included in the preamble to the new weapons amendments has no legal effect. The argument is a complicated one, and I have made aspects of it at length in a JICJ article on the legal status of the aggression “Understandings” that were adopted at Kampala in 2010. The basic problem is this: nothing in the amended Rome Statute excludes non-states parties from the new war crimes. That limitation exists solely in the preamble. So it is difficult to see why or even how the judges could enforce it, given that Art. 21(1)(a) of the Rome Statute specifically provides that “[t]he Court shall apply… [i]n the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence.” If the judges simply apply the Rome Statute, the Court has jurisdiction over every war crime in Art. 8 that is committed by a non-state party on the territory of a state party — including the new ones.

To be sure, one could fashion a fancy argument for applying the limitation based on Art. 31 of the VCLT, which provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” and deems a preamble to be part of a treaty’s context. I would be sympathetic to such an argument, because I think the point of treaty interpretation is to give effect to the intent of the drafters. But that is by no means the dominant approach to treaty interpretation. Most international-law scholars favour a “plain meaning” approach — and the Court seems to, as well. (At least when doing so expands the ambit of criminal responsibility. When it doesn’t, object and purpose tend to take over.)

Moreover, all of the other parts of the Rome Statute also qualify as “context” under Art. 31. And here the aggression amendments are, in my view, not only relevant but dispositive: if non-states parties could be excluded from the normal jurisdictional regime of the Court simply by saying as much in a preamble to an amendment, why did the ASP specifically amend the Rome Statute to exclude non-states parties from the crime of aggression? Perhaps the ASP was just being overly cautious, but that seems unlikely given how carefully almost every word of the aggression amendments was negotiated and drafted. It seems far more likely that the ASP realized — correctly, in my view — that the exclusion had to be included in the text of the Rome Statute to be given force by the judges.

In short, despite what the preamble to the new weapons amendments says, I believe that the OTP now has have every right to charge a national of a non-state party who uses (say) a biological weapon on the territory of a state party that has ratified the amendments — and the judges would have every right to convict the perpetrator of the relevant war crime. The ASP exclusion of non-states parties from the amendments has no legal effect.

NOTE: Dapo Akande has posted at EJIL: Talk! an excellent analysis of the relationship between the new war crimes and customary international law. I completely agree with him — including with his statement that, in practice, excluding non-states parties from the crimes will solve some tricky immunity problems.