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Law of War

Roundtable on the Siege of Eastern Ghouta

by Kevin Jon Heller

I had the pleasure of participating yesterday in a superb — and long! — panel on the 2013 siege of Eastern Ghouta. The panel discussed the facts, the law, and the politics of the siege. I was joined by Hussam Alkatlaby, the Executive Director of the Syrian Violations Documentation CentreJoost Hiltermann, programme director for Middle East & North Africa at the International Crisis Group; and Robin Peeters, the Syria Policy Officer in the Dutch Ministry of Foreign Affairs.

You can watch a recording of the event on the University of Amsterdam website here.

The panel was sponsored by the War Reparations Centre at the Amsterdam Centre for International Law (ACIL); the Amsterdam Students Association of International Law; and the Syria Legal Network.

Escalation of Violence in Bangui: Has MINUSCA Become Party to a Conflict in CAR, and What Would That Mean?

by Bianca Maganza

[Bianca Maganza is a PhD candidate in International Law and a Teaching Assistant at the Graduate Institute of International and Development Studies in Geneva.]

Some days ago, the United Nations Multidimensional Integrated Stabilisation Mission in the CAR (hereinafter, MINUSCA) got involved in heavy fire exchange with an armed group known as KM5 in Bangui, the capital of the Central African Republic (hereinafter, CAR). Security in CAR is rapidly deteriorating since some weeks, and accidents such as the one just mentioned are becoming, if not the norm, for sure no longer the exception. Indeed, it is not the first time that a situation of direct confrontation between the UN mission and the rebels arises. Although facts are not fully confirmed and the situation is still unfolding at the time of writing, it seems worth considering the consequences that the episode may entail under international humanitarian law (hereinafter, IHL).

The issue of the role played by IHL in the context of so-called peace operations is a much-debated and complex one (see, for example, the recently published Leuven Manual on the International Law Applicable to Peace Operations). Crucial aspects such as those related to the consequences of the application of IHL on issues of targeting and on the international prosecution of crimes committed in relation to the situation have been brilliantly covered elsewhere, and I will not discuss them here. The same is true for jus ad bellum considerations vis-à-vis the mandate and the evolution of traditional peacekeeping into “stabilisation” missions. While the main case study in this respect has so far been that of MONUSCO in the DRC, in particular as regards its Intervention Brigade, it has been rightly claimed that MINUSCA is the new frontier for such discussion.

In this post, I want to focus on a specific aspect of the situation, namely the possibility that – provided that some factual circumstances are reached – a multinational mission spearheaded by the UN becomes as such party to a conflict with the armed group against which it is fighting. This case is different from the one following the so-called support-based approach developed by Ferraro, which I am not discussing here. Although the fact that IHL may apply to situations in which a multinational operation is involved is nowadays accepted, states and international organisations are generally reluctant to admit that a peace operation has become party to an armed conflict. Such possibility has been often discussed but frequently let sink through the lines and rarely tackled head on. If, on the one hand, the capacity of a multinational operation to become party to the conflict is often taken for granted, the concretisation of such a possibility is on the other hand never explicitly acknowledged in terms of its consequences.

The facts that recently took place in Bangui provide the occasion to discuss the legal significance of such a case.

The facts

After the failure of a first attempt undertaken some days before, in the night between 7 and 8 April 2018, what was announced as joint law enforcement operation of MINUSCA, the Central African Armed Defense Forces (FACA) and the Internal Security Forces (ISF) aimed at disarming and arresting some criminal groups in the PK5 area of Bangui turned into violent fire confrontation between the armed groups and the mission.

According to the press statement released by MINUSCA, at a given moment, “heavily armed elements of criminal groups in the area deliberately fired on international forces, prompting a return of fire to push these elements back”. According to other sources, it is the MINUSCA contingent that entered the area shooting in the first place. As a result, eight peacekeepers were wounded, and one died. Some civilian casualties are also reported. In any case, it is quite clear that the operation was not a success for MINUSCA: for the second time in a matter of few days, the contingent had to leave the area and had been the object of subsequent attacks.

A conflict between MINUSCA and the armed group?

Regardless of who started the fire exchange, it is more than legitimate to ask whether the threshold for IHL applicability has been reached with the incident of 8 April – if not even before. In fact, despite the careful employment of the language of law enforcement in MINUSCA’s press releases – referring to “criminal groups”, “gangs” and “disarmament operations” – the reality on the ground seems to point to another direction.

Working on the hypothesis that a conflict, if any, ought to be a NIAC due to the involvement of non-state armed groups against the contingent spearheaded by the UN, the situation has to be analysed under the two criteria of intensity of hostilities and organisation of the parties as developed by the ICTY in the Boškoski case.

Intensity

Applying the first prong of the test to the single incident under analysis, video footage clearly shows MINUSCA troops engaging the area through the use of heavy weaponry. The presence of civilian casualties and fleeing civilians, if confirmed, is a further factor to consider when assessing the intensity of the armed confrontation. The episode must be assessed against the broader background of the situation in CAR. The general secrecy regarding the number, details and nature of MINUSCA operations cannot hide the fact that incidents like the one discussed here are not isolated but had already happened and keep happening in the country. The recent security deterioration in the area and the repeated, unsuccessful attempts by MINUSCA to seize the neighbourhood testify to the seriousness of the situation. The situation remains unchanged after the incident of 8 April, and following the main incident the mission has been the object of subsequent attacks in another area of the city. It is highly probable that the mission will attempt yet another operation to gain control of the neighbourhood – possibly, deploying more force to be able to finally overcome the enemy.

In light of the above, it seems at least plausible to argue that the intensity level has been reached either regarding the single attack under analysis – in fact, a NIAC can be a matter of hours or days (see, in addition to the case law of the ICTY, Abella v. Argentina, known as “La Tablada” case, before the Inter-American Commission of Human Rights) – or as a result of the series of episodes involving MINUSCA and the armed group since some time. Assuming that this is the case, for the sake of argument, the next step is an assessment of the organisation of the parties involved.

Organisation of the parties

That of organisation of the parties contains in itself the two other interdependent criteria of control over the troops and capacity to comply with the rules of war – both in abstract, through a disciplinary system and chain of command, and through the concrete possibility of respecting the most basic principles such as those of distinction and precaution. These seem, to me, the features that differentiate a collective entity having the capacity to become party to a conflict from a random group of individuals involved in armed violence.

Most of the analyses of situations of multinational operations potentially involved in an armed conflict stop at the assessment of the organisation of the armed group for the sake of establishing the existence of a NIAC. However, it seems to me that the only way to fully satisfy the test is to apply the analysis to both sides. As evident as the result may be, to be able to claim that MINUSCA has become party to a conflict with KM5, one shouldn’t stop at whether the armed group is sufficiently organised to reach the threshold of a NIAC but also ought to address the features of the mission itself.

In the case at stake, it seems undeniable that KM5 shows and deploys a considerable amount of organisation. To a certain extent, it can be argued that it even controls the neighbourhood known as PK5: it was indeed following continuous requests by the residents of the area that MINUSCA decided to act to disarm the armed group and try to “liberate” PK5. As we have seen, MINUSCA attempted to take the neighbourhood back more than once, without success. As for elements of control, KM5 is organised in auto-defence patrols, therefore showing capacity to coordinate action and logistics, and acts in execution of the orders given by its leader, Nimery Matar (known as “Force”), who even recently released a video declaring to be ready to fight in case MINUSCA would have dared entering the area he controls. While we would need more facts to weigh the group’s potential compliance with IHL, the existence of a command structure can arguably point to such abstract capacity.

When it comes to the UN mission, all three accounts seem equally warranted. The mission has by definition a clear organisational structure and a chain of command. Moreover, respect for IHL is part of its mandate and generally warranted by the 1999 UN Secretary General’s Bulletin. Even though the Status of Forces Agreement (hereinafter, SOFA) between MINUSCA and CAR is not publicly available, respect for IHL is included in the model UN SOFA and usually reflected in single SOFAs concluded with host countries.

MINUSCA as party to a conflict

The purpose of this post is not directly that of taking a position on whether or not the situation in CAR amounts to an armed conflict between MINUSCA and the armed group against which it is fighting. Even though the facts reported above seems to point to a considerable level of intensity, full confirmation of what happened is still awaited and sources are scattered and not always reliable. My point is rather that, in case the required intensity threshold is reached, both sides have the capacity to become parties to a conflict.

The main consequence of considering MINUSCA as party to an armed conflict – a NIAC, in this case – would be that the mission as a whole is bound to respect at least the provisions of CA3 plus any other customary international law rule deemed applicable to the situation. More specifically, MINUSCA would have to respect and ensure respect for IHL by its armed forces and other persons or groups de facto acting on its instructions, or under its direction or control (Rule 139) and train its armed forces in IHL (Rule 142). These obligations seem particularly relevant in light of the problems often posed by issues of legal interoperability in the context of multinational operations. Seeing the mission as one single entity for the sake of IHL would allow deeming it responsible for the training and subsequent conduct of its peacekeepers independently of – but not in contradiction with – the repartition of command and control between the international organisation and troop contributing countries. Concretely, this would mean that, in addition to the obligations of each troop contributing country, the UN should take the responsibility of substantively training the contingent and making sure it respects and applies the same rules of IHL as whole, instead of a patchwork of obligations deriving from the law applicable to single member states. Arguably, such a scenario does not differ too much from what already happens in practice through the joint training of peacekeeping missions before deployment, and the respect of a basic, uniform set of IHL rules is the aim of the Secretary General’s Bulletin. However, the idea that those obligations might directly derive from the status of party to the conflict under IHL sounds very unlikely to be accepted for the consequences it might entail when it comes to issues of attribution and allocation of responsibility for wrongdoings between the member states and the international organisation. For all that, it seems undeniable that acting under a unified legal framework has the potential for being a game changer at least in terms of prevention of violations of IHL.

No less important consequences derive from the potential role of MINUSCA as a party to the conflict under international criminal law. As aptly noted by Labuda, although the UN keeps denying the existence of an armed conflict between the mission and the armed groups in CAR, it at the same time reiterates that any attack against peacekeepers may amount to a war crime. Leaving aside the contradictory nature of statements of this kind, what is interesting is that incidents such as the one of 8 April are likely to fall under the jurisdiction of the recently established Special Criminal Court for CAR. Further judicial pronouncement is needed to shed some light on the features of the crime of attacking peacekeepers in a situation of armed conflict. The premise that because of the status of a peacekeeping mission as party to the conflict members of its military branch could be targeted as forming part of the armed forces thereof has never, so far, been accepted in the case law of international criminal tribunals. Will the Special Court choose to do so, indirectly saying the unsaid? We will need to wait and see if the whispered possibility of considering a UN mission as a party to the conflict will be finally made explicit in such a way.

Why Al-Kibar Does Not Contribute to Pre-Emptive Self-Defence

by Kevin Jon Heller

Elena Chachko has an interesting post at Lawfare discussing Israel’s recent public acknowledgement of what the international community has long known: that it was responsible for the 2007 attack on the Al-Kibar nuclear reactor in Syria. Although I agree with much of Chachko’s post, I would take issue with what she says about how the failure of states to condemn the attack at the time and to react to Israel’s new acknowledgment of its responsibility might affect the customary status of pre-emptive self-defence:

It would be unwise to jump to the conclusion that the many states that did not protest the Al-Kibar strike instead acquiesced to it, thus indicating their support for a right to exercise preemptive self-defense to eliminate nuclear threats. Still, one could argue that the clandestine and military nature of the Al-Kibar reactor, its proximity to Israel, and the hostility between Israel and Syria rendered Israel’s “last opportunity to stop an existential threat” argument more plausible now than when it invoked it to justify the destruction of Osirak—a distant, declared, reactor built with French assistance. Under this reasoning, the relatively muted international response could suggest that members of the international community might be willing to entertain preemptive self-defense under such extreme circumstances.

In sum, the question of whether international law now recognizes a right to preemptive self-defense against nuclear threats remains highly contested. But the evolution of the international position from “Opera” to “Outside the Box,” even after Israel acknowledged its role in the latter, is telling. Both scholars and politicians will likely take this evolution into account in discerning state practice on this question going forward.

With respect to Chachko, this argument is problematic. As she acknowledges, Israel has still not articulated any legal justification for the Al-Kibar attack, much less claimed that it represented a legal act of pre-emptive self-defence:

It remains true, however, that we do not know what Israel’s legal position actually was. Israel has yet to provide a public legal justification for the Al-Kibar operation under jus ad bellum. The newly released interviews with members of Israel’s leadership at the time, including then-prime minister Ehud Olmert, did not explicitly address the legal aspects of the decision to carry out the strike. The only  I found in the reports about the strike to the role of lawyers in vetting the operation was a brief mention of then-attorney general Meni Mazuz’s involvement in drafting the government decision that authorized the operation.

Because Israel has not provided a legal justification for the attack, the attack cannot help establish the legality of pre-emptive self-defence. As the ICJ made clear in the Nicaragua case, practice unaccompanied by opinio juris does not contribute to modifying customary rules concerning the use of force (para. 207; emphasis mine):

The Court has no jurisdiction to rule upon the conformity with international law of any conduct of States not parties to the present dispute, or of conduct of the Parties unconnected with the dispute; nor has it authority to ascribe to States legal views which they do not themselves advance. The significance for the Court of cases of State conduct prima facie inconsistent with the principle of non-intervention lies in the nature of the ground offered as justification. Reliance by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of customary international law. In fact however the Court finds that States have not justified their conduct by reference to a new right of intervention or a new exception to the principle of its prohibition. The United States authorities have on some occasions clearly stated their grounds for intervening in the affairs of a foreign State for reasons connected with, for example, the domestic policies of that country, its ideology, the level of its armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing international law.

For similar reasons, the “relatively muted” response by states to the Al-Kibar attack also cannot help establish the legality of pre-emptive self-defence. It is true that silence in the face of practice can count as acquiescence to a proposed customary rule. But that is only the case when — to quote the ILC’s new Draft Conclusion 3 regarding the formation of custom — “the circumstances called for some reaction.” No reaction is required when a state does not provide a legal justification for its actions. In 2007, Israel did not even acknowledge that it was responsible for the attack. And even now, in 2018, Israel is not claiming that it acted in self-defence. So it would not simply be “unwise” to read too much into the international community’s response to the Al-Kibar attack. It would be legally inappropriate to do so.

I also disagree with Chachko’s claim that silence “could suggest that members of the international community might be willing to entertain preemptive self-defense under such extreme circumstances.” I think it actually suggests the opposite: it is extremely likely that states — particularly those in the Non-Aligned Movement (NAM) — remained silent about the Al-Kibar attack precisely because Israel neither acknowledged that it was responsible for the attack nor claimed that the attack was a legitimate act of pre-emptive self-defence. As Chachko rightly points out — echoing the Spector/Cohen blog post  she links to — there were sound political and strategic reasons for states, particularly in the Middle East, not to get too worked up about the 2007 attack. In the absence of Israel claiming self-defence, NAM’s silence was legally costless. But it is difficult to believe that it would have remained silent in the face of a legal claim that pre-emptive self-defence is lawful. After all, NAM has consistently denounced pre-emptive self-defence as unlawful.

Israel’s acknowledgment that it was responsible for the Al-Kibar attack is politically important. But it has no legal implications whatsoever.

Drone Swarming and the Explosive Remnants of War

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 January 5th of this year, a Russian air base and a nearby naval base were attacked by a swarm of 13 makeshift drones carrying explosives. This was the first known swarm attack to take place in a real battlefield and, fortunately for Russian forces, it failed: according to the Ministry of Defence, seven were shot down, while the remaining six were electronically intercepted. That said, the audacious attack has revived talks of drone swarming becoming both a future terrorist threat and a new style of warfare for traditional armed forces. Inevitably, any trend that sees more munitions deployed in the same space will raise questions on the possible humanitarian effects.

Drone Swarming in Context

Despite all the attention focused on the January attack, a serious discussion had already emerged on the use of battlefield drone swarming. Arguably, the current debate began in a seminal report by Arquilla and Ronfeldt in 2000, which pointed out that a) swarming will be an evolution of the centuries-old military doctrine of mass and maneuver, b) this seemingly amorphous tactic will in fact be “a deliberately structured, coordinated, strategic way to strike from all directions”, and c) advances in sensor and communications technologies will provide the requisite connectivity to make all this possible (as will be seen below, these principles have all stood the test of time). Accordingly, it was thought that drone swarming will become an irresistible option for both professional militaries and non-State actors alike, as commercial sector electronics advance and miniaturize.

Building on this, in a 2014 report entitled ‘The Coming Swarm’, Paul Scharre contended that drone swarming will provide a viable solution to many of the challenges faced by the US military. The problem, he argued, is that US defense capabilities may weaken in relative terms through a combination of a) the improved long-distance precision targeting capabilities of near-peer adversaries, and b) exponential rises in the cost of large military aircraft and ships, while US defense budgets only grow linearly (one of “Augustine’s Laws”). This would leave a dwindling attack capability vulnerable to easy defeat by a more accurate, precise and numerous adversary. On the other hand, by reducing the size and increasing the quantity of combat assets, US forces will benefit from “Lanchester’s Square Law.” This asserts that “twice as many units in the fight actually translates to a fourfold increase in combat power for units with aimed-fire weapons”, because while US forces can ‘double up’ on attacking enemy units, the other side can only attack half the US forces at any one time (see summary in Report Preview). The implication was clear: swarming micro-drones will become a game-changer, and will be financially viable in the face of (then) defense sequestration.

Subsequently, and from a slightly different angle, David Hambling argued in Swarm Troopers that the abundance of cheap, powerful and rapidly-advancing dual-use components from the mobile phone industry will make micro-drones and swarming capabilities easily available to non-State actors. The stark reality, Hambling argued, is that States will have to choose between a $100m fighter jet, which will be vulnerable to a single enemy strike, or 50,000 micro-drones, which will offer unparalleled resilience and attack capability when facing enemy fire. This is because “if one drone gets taken out, the others autonomously change their behavior to complete the mission.” Namely, while a single enemy strike can down the entire $100m jet, the same will usually only destroy one (or a few) micro-drones, while the overall swarm system remains intact and can carry on in battle. Again, we see suggestions that drone swarming will become an irresistible option for professional militaries; partly because of the options open to non-State actors, but with the added result that the US and near-peer adversaries like China will enter a swarm race, with potentially strategic consequences.

Pinning Down the True Nature of Drone Swarming

To be sure, the January attack on the two Russian bases was not a ‘true’ example of swarming, as each of the 13 drones appeared to be operating independently, albeit via GPS and in close proximity. As Scharre points out, true swarms will not only bring “greater mass”, but also “coordination, intelligence and speed to the battlefield” for smart maneuver (pages 5, 10 and 12 of The Coming Swarm). This suggests both a quantitative (sheer numbers) and a qualitative (collaborative algorithms) dimension. Accordingly, the most effective drone swarms will not only overwhelm and saturate enemy defenses, but will also outsmart them with “cooperative behavior among distributed elements that give rise to a coherent, intelligent whole” (page 10). Examples include autonomous regrouping after an attack, as mentioned above; or confusion tactics, such as micro-drones autonomously disaggregating to avoid detection, before reaggregating at the last moment to take the enemy by surprise.

The January attack displayed no such element, but we may expect that weapons designers will study how and why this ‘Model-T’ swarm was defeated in order to inform the development of their own collaborative algorithms for future deployment. At the very least, it is possible that the January attack inspired another swarm attack the following month by Houthi forces against the United Arab Emirates. While the status of this most recent attack is unclear, it does appear to have been more carefully executed, and it may indicate a new trend in armed conflict, against which US ground forces are currently ill-equipped to defend.

So far, only explosive micro-drones have been discussed. In reality, swarms may be developed to undertake a variety of roles, including intelligence, surveillance and reconnaissance and/or electronic warfare. However, it is swarming for kinetic attack that will pose the greatest potential humanitarian risk; those designed for offensive land attack (as opposed to naval defenses), even more so.

The ERW Aspect of Drone Swarming, and Ways to Mitigate It

Ultimately, the aim of any future drone swarm is to outsmart, saturate and overwhelm the enemy, such that even a sustained defensive attack will not prevent a few ‘leakers’ from getting through to kill, destroy or neutralize their target. This leads to two distinct but related humanitarian problems.

Firstly, where a large number of non-leakers are inevitably shot down, they will remain on former battlefields; should they fail to explode as intended, these micro-drones will very likely become explosive remnants of war (ERW), giving rise to post-conflict civilian risks. Potentially aggravating the situation is the possibility of an ‘arms race’, as noted above. As Lachow explains (at page 100), this may see ever-increasing swarm sizes being met with stronger defensive systems and increasingly large counter-swarms, leading to yet greater offensive swarms, more non-leakers being shot down, and so on. The result would arguably be a heightening of the ERW problem.

Secondly, there is the problem of the physical appearance of the micro-drones, which can bear a striking resemblance to toy airplanes. As noted in an earlier Article 36 report (at pages 10 and 44), the size, shape and color of munition remnants can make them attractive to children, who unwittingly pick them up in the expectation of playing with a toy. Downed micro-drones, particularly those that are brightly-colored, and of approximately the same size and appearance as toy airplanes, will be highly alluring to children, who may find that the apparent toy leaves them with life-changing injury.

Arguably, these post-conflict risks merit closer attention before drone swarming is deployed in significant numbers.

In a recent paper published by the Transnational Law Institute at King’s College London, I examine the drone swarming ERW problem, and provide a legal commentary of the potential application of three existing instruments that may help to address it: Protocol V of the Convention on Certain Conventional Weapons, the Convention on Cluster Munitions, and Amended Protocol II.

Protocol V (pages 22-47 of the paper) specifically addresses ERW, and it creates a number of obligations for States and non-State parties alike, though these are heavily caveated. For example:

  • Article 3, the centerpiece of the Protocol, requires parties in control of territory to mark and clear, remove or destroy ERW as soon as feasible after the cessation of hostilities. Parties not in control of territory shall, where feasible, provide technical, financial, material or human resource assistance to facilitate the marking and clearing, removal or destruction of ERW.
  • Article 4 requires that before and during the deployment of munitions that may become ERW, parties shall to the maximum extent possible and as far as practicable record and retain information on the use of such munitions, to facilitate the discharge of Article 3 obligations, amongst others. After the use of such munitions, parties shall, without delay after the cessation of active hostilities but as far as practicable, subject to their legitimate security interests, make available relevant information to the party or parties in control of the ERW-affected area.
  • Article 9 encourages States to take ‘generic preventive measures’ aimed at increasing munitions reliability, to maximize the chance that they will explode as intended, thereby minimizing the ERW risk. Such measures are largely based on the Technical Annex to the Protocol, which itself contains voluntary measures.

There are numerous other measures, the provisions of which are impressively comprehensive; yet, it is recognized that these may risk becoming both labor-intensive and financially burdensome, if mandatory. Consequently, virtually all Protocol V provisions are heavily caveated, as indicated by the italics in the above bullet points. Sadly, this may provide a ‘get out clause’ for States and other parties that do not wish to act in good faith. On the other hand, such caveats may be interpreted restrictively in the case of swarming munitions, in light of their expected technical features. Unlike ‘dumb’ munitions, micro-drones are likely to possess a range of ‘smart’ features, such as GPS, advanced electro-optical/infrared sensors, radio communication links, and (potentially) integrated diagnostics (see pages 15-19 of the paper). Collectively, these will do much of the ‘heavy lifting’ of data recording, retention and transmission, such that they remove a significant weak link, which has so far discouraged States from applying Protocol V more expansively.

Of course, some of these technical features will add to production costs, thus they may need to be legally mandated. For this reason, there are possible transplants that may be entertained from the Convention on Cluster Munitions (see the Article 2(2)(c) technical criteria) and Amended Protocol II (see Article 4 and Technical Annex). These are examined at pages 47-65 of the paper, where it is argued that they provide a possible basis to require integrated diagnostics, as a corollary to self-destruction and self-deactivation features, and munition detectability for easier clearance in a post-conflict context.

The full paper, Autonomous Weapon Systems, Drone Swarming and the Explosive Remnants of War, can be downloaded on open access from SSRN.

The PTC’s Bizarre Request for Additional Information About Afghanistan

by Kevin Jon Heller

As Patryk Labuda noted earlier today on twitter, the Pre-Trial Chamber (PTC) has ordered the OTP to provide it with additional information concerning the investigation in Afghanistan. Here are the key paragraphs of the order:

3. The Chamber observes that the Prosecutor seeks authorisation to initiate an investigation for crimes committed on the territory of Afghanistan from 1 May 2003 onwards, as well as crimes committed within the context of the situation in other States Parties from 1 July 2002 onwards.2 However, the supporting material provided, particularly in relation to the structure, organisation, and conduct of the Afghan Forces – collectively referred to by the Prosecutor as Afghan National Security Forces or Afghan National Defense and Security Forces (“ANSF”) – mostly falls within the time period 2011 to 2014. Further, little to no information has been provided regarding the structure and organisation of the Islamic State operating in Afghanistan, also refer red to as “Daesh” or “Islamic State Khorasan Province”3. Similarly, the information provided with respect to the structure of the United States of America (“US”) forces falls mainly within the period of 2001-2008, with regard to interrogation policies of the US forces within the period of 2001-2006 and with regard to the conduct of US forces within the period of 2003-2011.

4. The Chamber is of the view that further information is required for the Chamber’s determination under article 15(4) of the Statute. Accordingly, it orders the Prosecutor to submit to the Chamber the following:

a. Any publicly available report from the United Nations Assistance Mission in Afghanistan (“UNAMA”) on the treatment of detainees, apart from the reports from 2011, 2013, 2015 and 2017 already submitted;

b. Any publicly available report from the Afghanistan Independent Human Rights Commission (“AIHRC”) on torture, apart from the report from 2012 already submitted;

c. The United Nations (“UN”) Secretary-General reports to the General Assembly on the topic: “The situation in Afghanistan and its implications for international peace and security”, from the years 2003, 2004, 2010, 2013, 2014, 2015, and 2017;

d. Any publicly available report from the UN Secretary-General to the General Assembly on the topic “Children and armed conflict in Afghanistan”, apart from the report from 2008 already submitted;

e. Further clarification and information, to the extent possible, about the structure and organisation of the Islamic State operating in Afghanistan; and

f. Further clarification and information, to the extent possible, about the structure of the US forces for the time period after 2008; for the interrogation policies of the US forces for the time period after 2006; as well as for the conduct of the US forces for the time period after 2011.

This is actually the second time that the PTC has asked for more information. On 5 December 2017, it ordered the OTP to provide it with “media reports and article 15 communications concerning allegations attributed to special forces of a number of international forces operating in Afghanistan,” as well as as a list of incidents where, in the OTP’s view, “there is a reasonable basis to believe that crimes falling within the jurisdiction of the Court were committed during military operations conducted by international military forces.”

The first request made some sense, given that the PTC generally asked for information either possessed only by the OTP (the communications) or reflecting of the OTP’s internal analysis of the situation in Afghanistan (the list of incidents). The new request, however, is bizarre. To begin with, there is no reason that the PTC could not obtain the information in the first four categories itself, given that it specifically wants the OTP to provide it with “publicly available” information. I know for a fact that the judges have legal officers and access to google. Any reasonably competent researcher could obtain the relevant reports in an hour or so.

A similar criticism could be offered of category five — assuming that the request is not based on the PTC’s belief that the OTP has non-public information about the structure of IS — as well as of the first two requests in category 6. After all, the OTP’s information about interrogation policies comes largely from publicly available sources such as the summary of the Senate Torture Report.

The final request in category 6 — about the conduct of US forces after 2011 — makes some sense, given that the PTC is basically asking the OTP to justify its conclusion that there is a reasonable basis to believe US forces are responsible for mistreating detainees. But I share Patryk’s confusion about why the PTC thinks it needs that information to decide whether to authorize the Afghanistan investigation. Art. 15(4)’s “reasonable basis to proceed” standard is anything but onerous. Such a basis exists, according to Art. 53, as long as the available information (1) “provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed”; (2) admissibility is not an issue; and (3) there are no “substantial reasons to believe that an investigation would not serve the interests of justice.” There is no question that the OTP’s request for authorization satisfies requirements 1 and 3, and it cannot seriously be argued that complementarity — the first aspect of the admissibility requirement — counsels against opening the Afghanistan investigation. As the request itself notes, none of the relevant parties (the Afghan government, the US government, and the armed groups) have have investigated or prosecuted those most responsible for international crimes in Afghanistan.

Which leaves gravity, the other aspect of admissibility. The only plausible interpretation of the PTC’s order is that it does not think it can assess the gravity of the situation in Afghanistan without the requested information. But that makes little sense. Can it be seriously maintained that the collective actions of the Afghan military between 2011 and 2014, the actions of the Taliban and IS since 2003, and the actions of US forces and the CIA between 2003 and 2011 are not sufficiently grave to warrant a proprio motu investigation? I dare anyone to read the OTP’s superbly argued and documented 181-page request for authorization and reach that conclusion. (Especially when Afghanistan is compared to, say, the Burundi investigation, which the PTC had no trouble authorizing.)

To be sure, that does not mean the OTP has provided sufficient information concerning the actions of all of the parties at all of the relevant times. But that is where the final clause of Art. 15(4) comes in (emphasis mine):

 If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

If the OTP brings a case against an individual whose criminal responsibility cannot be properly assessed without additional information of the kind the PTC wants, it can demand that information when the defendant challenges admissibility or the OTP seeks confirmation of charges. There is no reason why the PTC should demand that information now.

I have little doubt that the OTP will quickly comply with the PTC’s order. But there is no legal or evidentiary reason why it should have to. The PTC already has more than enough information at its disposable to authorize the Afghanistan investigation.

No, There Is No International Legal Basis for the “Bloody Nose” Strategy

by Kevin Jon Heller

At Lawfare yesterday, two law professors at West Point defended the US’s right to attack North Korea if it tests another nuclear weapon or fires another missile into Japanese waters:

North Korea is extraordinarily close to becoming a . This very real possibility has reportedly resulted in the United States debating a limited military strike dubbed the “bloody nose” strategy. In effect,  would allow for a timely and proportional response against North Korean sites in the event of another nuclear test or missile launch. For , such a strike might include using force to target a North Korean missile site or a military base. The hope would be that such a strike would “” and “illustrate the high price the regime could pay for its behavior” without “igniting an all-out-war on the Korean Peninsula.”

In the authors’ view, “[t]here is a strong argument such a strike would be lawful” either as collective self-defense of Japan or as individual self-defense by the US.

I disagree.

The fundamental problem is that “another nuclear test or missile launch” would not qualify as an armed attack sufficient to give rise to the right of either collective or individual self-defense. The authors make no attempt to explain how another nuclear test would be an armed attack — which is not surprising, given that previous tests have all been on North Korean territory (with terrible consequences for North Koreans). And here is their argument concerning another conventional missile launch:

More difficult is determining whether North Korea’s current behavior justifies the limited military strike proposed in the “bloody nose” strategy. Consider, for example, another North Korean test in which it launches an unarmed missile into Japanese sovereign territory. Arguably, a test rocket without armed explosives is merely a delivery system, not a “weapon.” On the other hand, such a rocket is capable of causing “” and thus could be construed as a “weapon.” According to the and the , a “[b]ombardment by the armed forces of a State against the territory of another State, or the use of any weapons by a State against the territory of another State” is an act of aggression. Such a North Korean missile launch would seem to fall within this definition and could  as an armed attack.

On the contrary, such an interpretation would not be reasonable — even if we accept the idea that an unarmed missile is a weapon. Tom Ruys has carefully analysed state practice concerning when a de minimis attack qualifies as an armed attack for purposes of self-defense. Here is his conclusion (p. 155; emphasis mine):

In the end, customary practice suggests that, subject to the necessity and proportionality criteria, even small-scale bombings, artillery, naval or aerial attacks qualify as ‘armed attacks’ activating Article 51 UN Charter, as long as they result in, or are capable of resulting in destruction of property or loss of lives. By contrast, the firing of a single missile into some uninhabited wasteland as a mere display of force, in contravention of Article 2(4) UN Charter, would arguably not reach the gravity threshold.

The attack that the authors imagine — an unarmed missile fired into Japan’s territorial sea — is precisely the kind of attack that is not “capable of resulting in destruction of property or loss of lives.” That attack thus cannot give rise to the right of self-defense. Indeed, even the source that the authors cite, Karl Zemanek’s entry “Armed Attack” in the Max Planck Encyclopedia of International Law, rejects their insistence that an unarmed missile fired into Japan’s territorial sea could “reasonably be interpreted as an armed attack.” Here is what Zemanek says about de minimis attacks (emphasis mine):

In sum, it is submitted that regardless of the dispute over degrees in the use of force, or over the quantifiability of victims and damage, or over harmful intentions, an armed attack even when it consists of a single incident, which leads to a considerable loss of life and extensive destruction of property, is of sufficient gravity to be considered an ‘armed attack’ in the sense of Art. 51 UN Charter.

The authors’ claim that the US would be entitled to act in “collective self-defense” in response to an “armed attack” in the form of an unarmed missile fired into Japan’s territorial waters is also problematic. Here is their argument:

The 1960  of Mutual Cooperation and Security between the United States and Japan states “[e]ach Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes.” This treaty may provide a basis for the United States’ to engage in a limited retaliatory strike. One could argue that, pursuant to the 1986  out of the International Court of Justice (ICJ), the United States would have to obtain Japan’s affirmative consent before engaging in a strike against North Korea in collective self-defense. However, Article 51 certainly does not refer to any such prerequisite, and the ICJ’s conclusion in Nicaragua is . On a more practical note, it is highly unlikely  a collective self-defense strike by the United States.

It is not clear why the authors believe that Japan would not need need to specifically consent to “collective self-defense.” There are two possible interpretations of their argument: (1) the Treaty of Mutual Cooperation automatically provides the US with the consent it needs to “defend” Japan in case of an armed attack; (2) collective self-defense never requires the consent of the attacked state. The authors’ criticism of the Nicaragua judgment implies that they take position (2). As Ruys explains, however, state practice — from Jordan in 1958 to South Vietnam in 1965 to the Soviet invasion of Afghanistan in 1980 — indicates that collective self-defense is lawful only when the state with the right of individual self-defense requests it (pp. 88-89):

This brings us to the third and decisive reason why the conception of collective ‘defence of the other’, endorsed by the ICJ and a majority of legal scholars, holds the upper hand over the ‘defence of the self’ approach: customary practice provides virtually no support either for the requirement that a proximity relationship should exist, or for the idea that collective self-defence may be exercised absent the approval of the actual victim State. On the contrary, practice convincingly shows that a State which is the subject of an attack has a legal right to ask for military assistance.

[snip]

In sum, in each case, what was deemed crucial was whether the actual victim State had a right of individual self-defence, and whether it approved of the actions of the assisting State. Of course, the assisting State will most often have some sort of interest in responding to the victim’s request; States seldom engage in military action out of pure altruism. Yet, practice makes clear that a proximate relationship is not a legal criterion; only the victim State’s approval is.

The stronger argument, then, is that the Treaty of Mutual Cooperation would automatically provide the necessary consent for US to engage in “collective self-defense.” Aurel Sari raised this possibility on Twitter last night. I am not convinced that the Treaty eliminates the need for Japan’s consent to armed force being used on its behalf. In particular, Art. IV provides that “[t]he Parties will consult together… at the request of either Party, whenever the security of Japan or international peace and security in the Far East is threatened,” which seems to contemplate acts of self-defense being undertaken only with the specific agreement of both Japan and the US. But Aurel’s argument must still be taken seriously, and it provides the only coherent basis for the authors’ position on collective self-defense.

(As an aside, I find very unconvincing the author’s casual assertion that “it is highly unlikely  a collective self-defense strike by the United States.” On the contrary, I think Japan would be quite likely to oppose the US responding to a unarmed missile attack by using force — even relatively restrained force — directly against North Korea. A North Korean response would be more likely to target Japan than the US. So Japan would have every incentive not to consent to “collective self-defense” in such a situation.)

Finally, I find very unconvincing the author’s insistence that the US is close to having an individual right of self-defense against North Korea:

Even without another missile targeting Japan, the United States could arguably rely on its own Article 51 individual right of self-defense to justify a “bloody nose” strike. While somewhat controversial, the United States interprets the individual right of self-defense to allow for a preemptive-but-proportional  when the need to do so is . In other words, if the United States determines North Korea’s behavior indicates a forthcoming attack it can act in self-defense before absorbing the first blow.

North Korea’s recent activities help support a preemptive self-defense argument. Despite extensive efforts by the international community, including through , and , North Korea continues to defiantly test powerful nuclear weapons and launch ballistic missiles. Furthermore, it has gone to great lengths to conceal its nuclear testing program by creating underground facilities and intricate . This behavior, coupled with North Korea’s pattern of  and  against the United States and other nations, makes a preemptive use of force seem more and more . As the North Korean threat increases and non-military measures are exhausted, it becomes reasonable to believe that the last opportunity for the United States to act is fast approaching.

There is no question that the US would have the right to act in self-defense to prevent an imminent attack by North Korea — anticipatory self-defense. But the authors seem to adopt an understanding of self-defence’s necessity requirement that goes well beyond the traditional Caroline standard of imminence, according to which the need to act must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” They specifically argue for preemptive self-defense, a term that the US traditionally uses to describe self-defense against attacks that are not imminent.(The Bush doctrine is an example.) And they invoke the “last opportunity to act” test, which is not necessarily inconsistent with anticipatory self-defense, but can easily be interpreted to allow for preemptive self-defense, as Adil Haque nicely explains here.

If the authors are endorsing a view of self-defense that does not require an imminent attack, their position is clearly wrong. Here is Ruys again (pp. 336-38):

[T]here can be no doubt that even among States adhering to the “counter-restrictionist” view, support for self-defence against non-imminent threats is virtually non-existent. Apart from the fact that the sponsors of Operation “Iraqi Freedom” avoided this justification, it may be observed that many States, such as Germany, Japan, Switzerland, Uganda, Singapore or Liechtenstein, which professed support for anticipatory self-defence after 2002, nonetheless placed great weight on the imminence requirement. Germany, for instance, expressly denounced an erosion of the Charter framework and State practice via the notion of “preventive self-defence.” Likewise, the French politique de defense unequivocally “rejects… the notion of preventive self-defence.”

What is more, even the “traditional” adherents of the counter-restrictionist interpretation of Article 51 generally appear to uphold the imminence requirement. Despite bold statements by its Prime Minister on the need to adapt the UN Charter, Australia’s response to “In Larger Freedom” was rather cautious: it simply “[supported] reaffirmation by the Secretary-General that Article 51 of the Charter adequately covers the inherent right to self-defence against actual and imminent attack.” Israel called for an explicit recognition in the World Summit Outcome that States may use force in self-defence “in the event of both actual and imminent attacks.” As far as the British position is concerned, Attorney- General Lord Goldsmith in 2004 declared before the House of Lords that: “It is… the Government’s view that international law permits the use of force in self-defence against an imminent attack but does not authorize the use of force to mount a pre-emptive strike against a threat that is more remote.”…

[W]e may therefore conclude that the trend in State practice has been broadly similar to that in legal doctrine: support for anticipatory self-defence has increased, but has by and large restricted this concept to imminent threats.

By contrast, if the authors believe that an imminent attack is required but want to define “imminent” to include the “last opportunity to act” test,” they are not necessarily arguing for an unlawful version of self-defense. It depends on how broadly they interpret “last opportunity to act.” An acceptably narrow definition of the test does, however, seem inconsistent with the authors’ insistence that “[a]s the North Korean threat increases and non-military measures are exhausted, it becomes reasonable to believe that the last opportunity for the United States to act is fast approaching.” To begin with, although there is certainly cause for concern, North Korea does not seem particularly close to having the technology necessary to attack the US mainland with a nuclear missile. Moreover — and more importantly — despite its belligerence and bluster, there is little evidence that North Korea actually wants to attack the US, much less intends to do so as soon as possible. North Korea has long had the ability to launch a conventional attack against numerous US installations overseas — and probably now has the ability to reach the US mainland with a conventional missile. Yet no such attack has ever taken place.

Is it possible that, at some point, the US will have the legal right to attack North Korea in self-defense? Absolutely. But that time is not now — even if North Korea fires another unarmed missile into Japanese territorial waters. And there is little reason to believe that the “last opportunity for the United States to act is fast approaching.” Any argument at present for the “bloody nose” strategy, therefore, is both legally unsound and profoundly counterproductive.

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.

Conclusion

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.

Cyber Operations and GCII Obligations to “Respect and Protect”

by Jeffrey Biller

[Jeffrey Biller, Lt Col, USAF, is the Associate Director for the Law of Air, Space and Cyber Operations at the Stockton Center for the Study of International Law, US Naval War College.]

The use of hospital ships in wartime has always been a contentious issue. Although serving a humanitarian need recognized by most parties, profound suspicion of their misuse led to many attacks against these protected vessels, particularly during the First and Second World Wars. Although some attacks resulted from misidentification, many were quite intentionally targeted. Unrestricted submarine warfare campaigns often included deliberate attacks on hospital ships. One such example was the Soviet hospital ship, the Armenia. On 7 November 1941, a German torpedo bomber attacked the Armenia, sinking her without warning. All but 8 of the 7,000 on board died in the attack.

Although a tragedy by any measure, there were several questions as to her status as a hospital ship. The Armenia was clearly marked with large Red Cross symbols and was certainly being used appropriately at the time. However, she also had light anti-aircraft weapons on board, was under armed escort, and had been previously used in the conflict to transport military supplies. This incident, and many others like it, demonstrated the need to clarify and progress the rules related to the protection of hospital ships in the Second Geneva Convention (GCII). This post, the fourth in a series (see here, here, and here) examining the impact of cyber on the law of naval warfare through the lens of the updated commentary to GCII, analyzes the obligation to “respect and protect” hospital ships and coastal rescue craft, found in Articles 22, 24 and 27, in the light of cyber operations.

First, it should be stated that Article 22’s obligation to respect and protect includes the more specific language that protected vessels “in no circumstances be attacked or captured.” Although the obligation to respect and protect is broader than these specific terms, it is helpful nonetheless as “attack” is an IHL term of art that has been frequently analyzed in the cyber context. Para 1985 explicitly states that the prohibition on attack includes “the use of means and methods that, by whatever mechanisms or effects, severely interfere with the functioning of the equipment necessary for the operation of a military hospital ship, such as so-called ‘cyber-attacks’.” Given that the commentary references the Tallinn Manual’s Rule 70 here, it is helpful to follow the reference for further analysis.

The black letter rule in the Tallinn Manual states that medical personnel and transports, including those vessels identified in GCII, “may not be made the object of a cyber attack.” Recall, cyber attack is the exact phrase used in para 1985. Although not defined in the commentary, Tallinn’s Rule 30 defines cyber attack as “a cyber operation, whether offensive or defensive, that is reasonably expected to cause injury or death to persons or damage or destruction of objects.” It is well understood that the Tallinn Manual is only the opinion of a group of experts and therefore not primary law. However, Rule 30’s definition tracks with the Additional Protocol (I) definition of attack, requiring “acts of violence against the adversary.” Thus, the commentary and the Tallinn Manual appear to agree that cyber operations resulting in injury or death, and (at least) physical damage and destruction, to a protected crew or vessel are prohibited. The logical follow-on question is whether “damage” to a network system includes the pure loss or degradation of functionality. The law here is unsettled and thus the loss of functionality, on its own, cannot be read definitively to qualify as an attack.

However, both the updated commentary and the Tallinn Manual agree the requirement to respect and protect goes beyond attacks. The commentary summarizes the extended obligation to respect and protect in para 1996 as the obligation “to refrain from all actions that interfere with or prevent such ships from performing their humanitarian tasks.” Therefore, cyber operations are prohibited that result in loss or degradation of network functionality necessary to a protected vessel’s performance of its humanitarian function.

Para 1996 does include a qualifier to that protection, referencing the Article 31 allowance for parties to the conflict to “control and search the vessels mentioned in Articles 22, 24, 25 and 27.” This includes the right to “control the use of their wireless and other means of communication” and “put on board their ships neutral observers who shall verify the strict observation of the provisions contained in the present Convention.” These “control and search” provisions are in place “to verify whether their employment conforms to the provisions of Articles 30 and 34 and to the other provisions of the Convention,” as para 2276 puts it. Recognizing that a physical presence in no longer required to verify compliance, para 2277 suggests “innocent employment of these vessels can often be ascertained by other means, at least to some extent, in particular by satellites and other means of reconnaissance.” This could indicate that cyber intelligence operations are appropriate that, while not affecting the functionality of the vessel, are used to verify its compliance with the convention. Indeed, this was the conclusion drawn by the Tallinn Manual’s group of experts in the commentary to Rule 71, governing the requirement to respect and protect computer systems related to medical units and transports.

This analysis leaves open questions regarding several potential categories of cyber operations. For example, cyber intelligence operations not for the purpose of compliance verification, but rather the collection of intelligence regarding associated forces. Another potential is the use of protected naval vessels as a pass through to levy cyber effects against non-protected enemy systems. These and other examples may not explicitly violate the terms of protection in GCII, but nevertheless open the possibility of protected vessels becoming a cyber-battleground. This could divert protected vessels from focus on their missions and raise the likelihood of unintentional damage to network systems vital to the performance of their humanitarian mission. Given the ambiguity present in this aspect of the law, and the importance of protecting humanitarian missions, perhaps the obligation to respect and protect is an area where nations can work together to develop ever-elusive cyber norms.