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Law of War

IHL Does Not Authorise Detention in NIAC: A Response to Murray

by Kevin Jon Heller

Over the past couple of years, a number of scholars — including me — have debated whether IHL implicitly authorises detention in non-international armed conflict (NIAC.) The latest intervention in the debate comes courtesy of Daragh Murray in the Leiden Journal of International Law. As the article’s abstract makes clear, Murray is firmly in the “IHL authorises” camp:

On the basis of current understandings of international law – and the prohibition of arbitrary detention in particular – it is concluded that international humanitarian law must be interpreted as establishing implicit detention authority, in order to ensure the continued regulation of armed groups.

I disagree that IHL cannot regulate non-state actor (NSA) detention in NIAC unless it authorises that detention, for reasons I will explain in this post. Before we get to Murray’s argument, however, it is important to remind ourselves of what is at stake in the debate. Put simply, if Murray is right and IHL authorises NSAs to detain, two significant consequences follow: (1) states have no right to prosecute NSAs who detain government soldiers, even if such detention would qualify as kidnapping or wrongful imprisonment under domestic criminal law; and (2) NSAs have the right to detain government soldiers for as long as they pose a “security threat” to the NSA — ie, essentially forever. In other words, FARC could detain a Colombian soldier for five decades and Colombia couldn’t prosecute the commander responsible for that detention as long as FARC complied with NIAC’s procedural restrictions on detention.

Now let’s turn to Murray’s argument. Here are the critical paragraphs in the article:

[I]nternational law cannot regulate activity that is subject to an absolute prohibition. For example, instances of torture cannot be regulated as torture is subject to an absolute prohibition. The same is true with respect to armed group detention in non-international armed conflict: the absolute prohibition of arbitrary detention precludes the possibility of regulating arbitrary detention (p. 9)

Two possibilities are open: either international humanitarian law establishes an implicit legal basis for detention, or it does not and the authority to detain must be established elsewhere. If international humanitarian law does not establish an implicit legal basis for detention then all instances of detention by armed groups will necessarily violate the prohibition of arbitrary detention as a legal basis for armed group detention does not exist under domestic law or elsewhere in international law. Yet, to interpret Common Article 3 and Article 5 Additional Protocol II in this way is to conclude that states have developed international treaty law to regulate detention operations by armed groups, despite the fact that all instances of armed group detention are illegal. This interpretation is incapable of giving effect to states’ intentions, and to the object and purpose of the provisions themselves. As discussed above, states cannot regulate that which is absolutely prohibited, and so the only means by which Common Article 3 and Article 5 Additional Protocol II can regulate detention by armed groups is if these provisions establish an implicit legal basis for that detention  (p. 14)

The first thing to note is that the torture analogy is misplaced. International law does indeed absolutely prohibit torture. But it does not absolutely prohibit detention — not even in NIAC. On the contrary, a state is free to detain as long as it adopts the necessary domestic legislation. It is even free to domestically authorise an NSA to detain, as well. (Which is not absurd. A state may well conclude that an NSA is more likely to treat captured government soldiers humanely if it does not prohibit the very act of detention.) So what Murray is actually arguing is that because most states choose not to authorise NSAs to detain, international humanitarian law (IHL) necessarily authorises it for them so they can regulate that detention. That’s a very puzzling claim, given that states are the authors of IHL.

The fundamental problem with Murray’s position, however, is that it is simply not the case that IHL can’t regulate a practice that international law absolutely prohibits. I will discuss in a minute the situation regarding detention in NIAC, in which the regulation and the prohibition come from different legal regimes — regulation from IHL, prohibition from international human rights law (IHRL). But before doing so, it is worth noting that Murray’s argument does not work even when the regulation and the prohibition come from the same legal regime — a situation in which you would think Murray’s argument would be even stronger…

America’s Hubris, Cambodia Version

by Kevin Jon Heller

It is difficult to overstate the horrors the US inflicted on Cambodia from the air during the Vietnam War: 230,000 sorties involving 113,000 different sites; 500,000 tonnes of bombs, as much as the US dropped in the entire Pacific theatre during WW II; at least 50,000, and probably closer to 150,000, innocent civilians killed. Even worse, that bombing campaign, along with the US-backed coup against Prince Sihanouk in 1970, is widely credited with helping bring Pol Pot and the Khmer Rouge to power, and we know how that turned out — at least 1.7 million Cambodians murdered, an auto-genocide of epic proportions.

The US has never apologized for its actions in Cambodia. President Obama didn’t even mention the Vietnam War when he became the first President to visit Cambodia in 2012. The Trump administration, however, is not afraid to discuss Vietnam. On the contrary, it is currently very interested in discussing US actions during the war — to demand that Cambodia pay back $500 million it owes the US for providing support to Lon Nol’s unpopular regime:

The debt started out as a US$274 million loan mostly for food supplies to the then US-backed Lon Nol government but has almost doubled over the years as Cambodia refused to enter into a re-payment program.

William Heidt, the US’s ambassador in Phnom Penh, said Cambodia’s failure to pay back the debt puts it in league with Sudan, Somalia and Zimbabwe.

“To me, Cambodia does not look like a country that should be in arrears…buildings coming up all over the city, foreign investment coming in, government revenue is rapidly rising,” Mr Heidt was quoted as saying by the Cambodia Daily.

“I’m saying it is in Cambodia’s interest not to look to the past, but to look at how to solve this because it’s important to Cambodia’s future,” he said, adding that the US has never seriously considered cancelling the debt.

Look forward, not backward. Where have we heard that before?

I have little doubt that Cambodia’s debt to the US is valid under international law. But that does not mean the US has the moral right to demand payment — much less to compare Cambodia to debt scofflaws like Zimbabwe. (How much does the US owe the UN right now? It was almost $3 billion at the end of 2015.) As James Pringle, Reuters bureau chief in Ho Chi Minh city during the Vietnam War, recently wrote in the Cambodia Daily, “Cambodia does not owe even a brass farthing to the U.S. for help in destroying its people, its wild animals, its rice fields and forest cover.”

But what do I know? Perhaps Donald Trump needs the $500 million to finance the US’s current bombing campaigns in Iraq, Libya, Somalia, Syria, Yemen, Pakistan, and Afghanistan.

Or to build the wall between the US and Mexico.

Two Positions at PHAP

by Kevin Jon Heller

PHAP — Professionals in Humanitarian Assistance and Protection — is advertising two positions in Geneva that might be of interest to readers. The first is Policy Coordinator:

The International Association of Professionals in Humanitarian Assistance and Protection (PHAP) is looking for an experienced policy professional to support the association’s efforts to foster new perspectives on critical issues affecting the humanitarian sector through inclusive and objective discussion. This is a new position.

Building on the association’s trend monitoring efforts, the Policy Coordinator will analyze a variety of emerging and developing challenges affecting humanitarian work. When priority issues are identified, the Policy Coordinator is accountable for setting up and supporting issue-focused member committees, assisting in organizing their discussions and supporting the association’s efforts to engage on priority policy issues.

The second is Communications Officer:

The International Association of Professionals in Humanitarian Assistance and Protection (PHAP) is looking for a dynamic communications professional to join the association’s secretariat in Geneva, Switzerland.

The Communications Officer is accountable for implementing and further developing the association’s public and member communication strategies.

I have worked with PHAP for years, conducting IHL trainings all around the world. It is an exceptional organisation that does interesting and important work. Definitely apply if one of the positions sound right for you! The deadline is coming soon — this Sunday, March 12, for both positions.

Symposium on Asia and International Law

by Chris Borgen

The forthcoming issue of the European Journal of International Law will feature an article by Professor Simon Chesterman, the Dean of the National University of Singapore’s Faculty of Law, entitled Asia’s Ambivalence About International Law and Institutions: Past, Present and Futures. This week, Opinio Juris and EJILTalk will hold a joint symposium on the two blogs on Professor Chesterman’s article.

The article’s abstract explains:

Asian states are the least likely of any regional grouping to be party to most international obligations or to have representation reflecting their number and size in international organizations. That is despite the fact that Asian states have arguably benefited most from the security and economic dividends provided by international law and institutions. This article explores the reasons for Asia’s under-participation and under-representation. The first part traces the history of Asia’s engagement with international law. The second part assesses Asia’s current engagement with international law and institutions, examining whether its under-participation and under-representation is in fact significant and how it might be explained. The third part considers possible future developments based on three different scenarios, referred to here as status quo, divergence and convergence. Convergence is held to be the most likely future, indicating adaptation on the part of Asian states as well as on the part of the international legal order.

The symposium will begin on Monday with an opening post by Professor Chesterman, followed by posts on Opinio Juris by Professor Tony Anghie of the National University of Singapore and on EJILTalk by Professor Eyal Benvenisti of Cambridge University.  On Tuesday, Opinio Juris will have commentary by Professor B.S. Chimni of Jawaharlal Nehru University and EJILTalk will have a piece by Professor Robert McCorquodale of the University of Nottingham and the Director of the British Institute of International and Comparative Law.   Wednesday will have observations and reactions on Opinio Juris by Judge Xue Hanqin  of the International Court of Justice and on EJILTalk by Judge Paik Jin-Hyun of the International Tribunal for the Law of the Sea. Finally, there will be a closing post pn both blogs by Professor Chesterman on Thursday.

We hope you will join us on both blogs for the discussion.

Boer on Footnotes in Use of Force Scholarship

by Kevin Jon Heller

My friend Lianne Boer, who recently finished her PhD at VU Amsterdam, has just published a fantastic article in the Leiden Journal of International Law entitled “‘The greater part of jurisconsults’: On Consensus Claims and Their Footnotes in Legal Scholarship.” Here is the abstract:

This article portrays the use of consensus claims, as well as their substantiation, in the debate on cyber-attacks and Article 2(4) of the UN Charter. Focusing on (re)interpretations of the prohibition on the use of force in the light of cyber-attacks, the article first shows how scholars appeal to the ‘majority opinion’ of scholars or the ‘generally accepted’ interpretation of the norm. It points out the different uses of these ‘consensus claims’, as I refer to them, and what scholars invoke exactly when referring to this elusive majority. Elaborating on this ‘elusive’ nature of consensus, I argue that the appeal of a consensus claim lies precisely in its invocation of a fairly mystical ‘out there’. Consensus, as it turns out, evaporates the moment we attempt to substantiate it, and this might be precisely where its strength lies. The second part of the article thus shifts focus to how these claims are substantiated. An empirical inquiry into the footnotes supporting consensus claims reveals that, most of the time, writers refer to the same scholars to substantiate their claims. Making use of Henry Small’s idea of ‘concept symbols’, the article argues that these most-cited scholars turn into the ‘bearers’ of majority opinion. On the level of the individual academic piece, the singular reference might appear to be fairly innocent. Yet, when considered as a more widespread practice of ‘self-referentiality’, it seriously impacts who gets a say – and thus, ultimately, what we know – in international law.

This is truly innovative scholarship — the kind of work that makes you ask yourself, “why didn’t I think of that?” Well, Lianne did think of it. And I hope her article, as well as her dissertation, spurs similar work in other areas of international law.

Read Boer!

Addendum to Goodman: Saudis Haven’t Promised to Stop Using Cluster Munitions

by Kevin Jon Heller

The inestimable Ryan Goodman has a new post at Just Security listing all the times the Saudis denied using cluster munitions in Yemen. As Ryan points out, we now know that those denials were what I like to call “shameless lies” (emphasis in original):

On Monday, British Defense Secretary Michael Fallon told the House of Commons that following the UK’s own analysis, the Saudi-led coalition has now admitted to using UK manufactured cluster munitions in Yemen. Mr. Fallon heralded the “transparent admission” by the coalition, and added, “we therefore welcome their announcement today that they will no longer use cluster munitions.” Many news outlets ran a headline focused on the Saudi-led coalition’s statement that it would stop using cluster munitions in Yemen (including Al Jazeera, Fox, ReutersUPI).

Lost in the news coverage is the Saudi-led coalition’s  consistent pattern of denial of using cluster munitions.

So, let’s take a walk down memory lane. At the end, I will discuss the significance of this pattern of denial for future policy options on the part of the United States and the United Kingdom.

At the heart of Monday’s revelations were allegations of the use of cluster munitions by Amnesty International, and here’s a key point: Riyadh previously assured the UK government that it had not used cluster munitions in response to Amnesty’s allegations.

Ryan’s post is very important, particularly its discussion of how Saudi Arabia’s admission could affect the US and UK. I simply want to point out something that also seems to have been lost in all the media coverage: Saudi Arabia did not promise to stop using cluster munitions in Yemen.

No, it promised to stop using British-made cluster munitions in Yemen. From Al Jazeera:

“The government of Saudi Arabia confirms that it has decided to stop the use of cluster munitions of the type BL-755 and informed the United Kingdom government of that,” said the Saudi statement, carried by state news agency SPA.

If Saudi Arabia only had BL-755 cluster munitions, its announcement today might be meaningful. But we know from investigations conducted by Human Rights Watch that Saudi Arabia has also used US-made cluster munitions in Yemen, particularly the CBU-105 Sensor Fuzed Weapon:


Nothing in the Saudi statement rules out continuing to use American-made cluster munitions in Yemen. Only British ones are off the table. And if you believe that I am parsing the statement too carefully — well, I’d suggest reading Ryan’s post. Saudi Arabia cannot be trusted to tell the truth about the brutal UK- and US-backed counterinsurgency it is waging in Yemen. Full stop.

A Brief Rejoinder to Haque on the ICRC’s Interpretation of NIAC

by Kevin Jon Heller

My thanks to Adil Haque for his response to my post. Adil and I rarely disagree in any profound way about IHL, so it’s enjoyable to spar with him about whether a first-strike by government forces against an organized armed group automatically creates a NIAC — thus triggering IHL — or whether a certain intensity of hostilities between the two is required.

I will have more to say about Adil’s response soon, but I wanted to quickly address one particular implication in his post: namely, that the ICRC’s Commentary on AP II supports his claim that a single military operation by government forces or by an organized armed group is sufficient to trigger a NIAC because it is more than a “sporadic act of violence.” Here is what he writes:

In my view, a military operation by State armed forces that meets with no armed response and may never be repeated is not a “sporadic act of violence” within the meaning of APII 1(2). On this point, I follow the ICRC Commentrary to APII, which negatively defines “isolated and sporadic acts of violence, as opposed to military operations carried out by armed forces or armed groups.” APII 1(2) describes disturbances and tensions created by disorganized or unarmed groups, criminal gangs, and individuals. APII 1(2) does not describe “acts of violence against the adversary in offence or defence” (that is, attacks as defined by API).

With the exception of ambiguous quotes like the one above, there is little support in the ICRC’s Commentary on AP II or in any of the ICRC’s commentaries for Adil’s position. The ICRC clearly believes that any kind of NIAC — AP II or Common Article 3 — requires adequately intense hostilities.

Let’s start with the AP II Commentary Adil cites. The Commentary opens its discussion of AP II by emphasizing (p. 1343) that CA3 and AP II have the same structure — and that neither applies in the absence of sufficiently intense hostilities (emphasis mine):

The content and scope of all of these articles will be analysed in the respective comments on them. Before doing this it seems useful to have a closer look at the basic pattern of Part I, which reveals the similarity of the ideas which inspired Protocol II and common Article 3. To understand the scope of the Protocol one should indeed always bear in mind the fact that this instrument supplements and develops common Article 3; it is an extension of it, and is based on the same structure.l Their common characteristics find expression, explicitly or implicitly, in Part I. These can be summarized as follows…

The threshold where Protocol II becomes applicable is determined by the criteria expressed in Article 1 (Material field of application), which means that it is intended to apply only to conflicts of a certain degree of intensity.

Later, the Commentary discusses (p. 1355) what AP II means by “internal disturbances,” taking the position that such disturbances include situations in which military operations by government forces — even against an organized armed group — do not lead to sufficiently intense hostilities (emphasis mine):

[T]he ICRC gave the following description of internal disturbances during the first session of the Conference of Government Experts in 1971:

“This involves situations in which there is no non-international armed conflict as such, but there exists a confrontation within the country, which is characterized by a certain seriousness or duration and which involves acts of violence. These latter can assume various forms, all the way from the spontaneous generation of acts of revolt to the struggle between more or less organized groups and the authorities in power. In these situations, which do not necessarily degenerate into open struggle, the authorities in power call upon extensive police forces, or even armed forces, to restore internal order. The high number of victims has made necessary the application of a minimum of humanitarian rules.”


In short, as stated above, there are internal disturbances, without being an armed conflict, when the State uses armed force to maintain order; there are internal tensions, without being internal disturbances, when force is used as a preventive measure to maintain respect for law and order.

Finally the Commentaries specifically point out (p. 1356) that such “internal disturbances” do not create a NIAC and do not trigger IHL:

Internal disturbances and tensions are not at present within the field of application of international humanitarian law; the ICRC has carried out activities in this field on an ad hoc basis. However, this does not mean that there is no international legal protection applicable to such situations, as they are covered by universal and regional human rights instruments. 31 It is not within the scope of this commentary, however, to go into that subject.

The ICRC’s position on CA3 and AP II NIACs — as requiring hostilities of a certain intensity, and thus as not being triggered by “first strikes” — is an old one. Here is what Pictet said (p. 49) in the ICRC’s 1952 Commentary on the First Geneva Convention (emphasis mine):

[I]t was suggested that the term “conflict” should be defined or, which would come to the same thing, that a certain number of conditions for the application of the Convention should be enumerated. The idea was finally abandoned — wisely, we think. Nevertheless, these different conditions, although in no way obligatory, constitute convenient criteria, and we therefore think it well to give a list of those contained in the various amendments discussed; they are as follows:

(1) That the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention.

(2) That the legal Government is obliged to have recourse to the regular military forces against insurgents organized as military and in possession of a part of the national territory.

This statement only implicitly endorsed an intensity requirement, so Pictet clarified that the was talking about actual hostilities between government forces and an organized armed group in the ICRC’s 1960 Commentary on the Third Geneva Convention (p. 37):

Speaking generally, it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with armed forces on either side engaged in hostilities –conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country.

And just in case that statement remained ambiguous (“both” would have been more precise than “either”), the ICRC clarified in its 2016 Commentary on the First Geneva Convention that of the various indicia of NIAC that Pictet discusses, intensity is one of the two most important ones (emphasis mine):

387  A situation of violence that crosses the threshold of an ‘armed conflict not of an international character’ is a situation in which organized Parties confront one another with violence of a certain degree of intensity. It is a determination made based on the facts.

421  Over time, of the criteria enumerated in the Pictet Commentaries, two are now widely acknowledged as being the most relevant in assessing the existence of a non-international armed conflict: that the violence needs to have reached a certain intensity and that it must be between at least two organized Parties/armed groups. The existence of a non-international armed conflict thus needs to be assessed according to these specific criteria.

422  The wording of common Article 3 gives some rudimentary guidance on its threshold of application: what is required is an ‘armed’ ‘conflict’ not of an international character, in which ‘Part[ies] to the conflict’ are involved. This indicates that for common Article 3 to apply, a situation of violence must have reached a certain level of intensity, characterized by recourse to arms by non-State armed groups that are capable of being Parties to an armed conflict.

According to the ICRC, in short, all NIACs require adequately intense hostilities. The difference between a CA3 NIAC and an AP II NIAC is one of degree rather than kind.

The ICRC Commentaries are only as good as the analysis they contain, so Adil is obviously free to defend an interpretation of Art. 1 of AP II and of Common Article 3 that reads the intensity requirement out of NIAC. In doing so, however, he is clearly breaking with the ICRC.

First Strikes & NIAC: Thoughts on the Haque/Horowitz Debate

by Kevin Jon Heller

I have been following with great interest the debate at Just Security between Adil Haque and Jonathan Horowitz over whether the existence of a non-international conflict (NIAC) exists the moment a state launches a “first strike” at an organized armed group or whether hostilities of a certain intensity between the two are required. Adil takes the former position (see here, here, and here); Jonathan takes the latter one (see here and here).

Though Adil’s posts exhibit his typical brilliance, my sympathies lie with Jonathan. To begin with, as a matter of the lex lata, I don’t think the argument is even close: the Tadic test, which requires both organization on the part of the armed group and adequately intense hostilities, has overwhelming support from states. After all, the test is based squarely on Art. 1(2) of Additional Protocol II, ratified by 168 states, which provides that the “Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” And, of course, as the ICRC notes in its new commentary on the First Geneva Convention, the AP II standard is used by a number of more recent conventions that apply to all NIACs — Common Article 3 or AP II — such as the Rome Statute (1998), the Second Protocol to the Hague Convention for the Protection of Cultural Property (1999), and the Convention on Certain Conventional Weapons (2001).

Adil, it is worth noting, has a different interpretation of AP II, one that does not require intensity:

In my view, if an organized armed group has the capacity to sustain military operations then any military operation by or against that group should be constrained by the law of armed conflict. The organization and capacity of the group is sufficient to distinguish military operations by or against the group from “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.”

This is a difficult position to defend. The text of Art. 1(2) of AP II clearly contemplates actual hostilities, not a single act by government forces. What could be a more “sporadic act of violence” than a single act that does not meet with a response from the targeted group and may never be repeated by the government? More importantly, despite some stray practice cited by Michael J. Adams and Ryan Goodman in this post, states have simply never interpreted the AP II standard to require only organization.

Even more problematic, though, is Adil’s argument that the “object and purpose” of IHL counsels against conditioning the application of IHL on adequately intense hostilities:

In my view, we should interpret both the substantive rules of IHL and the conditions for the application of IHL in light of the object and purpose of IHL. The primary object and purpose of IHL is to protect human beings against dangers arising from military operations. Accordingly, IHL should apply to all such military operations. To postpone the application of IHL until a first strike triggers an armed response, or until military operations reach a high level of intensity, would be inconsistent with the object and purpose of IHL.

As regular readers know, whenever I see arguments based on the supposed “object and purpose” of a treaty, I reach for my pen. All too often, such arguments simply use object and purpose to justify interpreting a treaty in a manner that specifically contradicts the intention of the states that drafted and concluded it. And unfortunately I think that is what Adil does here. He defends applying IHL to first strikes by claiming that the “object and purpose” of IHL is “to protect human beings against dangers arising from military operations” (emphasis mine). But that is misleading: the object and purpose of IHL is to protect human beings against dangers arising from military operations in armed conflict. If there is no armed conflict, IHL has nothing to say about the danger of military operations — because IHL doesn’t apply. And as discussed above, states have always insisted that a first-strike military operation is not enough to create an armed conflict — IHL applies only once there are adequately intense hostilities between government forces and the organized armed group.

Adil is free, of course, to normatively argue that IHL should apply to first strikes in NIAC because doing so would better protect human beings. I would disagree, but the claim is coherent and deserving of discussion. What he can’t do is base that claim on the object and purpose of IHL, because that would be to use an object and purpose that only applies within armed conflict to justify changing the definition of armed conflict itself. The definition of when IHL applies cannot be determined by reference to what the goals of IHL are once it applies. That definition has to be sought outside of the IHL system — and again, it is clear that states do not want IHL to apply to first-strike military operations against organized armed groups.

There is, however, an even deeper problem with Adil’s argument that the need to protect human beings from military operations counsels a definition of NIAC that does not require adequately intense hostilities: if that is true, there is also no reason why the application of IHL should require armed groups to be organized. All of Adil’s arguments against the intensity requirement apply equally to the organization requirement. If we need to protect human beings from the dangers of first-strike military operations by states against organized armed groups, surely we also need to protect them from the dangers of first-strike military operations by states against unorganized armed groups. After all, Adil’s central argument is that the inherent danger of military operations means that IHL should apply to a first-strike regardless of whether that military operation leads to any kind of hostilities.

I see no convincing response to this criticism. It is tempting to argue that the organization requirement is important because a first-strike military operation against an organized armed group is much more likely to lead to actual hostilities than a first-strike military operation against an unorganized armed group. But Adil rejects the idea that hostilities are relevant to the application of IHL. He believes IHL should apply even if a first-strike military operation meets with no response whatsoever.

Another potential response would be to argue that first-strike military operations against organized armed groups pose greater dangers for innocent civilians than first-strike military operations against unorganized armed groups. But that would be a difference of degree, not of kind — and thus far from a convincing basis for applying IHL to the former and not the latter. I’m also not sure whether the claim is even empirically sound. It is at least equally plausible to assume that states are more willing to use military force against unorganized individuals whom they can assume will not fight back (or will not fight back effectively) than against an organized armed group with the capacity to respond to a first strike with military operations of its own.

Adil’s desire to protect human beings from the dangers of military operations is laudable, but his claim that IHL should apply to first strikes against organized armed groups cannot be sustained. Not only have states insisted that IHL applies only to hostilities that reach a certain level of intensity, the idea that protecting individuals from the danger of military operations requires eliminating the intensity requirement is underinclusive. Those dangers exist for all military operations, even those against unorganized armed groups. So the only consistent — if still objectionable — position is that IHL applies to any military operation launched by a state, regardless of its object. I’m curious whether Adil would be willing to take that position.

A Quick Reply to Stephen Rapp About the US and the ICC

by Kevin Jon Heller

The inimitable David Bosco dropped quite the bombshell yesterday at The Office of the Prosecutor at the ICC intends to open a formal investigation into the situation in Afghanistan — a situation that includes, as the OTP discussed in its most recent preliminary-examination report, US torture of detainees between 2003 and 2005. I’ll have more to say about the possibility of an investigation in the coming days, when I’m a bit less harried. But I wanted to briefly respond to something Stephen Rapp, the former US War Crimes Ambassador, recently said about that torture — a comment that David reprints in a post today. Rapp contrasted US torture in Afghanistan with the kinds of crimes international criminal justice normally addresses:

[T]he alleged crimes committed during US enhanced interrogations do not reach anything like the scale of these other violations. The Durham review was looking into 101 cases of alleged abuse, including those of two detainees who died in custody. A broader inquiry could increase those number, but even with the widest scope, the numbers of victims pale in comparison to those in the situations that have come before international courts and tribunals.

As is often the case when people discuss crimes potentially within the ICC’s jurisdiction, Rapp’s comment elides the critical difference between situational gravity and case gravity. If the OTP was considering opening an investigation only into US torture in Afghanistan (not “enhanced interrogation”), Rapp would have a point — the situational gravity would almost certainly be insufficient to justify a formal investigation. Israel’s attack on the Mavi Marmara is a good point of comparison: however unjustifiable Israel’s actions, the numbers simply weren’t large enough to investigate. (And I say that as perhaps the earliest opponent of a quantitative approach to situational gravity.)

But that is not what Bosco says the OTP will do. According to Bosco, and consistent with its previous statements, the OTP will be opening a formal investigation into the situation in Afghanistan generally — not only crimes committed not by US forces, but also crimes committed by the Taliban, by Afghan government forces, and by other members of the coalition. At most, therefore, US torture will be one case within the overall situation in Afghanistan. That’s critical, because it means that the scale of US torture should be compared to the scale of crimes at issue in other individual cases the OTP has pursued, not to the scale of crimes in other situations as a whole. And there is no question that the OTP has pursued similarly limited cases. To take only the most striking example, Ahmad Al Faqi Al Mahdi was charged with and convicted of purely victimless crimes — destroying cultural property. If the Al Mahdi case was grave enough for the OTP, surely US torture in Afghanistan would be.

To be clear, I do not expect the OTP to bring charges against an American anytime soon. But if no such case materialises despite the OTP opening a formal investigation into Afghanistan, it won’t be because US torture there is insufficiently grave enough to prosecute.

NOTE: I am using Rapp’s comment to make a point, not to criticise him. I have great respect for Rapp’s commitment to international criminal justice, and I like him very much as a person.

Don’t Blame IHL for Attacks on “Hospital Shields”

by Kevin Jon Heller

Just Security published a very interesting post yesterday entitled “Military Attacks on ‘Hospital Shields’: The Law Itself is Partly to Blame,” which seeks to explain why deliberate attacks on hospitals are becoming increasingly common — in Syria, in Yemen, and elsewhere. The authors acknowledge that deliberate attacks on hospitals are almost always unlawful under IHL, because they violate the principle of distinction. But they nevertheless insist that “[t]he tragic irony is that international humanitarian law itself offers the legal toolkit for these regimes to justify the bombing of hospitals.”

The argument is provocative, but it is also misguided. And the authors’ solution is, I think, worse than the problem.

Let’s take a look at the how the authors believe IHL itself helps justify the bombing of hospitals. They cite two interrelated rules. Here is the first:

First, the logic of the human shields clauses can, it seems, quite easily be transferred to medical facilities. International law prohibits the use of civilians as human shields to protect military targets, but it also permits the attacking forces to kill human shields as long as they abide by the principle of proportionality. In this instance, then, international law ceases to protect civilians and actually becomes a weapon of the strong, protecting those who kill non-combatants. By extension, if hospitals are used as shields, they too can be bombed provided the principle of proportionality is not breached.

This argument is absolutely correct. Yes, human shields can be killed as long as they are not directly targeted and as long as an attack on the legitimate military objective they are shielding does not kill them disproportionately. And yes, the same goes for civilians objects, including hospitals, that are being used to shield military targets. But it is not clear what is problematic about either of those IHL rules, which are straightforward expressions of distinction and proportionality — unless you think that combatants should be able to render themselves completely immune from attack by hiding in hospitals. (Which is precisely what the authors think, as discussed below.) You don’t have to be soft on the military to suggest that combatants should not be able to use the protection IHL offers hospitals to gain a military advantage over their enemy.

Moreover, the authors fail to note that even though IHL permits “hospital shields” to be attacked, it imposes significant restrictions on such attacks. Most importantly, Art.19 of the Fourth Geneva Convention provides that hospitals being misused lose their protection against attack “only after due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded.” Assuming that the attacking military complies with Art. 19 (and it is hardly IHL’s fault if it doesn’t), no hospital will be attacked that has not had an opportunity to expel the military objective it is shielding. IHL thus puts so much emphasis on protecting hospitals that it would rather require an attacker to let the enemy escape unharmed rather than apply the normal targeting regime of distinction and proportionality.

A similar problem undermines the authors’ argument concerning the second rule:

Second, international law affirms that the protection to which hospitals are entitled is revoked when they are “used to commit, outside their humanitarian duties, acts harmful to the enemy.” This extremely vague formulation lends itself to those who target hospitals. Unlike IHL clauses prohibiting torture, which are absolute, applying at all times and in all circumstances, the articles relating to the bombardment of hospitals are conditional. Therefore, in certain “exceptional” situations medical facilities do lose their protected status.

This argument is vastly overstated. Is the “acts harmful to the enemy” formulation “extremely vague”? Sometimes, perhaps. But certainly not always. Art. 19 makes clear, for example, that “[t]he fact that sick or wounded members of the armed forces are nursed in these hospitals, or the presence of small arms and ammunition taken from such combatants and not yet been handed to the proper service, shall not be considered to be acts harmful to the enemy.” IHL can thus hardly be blamed when a military justifies attacking a hospital by claiming that the hospital was treating enemy soldiers. (A claim made by Afghanistan regarding the MSF hospital in Kunduz.)  Any such attack categorically violates IHL.

There is also widespread agreement about what kinds of acts do qualify as “acts harmful to the enemy.”  The ICRC’s commentary to Art. 21 of the First Geneva Convention is typical:

Such harmful acts would, for example, include the use of a hospital as a shelter for able-bodied combatants or fugitives, as an arms or ammunition dump, or as a military observation post; another instance would be the deliberate siting of a medical unit in a position where it would impede an enemy attack.

It is possible to criticise this understanding of harmful acts as being overbroad and in need of revision. I, for one, have a problem with the idea that a hospital can be attacked simply because combatants are using it as “an arms or ammunition dump.” Given the importance IHL puts on protecting medical units, that doesn’t strike me as enough to justify a hospital forfeiting its protected status. I might even be convinced that the mere presence of unwounded combatants in a hospital shouldn’t justify a deliberate attack.

But the authors are not arguing for a tightening of the rules that govern when hospitals can be deliberately attacked. No: because they believe it is too easy for an attacker to claim that a hospital is shielding a military objective (permitting attack after a warning), they want a categorical rule that prohibits attacking hospitals no matter how they are being used:

The only way to overcome this travesty is if IHL clauses pertaining to the protection of hospitals are reformulated in a way that categorically prohibits the use of lethal force against them. Currently, IHL provides the necessary protections for hospitals, and all that is really needed is to erase the clauses stipulating exceptions since these in essence hand out militaries a license to bomb medical facilities.

In other words, the authors believe that a hospital should be immune from attack even when combatants are using it to attack the enemy. What the attacked forces are supposed to do in such a situation, the authors never explain. Apparently, they are simply supposed to either tolerate casualties or somehow avoid coming within the hospital’s field of fire. (Which may well be impossible, depending on the kinds of weapons the holed-up combatants possess.)

That will never happen, of course. Not even the most professional military will tolerate being fired upon from a civilian hospital — or at least it won’t tolerate it indefinitely, which is what the authors expect. IHL recognises this basic reality of combat, which is why it attempts to strike a balance between humanitarian concerns and military necessity by permitting a hospital that is being used as a shield to be deliberately attacked, but requiring a warning and a reasonable time to comply.

As with the definition of “acts harmful to the enemy,” it is possible to quibble with the procedural requirements for attacking a hospital that is being used as a shield. Perhaps IHL should avoid using a mushy “reasonableness” test for the length of the warning a military must give before attacking a hospital, imposing a minimum amount of time instead. I’d be open to that. But again: the authors are not trying to strike an appropriate balance between humanity and necessity. They simply want a categorical ban on attacking hospitals — even those that are genuinely being used to shield military objectives.

I understand (and am sympathetic to) the reasoning behind the authors’ position. They don’t want innocent civilians, especially medical personnel and the wounded, to pay the price for the actions of combatants who have no respect for IHL. Hospitals don’t choose to be misused by combatants, and there will almost certainly be situations where combatants simply refuse to leave a hospital that has been warned of an impending attack. So hospitals may well find themselves in an impossible situation: subject to attack because their premises are being misused, but unable to do anything about it.

The answer, however, is not to categorically prohibit attacking hospitals. As noted, militaries would never comply with such a prohibition. And, of course, such a prohibition would ensure that combatants who don’t respect IHL will use hospitals as a shield as often as possible. The authors begrudgingly acknowledge that possibility, writing that “[s]ome might argue that such norms will produce the perverse incentive among certain belligerents to use hospitals as shields.” But that is a serious understatement. Some might argue? What IHL scholar wouldn’t? Why would a military that doesn’t respect IHL not use a well-placed hospital as a shield if doing so renders its forces absolutely immune from attack?

The authors are correct that anything short of a categorical prohibition on attacking hospitals will leave open the possibility of militaries inventing facts to justify attacks. That is the nature of IHL rules that are not categorical — and a reflection of the fact that IHL is neither purely humanitarian nor purely war-enabling. The authors’ solution, however, is worse than the problem. A categorical prohibition will not prevent IHL from being misused; it will simply ensure that IHL is ignored — resulting in far more “incidental” deaths than under the current IHL rules. The better solution (absent a tightening of the rules as discussed above) is to searchingly examine the legitimacy of each and every attack on a hospital and hold militaries to account when they use the concept of the “hospital shield” to justify an unlawful attack.

And that, of course, is exactly what IHL requires.

Self-Aggrandizement Alert: Two New Publications

by Kevin Jon Heller

I’m delighted to announce the publication of two new essays. The first is “The Use and Abuse of Analogy in IHL,” which is a chapter in Jens’s edited book for CUP, “Theoretical Boundaries of Armed Conflict and Human Rights.”


I’m very proud of the essay — and all of the contributions to the book are excellent.

The second publication is my article “Radical Complementarity,” which has just appeared in the Journal of International Criminal Justice. Here is the abstract:

In March 2015, a domestic court in Côte d’Ivoire sentenced Simone Gbagbo to 20 years in prison for disturbing the peace, organizing armed gangs and undermining state security — a sentence considerably longer than any sentence imposed by the International Criminal Court (ICC) and twice as long as the Ivorian prosecutors requested. The Court has nevertheless held that Gbagbo’s case remains admissible, because her domestic prosecution was not based on the same conduct as the conduct underlying the crimes against humanity charges issued by the Office of the Prosecutor. This article argues that the Court’s decision in Simone Gbagbois inconsistent with the principle of complementarity. Section 1 criticizes the Court’s jurisprudence concerning Article 17’s ‘same person’ requirement, arguing that the test the judges use to determine whether a state is investigating a particular suspect is both inconsistent with the ICC Statute and far too restrictive in practice. Section 2 explains why the ‘same conduct’ requirement is antithetical to the goals underlying complementarity and should be rejected as a matter of law. The article thus defends what we might call ‘radical complementarity’: the idea that as long as a state is making a genuine effort to bring a suspect to justice, the ICC should find his or her case inadmissible regardless of the conduct the state investigates or the prosecutorial strategy the state pursues.

The published version differs substantially from the one I posted a while back on SSRN. You can find the article here.

Multi-Blog Series: First Thoughts from Academia on the Updated GCI Commentary

by Kevin Jon Heller

[This is the third episode in the Multi-blog series on the Updated Geneva Conventions Commentaries, jointly hosted by the Humanitarian Law & Policy Blog, Intercross and Opinio Juris. The first, by Jean-Marie Henckaerts, can be found here, and the second, by Sean Murphy, here.]

It is a great pleasure to contribute to this multi-blog series on the ICRC’s newly-released Commentary on the First Geneva Convention (GC I). Sean Murphy is right that GC I might seem “of lesser significance” than the Third and Fourth Geneva Conventions (GC III and GC IV) – and there is no question that IHL scholars everywhere will eagerly await the ICRC’s Commentaries on those Conventions. But that does not detract from the importance of this first Commentary, which represents a remarkable achievement in its own right. As the Introduction notes, the authors of this new Commentary had to analyze nearly seven decades of state practice, a massive and unenviable task. Moreover, they had to address some of the most contentious issues in IHL, such as the scope of application of Common Article 3 (CA 3). Indeed, I have little doubt that the Commentary’s overall Common Article 3 discussion – which runs to 907 paragraphs, approximately 800 more than its 1952 predecessor! – will attract considerable scholarly attention (and cause considerable academic controversy) in the coming years.


Flyer cover page - GC I launch

For my part, I generally agree with Murphy’s and Jean-Marie Henckaerts’ comments about the ICRC’s methodological approach in the Commentary. But I think Henckaerts actually underplays one of the most encouraging aspects of the ICRC’s methodology: its willingness to make liberal recourse to travaux preparatoires when interpreting provisions of GC I. Here is paragraph 49 in the Introduction:

Indeed, it seems logical for a thorough examination of all the issues to look at the preparatory work even if the general rule of interpretation yields a satisfactory result. It also helps the commentator to understand ‘the terms of the treaty in their context’ which is a requirement under the general rule (see Article 31(1) and (2) of the Vienna Convention on the Law of Treaties). Recourse to the preparatory work is particularly important when no recent practice on a topic can be found, such as for Articles 33 and 34 of the First Convention dealing with the fate of buildings and material of medical units of the armed forces and aid societies after they fall into enemy hands.

This is a refreshing deviation from VCLT orthodoxy about travaux preparatoires being unnecessary when the “ordinary meaning” of treaty terms is ostensibly clear. As Julian Mortenson has shown, that orthodox view of the VCLT is impossible to reconcile with the treaty’s own history, becausethe drafters repeatedly reiterated that any serious effort to understand a treaty should rely on a careful and textually grounded resort to travaux, without embarrassment or apology.” Indeed, scholars all too often use a treaty’s supposed “ordinary meanings” as a vehicle to substitute their own political preferences for the will of the states that drafted and concluded it.

I also agree with Henckaerts and Murphy concerning the central role that the ICRC plays in interpreting the Geneva Conventions – the “guardian and promoter of IHL,” in Henckaerts’ words. But that role poses a danger that needs to be openly acknowledged: namely, that those who use the Commentary – soldiers and scholars alike – will be tempted to uncritically accept the ICRC’s interpretation of GC I. There is no question that the authors of the Commentary are among the world’s most expert IHL practitioners and scholars, but they are neither infallible nor objective. On the contrary, both the experts and the ICRC as an institution have political and legal commitments that cannot help but influence how they interpret GC I. That does not mean that their interpretations should be discarded. It does not even mean their interpretations should always be viewed with a skeptical eye. But it does mean that IHL scholars should be willing to challenge the Commentary when they believe that the ICRC is wrong.

To be clear, I am in no way suggesting bias or bad faith on the part of the Commentary’s authors. I am simply pointing out that interpretation is an inherently indeterminate, subjective, and political activity, which means that it matters a great deal who is doing the interpreting. And there is no escaping the fact that the members of the Editorial Committee, the ICRC Project Team, and the Reading Committee come exclusively from states in the Global North – most from states in Western Europe. Again, that does not mean that the Commentary is wrong on any particular point. Moreover, to the ICRC’s credit, the Commentary’s peer-review group, who “reviewed the drafts and provided comments in their personal capacity,” included individuals from dozens of states in the Global South. But it is nevertheless regrettable that the primary authors and reviewers of the Commentary are so geographically homogenous – especially given that the states they represent rarely if ever experience the kind of conflict that is subject to Common Article 3.

Finally, I want to flag a very odd statement in the Commentary, paragraph 10 in the Introduction:

In addition, what sets the updated Commentaries mandated by the ICRC apart from other academic commentaries is that the contributors were able to draw on research in the ICRC archives, while respecting their confidential nature, to assess the application and interpretation of the Conventions and Protocols since their adoption.

I have no doubt this is true – but I find it somewhat troubling to know that the ICRC’s interpretation of GC I is based on evidence that cannot be subjected to scholarly criticism. I hope the ICRC will say more about its reliance on non-public information in future Commentaries, which will deal with even more controversial aspects of IHL.