Archive of posts for category
Law of War

Cyber Operations and GCII Article 18’s “End of Engagements” Clause

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.]

On 27 May 1941, the British battleships King George V and Rodney engaged the German battleship Bismarck, which had been previously disabled by a torpedo attack from aircraft belonging to the British carrier Ark Royal. After almost two hours of fighting, the Bismarck and her 2200 man crew were sunk. As the Bismarck’s escort ship, the Prinz Eugen, had previously detached, the shipwrecked crew was entirely dependent on the Royal Navy for rescue. The British ships Dorsetshire and Maori, acting in accordance with Article 16 of the Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, began rescue of the German crew. However, after 110 sailors were rescued a U-boat alarm was sounded, forcing the Royal Navy to break off the rescue. All but five of the remaining German crew were lost at sea.

The obligation under which the British acted to rescue the crew of the Bismarck was expanded in Article 18 the Second Geneva Convention (GCII). In an earlier post, Lt Cdr Peter Barker, RN, analyzed the extent of the obligation placed upon warship commanders to search for and collect the shipwrecked, sick, and wounded following a naval engagement. He correctly identified that the law, contained primarily in Article 18 of GCII, is ambiguous and in need of clarification. This post, the third in a series (see here and here) examining the impact of cyber on the law of naval warfare through the lens of the updated commentary to GCII, examines how the advent of cyber operations introduces an additional element of ambiguity.

Article 18 requires “[a]fter each engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the shipwrecked, wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.” Para 1617 of the updated commentary to GCII rightly recognizes that “Article 18(1) is among the most important provisions in the Second Convention,” and that it sets out the obligations flowing from the protections accorded in Article 12. Therefore, a detailed understanding of each element in this article is key to a proper understanding of the entire convention. Here, we look solely at the first element in the light of cyber operations.

The first element makes plain that, unlike land operations, the requirement to tend to the sick and wounded does not arise until following the engagement. This is understandable in the naval context given the increased risk of harm a commander would endure by breaking off an engagement to collect the shipwrecked, wounded and sick. Keep in mind this obligation applies “without discriminating between their own and enemy personnel.” (Para 1618) Furthermore, at the time of GCII’s drafting, naval engagements tended to be very violent, but short-lived affairs. In the case of the Bismarck, the engagement was clearly ended when the ship, her ensign never struck, went under the sea after two hours of fighting. However, for modern navies equipped with advanced long-range weapon systems, including cyber capabilities, the end of the engagement may be more difficult to discern.

In the updated commentary, para 1648 discusses the article’s post-engagement limitation, stating that “unlike in land warfare, there is no requirement to undertake search and rescue activities during an engagement.” The commentary then argues that whereas this element may limit the obligation temporally, it may expand the obligation’s material scope. It reasons that “since the particular engagement will have ceased, this may limit the extent to which a Party to the conflict may invoke security or military considerations as a justification for not undertaking search and rescue activities.” Thus, determining the exact scope of the temporal requirement is vital.

Fortunately, the updated commentary provides guidance on interpreting the temporal clause of Article 18. Para 1655 provides that “the term ‘engagement’ is ‘a battle between armed forces’, i.e. involving the use of methods and means of warfare between military units of the Parties to the conflict.” Pre-empting the question of whether the methods and means are limited to the naval forces, the commentary suggests it “covers any kind of engagement, including from the air or from land but inflicting casualties at sea.” Cyber operations are not explicitly mentioned here, so it is worth discussing whether the cessation of cyber operations, in addition to the conclusion of more traditional kinetic operations, is required to “end the engagement” and initiate potential Article 18 obligations.

First, the commentary’s suggestion that “inflicting casualties at sea” is required for an engagement is most likely poorly worded. It is easy to imagine that ships may be engaged prior to actually inflicting casualties. Prior to her own sinking, the Bismarck sunk the HMS Hood in large part by achieving the “weather gage,” gaining an advantageous position in relation to the enemy prior to opening fire. Therefore, simply because a cyber-operation does not inflict casualties, this should not signal that operations is not part of the overall engagement.

Although the commentary to Article 18 does not refer to cyber operations, they are discussed in relation to the scope of application provisions of Article 2. Specifically, the question asked is whether cyber operations alone can constitute “armed force,” making the Geneva Conventions applicable. Para 277 states that “[i]t is generally accepted that cyber operations having similar effects to classic kinetic operations” would suffice. However, para 278 recognizes the current reality that cyber operations falling beneath this threshold are legally unsettled. It is safe to say that cyber operations achieving a kinetic effect, therefore, would continue the engagement. But what of those cyber operations that effect network systems without achieving kinetic effects?

Until such time as the jus in bello develops more fully in this area, it may be necessary to leave the legal reasoning to a good faith assessment by the ship’s commander. Although this seems initially unsatisfying, it is consistent with the new commentary’s understanding of Article 18. Para 1655 states that “[w]hat constitutes an engagement in any given case will remain context-specific,” and that “those acting on behalf of the Party to the conflict, each at his or her own level of decision-making, will need to make a good-faith assessment as to the moment it becomes possible to take one or more of the measures referred to in Article 18.” Such “good faith assessments” are a common and necessary part of IHL, even if open to occasional abuse.

Given the potential for abuse, what are nations employing cyber operations as part of naval conflicts to do? Parties to a conflict still have a vested interest in ensuring that the shipwrecked, sick, and wounded are recovered and cared for as quickly as possible. The commentary once again provides a potential solution. Para 1651 suggests that opposing commanders reach a “special agreement” on the rescue of those shipwrecked in the sense of Article 6, allowing parties to fulfill Article 18 obligations without fear of attack, adding that “such an agreement may be concluded orally, between commanders on the spot.” Alert commanders will be sure to add prohibitions on cyber-attacks as part of any such agreement.

A Potentially Serious Problem with the Final Decision Concerning Comoros

by Kevin Jon Heller

A couple of days ago, the OTP finally announced what we all expected: that it would not reconsider its refusal to open a formal investigation into Israel’s attack on the MV Mavi Marmara. Dov Jacobs has already offered some thoughts on the lengthy document the OTP has filed with the Court explaining its reasoning — what the OTP nicely calls the Final Decision. I fully concur with Dov’s thoughts (except with his position on retroactive acceptance of jurisdiction), and I write here simply to add one of my own.

To begin with, I think this is the most impressive OTP brief I have ever read — especially given the complexity of the procedural issues that it addresses. It is exceptionally well written and argued. I don’t know who the author is, but she would have made an excellent analytic philosopher. Fatou Bensouda should promote her immediately.

That said, I strongly believe that the Final Decision’s understanding of when the OTP is required to investigate a situation is fundamentally flawed — and will almost certainly come back to haunt the OTP in future preliminary examinations. I have argued, as have most scholars, that situational gravity is a function of all the potential cases in a situation that would be admissible before the Court: the greater the number of prosecutable crimes and the greater their individual gravity, the more situationally grave the situation. To be sure, it is not an easy task to compare the situational gravity of different situations. But I don’t think there a practical alternative, given that the OTP can only investigate a very small percentage of the situations in which admissible crimes have been committed.

The Final Decision, however, appears to take a very different approach. Instead of deciding whether to open an investigation based on the gravity of all the potentially admissible cases in a situation, the OTP seems to believe that it is required to open an investigation as long as even one potential case within a situation would be sufficiently grave to prosecute. Consider the following paragraphs (emphasis mine):

11. Although the Prosecution maintains its view that no potential case arising from this situation would be admissible before this Court—which is the only issue in dispute with the Comoros—this does not excuse any crimes which may have been perpetrated.

332. Consistent with article 53(3)(a) of the Statute and rule 108(3), and based on the above reasoning and the information available on 6 November 2014, the Prosecution hereby decides to uphold the disposition of the Report. There remains no reasonable basis to proceed with an investigation, since there is no reasonable basis to conclude that any potential case arising from the situation would be of sufficient gravity to be admissible before the Court.

This approach, it is worth noting, appears to represent a retreat from the position the OTP took in its initial explanation of why it would not investigate the Comoros situation. Here is paragraph 24 of that document (emphasis mine):

Having carefully assessed the relevant considerations, the Office has concluded that the potential case(s) that would likely arise from an investigation of the flotilla incident would not be of sufficient gravity to justify further action by the Court, in light of the criteria for admissibility 8 provided in article 17(1)(d) and the guidance outlined in article 8(1) of the Statute.

It is possible, of course, that the Final Decision refers to the gravity of “any potential case” instead of “the potential case(s)” not because the OTP’s approach to situational gravity has changed, but because there is only one potential case in the Comoros situation: the attack on the MV Mavi Marmara. But the difference of language is striking — and given the legal and analytic precision of the Final Decision, I find it difficult to believe that its emphasis on whether any individual case would be admissible is simply a slip of the keyboard.

I assume, therefore, that the Final Decision means what it says: the OTP believes it has to investigate any situation in which there is at least one potential case that is grave enough to be admissible. But that is a very problematic position.

To begin with, it leads to precisely the kind of unhelpful dispute we have seen in Comoros situation, where the OTP believes a specific case is not sufficiently grave to be admissible and the Pre-Trial Chamber disagrees. Both the OTP and the PTC have spent a great deal of time during their “judicial dialogue” (Dov’s apt expression) comparing the Mavi Marmara case to the Abu Garda and Banda cases. Here, for example, is how the Final Decision critiques the PTC’s insistence that the Mavi Marmara case is sufficiently grave to be admissible:

77. However, the Request does not address the basis on which the Prosecution considered that “the total number of victims of the flotilla incident reached relatively limited proportions as compared, generally, to other cases investigated by the Office”—in particular, the circumstances of the Abu Garda and Banda cases (which are, in relevant part, identical). Although the majority likewise referred to these cases, it did not consider those particular characteristics.

78. As the Report expressly states, Abu Garda likewise concerned the allegation of “a single attack involving a relatively low number of victims”—but it was “distinguishable” because of “the nature and impact of the alleged crimes”, which were committed against international peacekeeping forces. Accordingly, the attack alleged in Abu Garda differed in nature from the identified crimes aboard the Mavi Marmara. Crimes against international peacekeepers strike at the heart of the international community’s mechanisms for collective security, and thus their direct and indirect victims include not only the peacekeepers and their families, but also the large number of civilians deprived of protection more widely because of the disruption to the peacekeepers’ operations. The Request does not address this distinction. [130]

n. 130 Likewise, the recent Al Mahdi case—solely concerning attacks on property protected under article 8(2)(e)(iv) of the Statute—was considered sufficiently grave to be admissible before the Court, resulting in a conviction. In the context of sentencing, the Trial Chamber stressed that the charged conduct was of “significant gravity”, among other reasons, because 1) the destroyed mausoleums were “among the most cherished buildings” in Timbuktu, an “emblematic city” which “played a crucial role in the expansion of Islam in the region” and which is “at the heart of Mali’s cultural heritage”; 2) the destroyed mausoleums were of proven significance to the inhabitants of Timbuktu not only as a matter of religious observance but also as a symbol and focus of community activity and unity; and 3) all the destroyed sites but one were designated UNESCO World Heritage sites, whose destruction also directly affects “people throughout Mali and the international community.” This same reasoning is applicable, mutatis mutandis, to the question of admissibility.

I don’t find the OTP’s efforts to distinguish the Mavi Marmara case from Abu Garda, Banda, and Al Mahdi particularly convincing. Its selection of factors to highlight strikes me as completely subjective and result-driven. Indeed, when faced with the PTC’s insistence that the message the Mavi Marmara attack sent to the international community — that Israel is willing to use force to maintain an illegal blockade that is causing a massive humanitarian crisis in Gaza — it simply retreats to “well, we disagree, and there is nothing you can do about it”:

80. Indeed, the majority appears simply to disagree with the Prosecution’s view of the weight to be given to… the significance of any ‘message’ sent by the interception of the flotilla itself. Given the Prosecution’s understanding of the proper standard of review under article 53(3)(a), and the absence of a reasoned conclusion that the Report was in these respects incorrect or unreasonable, the Prosecution does not consider it appropriate to depart from its original determination in the Report.

My point is not that the PTC’s gravity analysis is right and the OTP’s is wrong. (Though I do think the PTC has the stronger argument.) My problem is with the OTP’s position that it must investigate any situation in which at least one case is grave enough to be admissible. Debates over case gravity are inevitable when that is the standard for opening an investigation. But they are easily avoided if the OTP takes a more holistic approach to situational gravity, comparing the gravity of different situations by examining all of the potentially admissible cases within them. Even if we assume (as I do) that the attack on the Mavi Marmara is sufficiently grave to be admissible, the overall situational gravity of the Comoros situation (which involves only one case) still pales in comparison not only to numerous other situations under preliminary examination, but even — and more importantly — to the situational gravity of the Palestine situation as a whole. As I have argued previously, the last thing the OTP should do is investigate one very small part of the much larger conflict between Israel and Palestine. If it ever takes the Palestine situation on, it needs to look at crimes committed by both sides throughout Palestinian territory.

There is, however, an even more significant problem with the Final Decision’s standard for opening an investigation: if taken seriously, it will simply overwhelm the OTP’s resources. There may not be even one admissible case in the Comoros situation (because there is only one case), but how likely is it that larger situations, which are the norm, will not contain even one case sufficiently grave to prosecute? Just think about the situations currently at Phase 2 or Phase 3 of the preliminary-examination process: Burundi, Gabon, Iraq, Palestine, Ukraine, Colombia, Guinea, and Nigeria. There may well be complementarity issues in some of those situations that counsel not opening an investigation, but it seems exceptionally likely that each contains at least one admissible case. The Final Decision’s standard would thus seem — barring complementarity concerns — to require the OTP to open a formal investigation in all eight situations. Which is, of course, practically impossible.

Nor is that all. If the existence of even one admissible case is enough to require the OTP to investigate a situation, states will have little problem using referrals (self or other) to achieve nakedly partisan ends. Palestine, for example, could simply refer a single day during Operation Protective Edge in which Israel flattened an entire neighbourhood in Gaza or destroyed a UN school sheltering displaced civilians. It would be difficult, if not impossible, for the OTP to plausibly maintain that those acts are not grave enough to prosecute. So it would have to open an investigation. That makes little sense. Far better for the OTP to simply say that, however grave those specific attacks might be, the overall gravity of the gerrymandered “situation” is not sufficient to investigate in light of the gravity of other situations.

I hope I am wrong about when the OTP believes it is required to open an investigation into a situation. If so, the OTP needs to clarify its position immediately. Because the standard articulated in the Final Decision — the existence of even one case sufficiently grave to be admissible — is simply unworkable.

Cyber POWS and the Second Geneva Convention

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.]

Those familiar with Patrick O’Brian’s Aubry-Maturin series of novels (brought to film in Master and Commander starring Russel Crowe) will know that the boarding and seizure of ships was a common feature of naval warfare in the Age of Sail. However, modern naval conflicts rely more on the sinking of ships than their capture. Although the standoff range of most modern weapons weighs against an imminent change of this feature, there is one modern method of warfare that raises the question of capture once again: cyber warfare. This post is the second in a series examining the impact of cyber on the law of naval warfare through the lens of the updated commentary to the Second Geneva Convention (GCII). This first of this series examined the question of whether a crew can be “shipwrecked” within the meaning of GCII for purposes of Article 12 protections. This post takes that scenario one-step further and examines the status of a crew on a ship commandeered by cyber means.

Although indeed more difficult from a technical standpoint, it stands to reason that if a ship could be completely disabled through an offensive cyber operation, those same networked systems could also be controlled by an outside entity. With a high enough level of control, it would functionally turn the ship into a remotely operated vessel, similar to other drone-type vehicles. The first question to ask is whether the analysis differs from a ship disabled by cyber means. This could simply be a situation where the crew is “in peril” and, if they refrain from hostilities, must be afforded Article 12 protections. However, if someone is in control of the ship and could choose to pilot the crew to safety, is it really in peril?

Assuming the crew, for whatever reasons, chooses to stay onboard the ship and not disable it through mechanical means, it is fair to ask if they must be afforded Article 16 protections as prisoners of war (POW), which states that “…the wounded, sick and shipwrecked of a belligerent who fall into enemy hands shall be prisoners of war, and the provisions of international law concerning prisoners of war shall apply to them.” Breaking that article down into its parts, we first examine the phrase “wounded, sick and shipwrecked of a belligerent.” It may be tempting to suggest that, at this point, the crew is not wounded, sick or shipwrecked, so Article 16 would not apply. However, para 1575 of the updated commentary states that:

Although in setting down who is a prisoner of war Article 16 uses the looser formulation ‘the wounded, sick and shipwrecked of a belligerent’ rather than the more technical terms used in Article 13, the definition of prisoners of war in the Second Convention is not meant to diverge from that in the Third Convention.

The Third Geneva Convention (GCIII), Article 4, clearly states that “[p]risoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy,” and covers those “soldiers who became prisoners without fighting.” Essentially, this means that in whatever manner the sailor comes into the power of the enemy, regardless of being wounded, sick, or shipwrecked, they are now a POW.

The next element is the crux of the analysis, the phrase “who fall into enemy hands.” The obvious difficulty is deciding whether this is possible when the enemy is not physically present. The updated commentary, in para 1568, states that “the phrase ‘fall into enemy hands’ is sufficiently broad to cover capture or surrender.” Here, let us assume the crew has neither chosen to leave the ship nor made an affirmative action of surrender. Although para 1571 of the updated commentary suggests “[n]o active ‘capture’ is necessary,” the enemy certainly seems to have captured the ship, and if the crew is unwilling or unable to abandon the captured ship, are they also captured? The updated commentary makes no further definition, which is understandable. Capture without the physical presence of the enemy is a novel concept with few, if any, analogies.

One analogy is the case of unmanned combat systems, such as drones. If the operator of an attack drone witnesses a group of enemy combatants with weapons dropped and waving a white flag, should those soldiers be considered hors de combat and no longer subject to attack? The lack of ground forces to process as POWs those who surrender has made this question a matter of some debate due to the potential for misuse. The difference in the current situation is the greater potential degree of control exercised over those aboard a ship at sea as opposed to soldiers on the ground. The crew of a ship for which they no longer have effective control is subject to the whims of their controllers while they remain onboard the ship. The crew could potentially be driven into a perilous situation or perhaps even internally detonated if the weapon systems have been accessed.

Given the difficulty of defining what is required for capture without the presence of enemy soldiers, it may be instructive to turn a separate, but related, body of law: international human rights law (IHRL) for assistance. Although unlikely to apply in the current scenario, IHRL can offer a useful insight into what level of control is required for certain protective obligations to attach under international law. For example, the European Convention of Human Rights held in Al Skeini, paras 133 – 140, that the Convention applies extra-territorially either through the exercise of effective control over an area or through the exercise of control over a person by a State agent. In an earlier case, the Court had also held that human rights obligations attach to civilians on board a ship when military forces placed the crew under guard and gained control of the ship’s navigation, thereby exercising “full and effective” control. In Al-Skeini, the court ruled that the “exercise of physical power and control over the person in question” was critical in establishing jurisdiction.

Although “full and effective control” is a human rights concept, it illustrates that physical power and operational control of a ship’s navigational functions are potential factors in determining what level of power is required by enemy forces before obligations are placed upon them under that legal regime. It may be that this level of control can be obtained by the use of cyber means and if it is, then the crew should be considered as POWs with the attendant protections. This brings us to the third element of Article 16: “the provisions of international law concerning prisoners of war shall apply to them.”

What would be the obligations towards a crew on a warship over which they no longer have control? Although these requirements are primarily contained in GCIII, the updated commentary to GCII does spell out certain provisions. Of note, it states in para 1579 that “the time a person is held on board is limited to the absolutely necessary.”

If the potential for POWs to be taken under such circumstances exists, what must navies do to prepare? First, navies looking to employ cyber operations involving gaining control over ships should formulate a plan of what to do with the crew if they remain onboard. The Geneva Conventions place certain obligations on how they are to be treated and States must understand how they will transfer that crew to a more appropriate facility. Second, navies that employ networked systems would be wise to ensure there is a mechanism to revert to mechanical control or formulate clear plans as to their operating procedures in the event of a successful cyber-attack.

Call for Submissions / Nominations: The Francis Lieber Prize

by Chris Borgen

The American Society of International Law’s Lieber Society on the Law of Armed Conflict awards the Francis Lieber Prize to the authors of publications that the judges consider to be outstanding in the field of law and armed conflict.  Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.
 
Criteria:         Any work in the English language published during 2017 or whose publication is in final proof at the time of submission may be nominated for this prize.  Works that have already been considered for this prize may not be re-submitted.  Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.
 
Eligibility:       Anyone may apply for the article or book prize.  For those in academia or research institutions, the prize is open to those who are up to 8 years post-PhD or JD or those with up to 8 years in an academic teaching or research position. Membership in the American Society of International Law is not required.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Submissions from outside the United States are welcomed.
 
Submission:     Submissions, including a letter or message of nomination, must be received by 10 January 2018.  Three copies of books must be submitted.  Electronic submission of articles is encouraged. Authors may submit their own work.  All submissions must include contact information (e‑mail, fax, phone, address) and relevant information demonstrating compliance with eligibility criteria.  The Prize Committee will acknowledge receipt of the submission by e‑mail. 
 
Printed submissions must be sent to:
 
Professor Laurie Blank
Emory University School of Law
1301 Clifton Road
Atlanta, Georgia  30322
USA
 
Electronic submissions must be sent to:
 
 Lblank[at]emory.edu
 
Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.
 
Prize:   The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prize consists of a certificate of recognition and a year’s membership in the American Society of International Law.  The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2018. 
 
In 2017, the winners were:
 
Book prize:
— Kenneth Watkin, “Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict” (OUP 2016)


Article prize:

— Tom Dannenbaum, “Why Have We Criminalized Aggressive War?,” 126 Yale Law Journal (2017)
 

 

The Cyber “Shipwrecked” and the Second Geneva Convention

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.]

This May, the law of naval warfare took a significant step forward with the International Committee of the Red Cross (ICRC) release of an updated commentary on the Second Geneva Convention (GCII). The updated commentary is the first since the original commentary was released in 1960, and recognizes significant changes both in the conduct of naval conflicts and interpretations of the governing law. One such significant change is the advent of the cyber domain as a key component in naval operations. This post examines one potential impact of the cyber domain on naval operations – the protections afforded to shipwrecked crews under Article 12 of GCII.

Recent examples of potential cyber operations targeting maritime vessels include the infection of an 80,000-ton ship’s navigation system via a malware-infected USB stick and the possible GPS spoofing of at least twenty ships near the Russian port of Novorossiysk. Modern naval vessels utilize programmable logic controllers to interface hardware components with the physical systems onboard a ship. This creates potential vulnerabilities to power, hydraulic, steering, propulsion, and other critical systems. Should some or all of these systems be subject to a cyber-attack during an armed conflict, with the result that the ship becomes disabled, questions arise as to the status of that ship and whether the crew must be afforded certain protections under GCII.

Article 12 of GCII provides that “[m]embers of the armed forces . . . who are at sea and who are wounded, sick or shipwrecked, shall be respected and protected in all circumstances,” affording them protections against further attack once they qualify as “shipwrecked.” Traditional notions of shipwreck conjure up images of ships ablaze and beginning to sink as the result of cannon, torpedo, or aerial bombs. However, Article 12 states, “the term ‘shipwreck’ includes shipwreck from any cause.” Given the reliance of many modern warships on cyber controlled critical systems, it begs the question: can the crew of a warship be shipwrecked, within the meaning of GCII, by purely cyber means, thereby affording protections from further attack. Although no State has yet officially addressed this specific question, a review of the updated commentary’s Article 12 analysis suggests an answer in the affirmative.

The 2017 commentary states, “to qualify as shipwrecked the person must be in a situation of peril at sea” and “in all cases the person must refrain from any act of hostility.” (See Updated Commentary, para. 1379). Thus, we have two criteria that must be met and are difficult to determine in the cyber context: establishing whether the crew of a ship disabled by cyber means is in “peril at sea,” and, if so, how to determine if that crew has refrained from engaging in hostilities.

Peril at Sea

Framing the analysis of whether a ship’s crew disabled through cyber means can be considered in peril is the guidance to read the term shipwreck “as being broad.” (See Updated Commentary, para. 1383). The 2017 commentary reiterates the 1960 commentary exhortation for the term to be “taken in its broadest sense.” (Commentary to Geneva Convention II for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea 84–92 (Jean Pictet ed., 1960)). Despite a broad reading of the term shipwrecked, it can initially be difficult to accept that a ship with no outwardly apparent damage should be considered in peril. However, the loss of propulsion, steering, life-support, and other critical systems is enough to create a dangerous situation, even if it is not immediately life threatening. To this point, the 2017 commentary finds that “[p]ersons on a fully disabled ship . . . whose situation is dangerous but not necessarily imminently life-threatening, are also covered, as long as they refrain from any act of hostility . . . .” (See Updated Commentary, para. 1384). Furthermore, the commentary states “[s]ituations that are potentially life-threatening . . . also render persons on board ‘in peril’ at sea.” (See Updated Commentary, para. 1385).

Perhaps the primary difficulty in determining whether the crew of a ship disabled by cyber means is in peril is that the extent of that damage may be unknown, initially even to the crew itself. The damage to networked systems may require extensive repair necessitating new equipment or experts be brought on board before critical systems can be repaired. Conversely, the damage might quickly be repaired, with a ship’s weapon systems again posing a deadly threat to opposing warships.

Furthermore, the attribution of who or what is responsible for the disabling of the ship’s networks may be initially unclear. Indeed, it may be that the damage is entirely self-inflicted or unintentionally caused by malware previously and unknowingly introduced by a member of the ship’s crew. In these situations, the commentary’s inclusion of “shipwrecks caused by human error or a malfunction”(See Updated Commentary, para. 1386) in its definition of “any other cause,” makes clear that a ship’s crew could be rendered shipwrecked through cyber means even if the damage to the ship’s networks is self-inflicted or caused by means other than enemy action. Accordingly, a determination of attribution is legally unnecessary in evaluating whether protections should be afforded.

Refraining from Hostilities

In addition to being at peril, the commentary indicates that a crew does not receive the protections of Article 12 unless they also refrain from any further act of hostility. Determining whether a warship’s crew has complied with this requirement can be difficult even when the signs are visually observable, such as when members of the crew can be seen abandoning the ship. A ship’s weapon systems may remain functional even while other systems are severely damaged and there may be members of the crew operating those systems. Recall that the ship itself remains a military object subject to attack throughout; it is only the crew that receives protections in a shipwreck situation. This 2017 commentary recognizes this difficulty:

However, it will likely be very difficult or even impossible for an enemy to know whether the crew is working to repair weapons with the aim of continuing hostilities without an outward sign indicating otherwise. Furthermore, as the sailors are on board a military objective, it is likely that a disabled or damaged warship would need to surrender (e.g. by striking its colours) in order for protection to be secured. (See Updated Commentary, para. 1390).

A question specific to the cyber domain is what cyber defense measures a crew may take to prevent further cyber damage to the ship, while still refraining from hostilities. Here, the distinction between active cyber defenses, sometimes referred to as “hack-backs,” and passive defenses may hold the answer. Whereas active cyber defenses may pose a threat to opposing actors in the conflict, passive defenses pose no such threat and are akin to trying to save a damaged ship. Whereas refraining from further hostilities make no requirement that a crew stop trying to save a damaged ship, there is an obligation to refrain from acts that pose a threat to opposing forces.

Finally, determining whether a crew is refraining from hostilities in this context will likely required some communication to other forces taking part in the engagement. Unfortunately, the same cyber event that damaged other critical systems may also have damaged the disabled ship’s communications equipment. Although the commentary suggests “striking its colours” as a means of signaling the cessation of hostilities, most naval engagements of the future are likely to be fought at standoff range and visual signals may be useless.

Future Considerations

Whereas many practical difficulties inhibit the determination of whether the crew of a ship disabled by cyber means should be afforded Article 12 protections, the commentary suggests that it is clearly possible. GCII makes no requirement as to how a ship becomes disabled and the commentary stresses that the protections are quite broad. This difficulty does raise several interesting questions for naval forces who operate warships largely dependent on networked systems. These naval powers may need to retain non-digital methods of communication such as analog radios or high-range visual systems that can indicate a ship is in peril and is refraining from hostilities. Moreover, the question of whether states employing cyber methods and means in an attempt to disable enemy warships must notify their own warships operating in the area of such efforts is a valid question.

Unfortunately, the impact of cyber operations on the Geneva Conventions was limited to the discussion of the scope of applicability in the new commentary. This is understandable given the nascent stage of determining the applicability of international humanitarian law to cyber operations. However, the increased depth of analysis in the new commentary does aid in making the analysis clearer. Ensuring that GCII protections will be afforded to the crews of potential “cyber shipwrecks” is one such area that must be considered by naval powers going forward.

New Essay: Specially-Affected States and the Formation of Custom

by Kevin Jon Heller

I have just posted on SSRN a draft of a (very) long article entitled “Specially-Affected States and the Formation of Custom.” It represents my first real foray into both “classic” public international law and postcolonial critique. Here is the abstract:

Although the US has consistently relied on the ICJ’s doctrine of specially-affected states to claim that it and other powerful states in the Global North play a privileged role in the formation of customary international law, the doctrine itself has been almost completely ignored both by legal scholars and by the ICJ itself. This article attempts to fill that lacuna. In particular, by focusing on debates in a variety of areas of international law – with particular emphasis on the jus ad bellum and jus in bello – it addresses two questions: (1) what makes a state “specially affected”? and (2) what exactly is the importance of a state qualifying as “specially affected” for custom formation? The article concludes not only that the US approach to the doctrine of specially-affected states is fatally flawed, but also that a more theoretically coherent understanding of the doctrine would give states in the Global South power over the development of custom that the US and other Global North states would never find acceptable.

You can download the article here. As always, comments most welcome!

Apparently Perfidy Is Not Prohibited in 2256

by Kevin Jon Heller

I have just started watching Star Trek: Discovery, the first new Star Trek series in a decade. It’s excellent — dark, well-acted, with beautiful special affects. But I have to say that it was shocking to see the Captain of a Federation starship engage in a blatantly perfidious act in the second episode. The Federation has just come out on the losing end of a major battle with the Klingons. Captain Georgiou transports a photon torpedo into the torso of a dead Klingon, the lead Klingon ship retrieves the dead Klingon for burial, and… boom, the Klingon ship is disabled, with hundreds if not thousands dead.

As I have explained in a scholarly article, it is perfidious to use a booby-trap in a manner that violates the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices. Art. 2(4) of the Protocol defines a booby-trap as “any device or material which is designed, constructed or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act.” And Art. 7(1)(b) specifically provides that “it is prohibited in all circumstances to use booby-traps and other devices which are in any way attached to or associated with… sick, wounded or dead persons.” Captain Georgiou’s use of a booby-trapped dead Klingon to disable the Klingon ship was thus unequivocally perfidious.

The Star Trek universe always presents the Federation as the height of legal and moral rectitude. At least for one episode of Star Trek: Discovery, that was not the case.

The Law Applied by the UN Syria Commission to the Al-Jinah Strike is Correct – And Reflects US Doctrine: A Reply to LTC Reeves and Narramore

by Elvina Pothelet

[Elvina Pothelet is a Visiting Researcher at the Harvard Law School and a Ph.D. candidate at the University of Geneva.]

A few days ago, US Army Lieutenant Colonel Shane Reeves and Lieutenant Colonel Ward Narramore published a harsh criticism of the U.N. Commission of Inquiry (COI) on Syria for its “emphatic, and faulty, conclusion that the U.S. violated the Law of Armed Conflict (LOAC)” in an airstrike that hit a religious complex in the village of Al-Jinah. The two authors challenge both the factual and the legal findings of the Commission. In this post, I do not engage in the factual controversy – as long as the facts underlying the legal analysis are withheld from public or judicial scrutiny, everyone will inevitably retain room to influence the narrative. However, I challenge the surprising legal claim made by the authors that there is no duty to take all feasible precautions to minimize incidental civilian harm. This reading of the law contradicts a host of sources, including US military doctrine (for a strong critic of other arguments they raised see this on point reply by Adil Haque).

LTC Reeves and LTC Narramore argue that the COI applied a “non-existent legal standard” when it found that “United States forces failed to take all feasible precautions to avoid or minimize incidental loss of civilian life, injury to civilians and damage to civilian objects, in violation of international humanitarian law”. Let us first note that the COI did not, as the authors argue, “impose an absolute requirement on commanders to avoid or minimize incidental loss of civilian life”, but only a duty to take all feasible precautions to achieve this aim–an obligation of means rather than of results.

According to the authors, the COI mistakenly interpreted an obligation to refrain from causing excessive civilian harm as a more demanding duty to take all feasible precautions to minimize incidental civilian harm. It supposedly did so by borrowing the standard of Art. 57(2)(a)(ii) AP I to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding or minimizing incidental [civilian harm]” (emphasis added) and by unduly applying this standard to the proportionality rule (reflected in Art. 51(5)(b) and Art. 57(2)(a)(iii)).

I would respectfully suggest that their view conflates proportionality and precautions, and fails to recognize the full scope of the customary obligation to take precautions. It is clear that the Commission’s findings are not based on proportionality but on precaution rules. These rules include the duty to take all feasible steps to avoid or minimize incidental civilian losses. This obligation derives from Art. 57(1) – which the authors’ analysis omits. That paragraph provides that: “[i]n the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.” This general obligation is to be implemented by taking different precautions including those described in other parts of Article 57. The general aim of “sparing civilians” includes protecting civilians both from deliberate targeting and from incidental harm. In relation to the later aspect, not only is it prohibited to cause excessive collateral damages, there is also a positive obligation to take feasible measures to minimize even those collateral damages that might be deemed acceptable under the proportionality rule.

This duty is stated explicitly in Rule 15 of the ICRC Study on Customary IHL and confirmed by state practice and scholarship. The U.S., which is not a party to AP I, has unambiguously recognized that, as a matter of customary law, “[a]ll practicable precautions, taking into account military and humanitarian considerations, shall be taken in the conduct of military operations to minimize incidental death, injury, and damage to civilians and civilian objects” (see here p. 233). This obligation further appears in the U.S. Law of War Manual (see section 5.3.3 on “Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other Protected Persons and Objects” and section 5.11 on “Feasible Precautions In Conducting Attacks To Reduce The Risk Of Harm To Protected Persons And Objects”) as well as in the U.S. Operational Law Handbook (“If civilians are present, a duty also exists to take feasible… precautions to minimize civilian casualties”, p. 24). The Commission applies this exact rule. So LTC Reeves and LTC Narramore’s blunt statement that “this is simply not the legal standard” is more than a little surprising.

In their example of an enemy leader in a crowd of civilians, they claim that:

“[T]he law, as currently structured, allows a commander the discretion to drop a bomb on the hypothetical leader assuming the resultant civilian death and injury is not excessive in relation to the expected military advantage gained.”

I argue that the lawfulness of the strike depends on the rest of the story. The commander may well act in compliance with the principle of distinction and proportionality, but if she failed to take feasible precautions that could have brought the foreseeable civilian casualties down to, say, 30 instead of 50, then there is a LOAC violation (although no war crime would be committed).

As to the possible measures aiming at minimizing incidental losses, some are listed in Art. 57 (or in corresponding customary rules of the ICRC’s Study). But they are not limited to that list–and certainly not limited to the choice of means and methods of attack, as the authors seem (?) to suggest when they mention Art. 57(2)(a)(ii). The U.S. Law of War Manual Section 5.11 supports that finding:

“Feasible precautions in conducting attacks may include the following:…”

Feasible precautions could include for instance adjusting the timing or point of impact of the strike. Logically, collecting sufficient intelligence (on the nature of the target, possible collateral damages and how to minimize them) is the first component of the obligation to take precautions. This aspect is an important part of the COI’s findings.

Ultimately, whether the COI was correct when it concluded that the US airstrike on Al-Jinah violated the LOAC depends, as always, on the facts. The views of CENTCOM and the two authors on these facts are important. However, calling into question the law applied by the COI is not warranted here. There is a duty to take all feasible precautions to avoid or minimize incidental civilian casualties and damages–even below the threshold of proportionate collateral damages. Restating this is not an attempt “to usurp the LOAC by injecting some version of human rights laws” but a correct reading of the LOAC. It would be important for the authors to clarify their view, as this rule is too significant to leave the wrong impression that the US does not agree with it (anymore?). There is a number of complex legal questions implicated in this event (such as what precautions were “feasible” in this context, or what the commander could have “reasonably” known and how this relates to the COI’s findings on public knowledge about the religious nature of the building and the frequency of religious gatherings there) – but the existence of this specific rule is simply not one of them.

 

Symposium: Aeyal Gross’s “The Writing on the Wall”

by Kevin Jon Heller

Over the next three days we will be featuring an online discussion of my SOAS colleague and TAU law professor Aeyal Gross‘s new book for Cambridge University Press, The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017). The book develops ideas that Aeyal discussed on Opinio Juris — in a symposium on the functional approach to occupation — more than five years ago. So it’s fitting that we discuss his book on the blog now!

We are delighted to welcome a number of commenters, including Eliav Lieblich (TAU), Valentina Azarova (Koç) (who also contributed to the earlier symposium), Diana Buttu (IMEU), and Eugene Kontorovich (Northwestern). Aeyal will respond to the comments at the end of the symposium.

We look forward to the conversation!

Saudi Arabia Threatens to Shoot Down a Qatari Airways Plane

by Kevin Jon Heller

Saudi-owned TV news network Al Arabiya aired a video simulation yesterday that shows a Saudi Arabian fighter shooting an air-to-air missile at a Qatari Airways plane. Here is the video:

That’s bad enough — but what is truly horrifying is the accompany voiceover, which intones the following:

International law permits states to shoot down any aircraft that violates a state’s airspace, classing it as a legitimate target, especially if flying over a military area.

No, it doesn’t. This is wrong on so many levels. To begin with, shooting down a Qatari Airways plane would categorically violate the Chicago Convention on International Civil Aviation, which Saudi Arabia ratified more than 50 years ago. Art. 3bis, which has been in force since 1998, provides as follows:

a) The contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations.

The second sentence recognises that Saudi Arabia would have every right under the UN Charter to defend it against armed attack — if, for example, the Qatar military decided to use a Qatar Airways plane for offensive military purposes. But although a civilian Qatar Airways plane would no doubt violate the principle of non-intervention if it intentionally entered Saudi airspace, thus giving rise to Qatari state responsibility (because Qatar owns Qatar airways), the mere fact of intentional entry would not remotely qualify as an armed attack — much less one that would justify the use of lethal force in self-defense.

The conclusion is no different under the jus in bello. A Qatar Airways plane would not become a legitimate target by flying over a Saudi “military area” — much less simply by entering Saudi airspace. Indeed, neither act would even be a use of force sufficient to create an international armed conflict between Qatar and Saudi Arabia. So IHL would not even apply.

We need to be clear about what the video represents. Quite simply, Saudi Arabia is threatening to engage in state terrorism — the use of violence to spread panic among Qatari civilians in order to persuade the Qatari government to supposedly stop supporting terrorist groups. (Something the Saudis know more than a little about.)

Saudi Arabia is a fundamentally lawless state. I’d like to think this horrific video could prove to be its Charlottesville moment, finally convincing the US and the UK that the Saudi government has no intention of complying with international law. But I’m not going to hold my breath. If routinely massacring civilians in Yemen isn’t enough, what’s casually threatening to blow up a civilian Qatari plane?

MH17 Downing Suspects to be Prosecuted Before Dutch Domestic Courts – An Obstacle or an Advantage for International Justice?

by Aaron Matta

[Dr. Aaron Matta is an expert in international law with working experience at International Courts. He also recently co-founded The Hague Council on Advancing International Justice, a network for and with practitioners, academics, and policymakers in the area of international justice. I would like to thank Dr. Philip Ambach and Anda Scarlat for their feedback on earlier drafts of this commentary.The views expressed here are of the authors alone]

After nearly three years since the downing of the Malaysia Airlines MH17 flight, the countries comprising the Joint Investigation Team (JIT) – namely Australia, Belgium, Malaysia, the Netherlands and Ukraine – announced on 5 July their decision to initiate domestic investigations and prosecutions in the Netherlands in relation to the incident. To facilitate these procedures, a bilateral treaty on international legal cooperation between Ukraine and the Netherlands was signed on July 7. The treaty provides that those suspected of downing flight MH17 can be prosecuted in the Netherlands in respect of all 298 victims, which originate from 17 different countries. This means that all next of kin will have the same rights in the Dutch criminal proceedings regardless of their nationality.

These new developments are not surprising given that most of the victims were Dutch and the Netherlands has led the investigation and coordinated the international team of investigators thus far. This move also shows the determination of the JIT states to bring to justice those responsible, particularly after failed attempts to establish an ad hoc international MH17 Court had failed due to Russia’s veto in the United Nations Security Council. However, the recent decision to prosecute suspects in a Dutch domestic court raises challenges, particularly in view of the ongoing preliminary examination in Ukraine by the Prosecutor of the International Criminal Court (ICC). While international law provides several legal avenues for redress for this incident, in both criminal and civil proceedings, – which I extensively analyzed in an earlier blog post – the avenues analyzed here fall under the category of individual criminal responsibility.

So why can the Netherlands exercise its criminal jurisdiction in this case, if the incident occurred in Ukraine? In principle, Ukraine would retain the primary right to investigate and prosecute those responsible according to the legal principle of territorial jurisdiction – based on where the crime was committed. The Ukrainian leadership determined, however, that it would be very difficult to carry out the investigations and prosecutions due to the ongoing conflict in the Donbass region, where the MH17 incident took place. As a result, Ukraine triggered the ICC’s jurisdiction over crimes allegedly committed on its territory from 20 February 2014 onwards via two declarations under the ICC Statute, requesting the ICC Prosecutor to investigate the matter. Currently, following these requests, the ICC Prosecutor is undertaking a preliminary examination that could lead to the opening of a criminal investigation. Such investigation could potentially include the downing of the MH17 flight as an alleged war crime.

Nonetheless, the other JIT states, including the Netherlands, can also assert their domestic jurisdictions over this matter based on the legal principle of passive personality jurisdiction, due to the fact that their citizens were killed in this incident. In light of last week’s decision, the Dutch domestic criminal specialized courts will now be able to investigate and prosecute those responsible for the downing of MH17 on the basis of four main legal sources: first, as domestic crimes under the Dutch penal code, such as murder or manslaughter; second, as an international crime under the Dutch International Crimes Act of 2003; thirdly, as a crime on the basis of the 1971 Montreal Convention, which allows the domestic prosecution of any person committing unlawful acts against the safety of civil aviation; and finally, the bilateral judicial cooperation agreement recently signed with Ukraine.

However, the concurrent use of multiple criminal prosecution mechanisms, namely the Dutch domestic courts and the ICC, may cause difficulties. First, issues may arise under the basic principle of ‘ne bis in idem’, which states that no person can be tried twice for the same crime. Thus, if a Dutch court prosecutes an individual, this may prevent the ICC from prosecuting the same individual for the same crime. It is therefore essential for the JIT states to coordinate and cooperate with each other, and more importantly with the ICC, when it comes to gathering evidence, selection of suspects and conducting fair trials, to avoid duplication and wasting resources.

In addition, an investigation by the Dutch national authorities will most likely block any investigation by the ICC by virtue of the latter’s complementarity to national courts of its States Parties. According to this principle, states are primarily responsible for investigating and prosecuting international crimes. The ICC only intervenes if states parties to the Rome Statute of the ICC are unable or unwilling to prosecute individuals’ suspected/accused of the most serious crimes of concern to the international community. With this in mind, a division of labor between the different jurisdictions, and among the different actors involved, could be arranged. For example, the Netherlands could focus in prosecuting those most responsible for the MH17 incident, while the ICC concentrates its efforts and limited resources to investigating other crimes committed in the Ukrainian territory.

Other challenges that will be faced by all of the jurisdictions involved are, for example, meeting the high standards of proof required for establishing the suspects’ guilt beyond reasonable doubt. This includes notably the requirement to prove the alleged perpetrator’s ‘knowledge and intent’ to commit a war crime. Additionally, there will be several procedural obstacles when it comes to judicial cooperation and the sharing of crucial potential evidence. Clear examples of this are the thousands of intercepted telephone calls gathered by Ukrainian law enforcement and intelligence agencies. While some of this evidence can easily be shared with the JIT investigators, as well as with the Dutch and ICC prosecutors, in several instances much of this data cannot be shared due to some restrictions in the Ukrainian legal system. This is the case, for example, with evidence that may have been acquired or intercepted following special legal procedures into the downing of the MH17, such as investigations carried out in the interest of state security and the fight against terrorism.

The bilateral agreement between the Netherlands and Ukraine addresses some of these issues by reducing or simplifying some procedural hurdles. For example, the agreement tackles the issue of examination of Ukrainian defendants via video link or the transferring of enforcement of prison sentences that may be imposed, due to extradition restrictions in the Ukrainian legal system.

Finally, a major obstacle will prove to be obtaining custody of the potential suspects, particularly if they are Russian nationals and/or located on Russian territory. The Russian Federation will most likely not be willing to extradite potential Russian suspects, in spite of international pressure, in light of the current geopolitical tensions prevailing in the region. In this respect, trials in absentia (where the suspect is absent from the legal proceedings), which are provided for in the Dutch criminal code could prove to be a limited yet practical solution.

Regardless of these numerous challenges, the decision to initiate judicial proceedings in the Netherlands providing a solid avenue for legal redress for the incident should be welcomed. Such an initiative would further show that the JIT states are serious about seeking justice for the victims of this tragic incident and their relatives.

ICC Appeals Chamber Says A War Crime Does Not Have to Violate IHL

by Kevin Jon Heller

One of the most basic assumption of ICL is that an act cannot be a war crime unless it violates a rule of international humanitarian law (IHL). Article 6(b) of the London Charter criminalised “War Crimes: namely, violations of the laws or customs of war.” Article 3 of the ICTY Statute provides that “[t]he International Tribunal shall have the power to prosecute persons violating the laws or customs of war,” while Article 4 of the ICTR Statute provides that “[t]he International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977.” And Article 8 of the Rome Statute criminalises “[g]rave breaches of the Geneva Conventions of 12 August 1949”; “[o]ther serious violations of the laws and customs applicable in international armed conflict”; [i]n the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949″; and “[o]ther serious violations of the laws and customs applicable in armed conflicts not of an international character.” In each and every case, war crimes are limited to violations of IHL.

No more. The Appeals Chamber (AC) at the ICC has just unanimously held in Ntaganda that a perpetrator can be convicted of a war crime even if his act does not violate IHL. That decision is not simply “unprecedented,” as the AC openly acknowledges. It is simply incorrect — as this post will demonstrate.

The judgement itself addresses allegations that Ntaganda is criminally responsible for two war crimes — rape and sexual slavery — involving children forcibly recruited into his organised armed group, the UPC/FPLC. Ntaganda challenged that allegation, arguing that “crimes committed by members of armed forces on members of the same armed force do not come within the jurisdiction of international humanitarian law nor within international criminal law.” The Trial Chamber (TC) disagreed, in a judgment ably discussed and critiqued by Yvonne McDermott. Ntaganda appealed, giving rise to this judgment. Here is the AC’s “key finding”:

2. Having regard to the established framework of international law, members of an armed force or group are not categorically excluded from protection against the war crimes of rape and sexual slavery under article 8 (2) (b) (xxii) and (2) (e) (vi) of the Statute when committed by members of the same armed force or group.

Before turning to the logic of the judgment, it is important to be very precise about the terms of my quarrel with the AC. I completely agree with the AC that there are situations in which a member of an armed force can, in fact, commit the war crime of rape or the war crime of sexual slavery against a member of the same armed force. As the AC rightly notes, although the Third and Fourth Geneva Conventions do not apply to acts committed by a combatant against someone from the same side of the conflict — whether by virtue of membership in that same armed force (GC III) or by nationality (GC IV) — the First and Second Geneva Conventions contain no such limitation:

59. In contrast, Geneva Conventions I and II, which protect the wounded and sick on land and the wounded, sick and shipwrecked at sea respectively, provide protection “in all circumstances […] without any adverse distinction founded on sex, race, nationality” and prohibit violence against them. Importantly, such protected status is not limited to persons belonging to enemy armed forces, but includes wounded, sick or shipwrecked members of a party’s own armed forces, a rule that corresponds to the understanding of the scope of protection since the first Geneva Convention was adopted in 1864. It follows from the above that the notion of grave breaches under Geneva Conventions I and II includes violations committed against the wounded, sick or shipwrecked committed by members of their own armed force.

Nothing in GC I or GC II suggests, however, that IHL protects all members of the armed forces against member-on-member violence. On the contrary, let’s take a look at the AC’s statement again, with the critical language in bold:

59. In contrast, Geneva Conventions I and II, which protect the wounded and sick on land and the wounded, sick and shipwrecked at sea respectively, provide protection “in all circumstances […] without any adverse distinction founded on sex, race, nationality” and prohibit violence against them. Importantly, such protected status is not limited to persons belonging to enemy armed forces, but includes wounded, sick or shipwrecked members of a party’s own armed forces, a rule that corresponds to the understanding of the scope of protection since the first Geneva Convention was adopted in 1864. It follows from the above that the notion of grave breaches under Geneva Conventions I and II includes violations committed against the wounded, sick or shipwrecked committed by members of their own armed force.

Under GC I and GC II, in other words, member-against-member violence violates IHL only if the victim is wounded, sick, or shipwrecked. If the victim is none of those things — if he or she is not hors de combat — that violence may well violate a state’s domestic criminal law, but it does not violate IHL.

If the AC had limited the scope of its judgment to rape and sexual slavery committed against child soldiers who were hors de combatdefined by the ICRC, in relevant part, as “anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness” — it would have been on firm ground. But that is not what it has done. On the contrary, the AC goes to great lengths to make clear that member-against-member rape and sexual slavery are war crimes even if the victim is an active combatant –– ie, one who is not hors de combat. Here is the relevant paragraph (emphasis mine):

64. With regard to the second issue – namely whether Status Requirements exist in international humanitarian law specifically for the war crimes of rape and sexual slavery – the Appeals Chamber observes that the prohibitions of rape and sexual slavery in armed conflict are without a doubt well established under international humanitarian law. As noted by the Trial Chamber, protection under international humanitarian law against such conduct generally “appear[s] in contexts protecting civilians and persons hors de combat in the power of a party to the conflict”. In this regard, the question arising before the Appeals Chamber is whether such explicit protection under international humanitarian law suggests any limits on who may be victims of such conduct. In the view of the Appeals Chamber, there is no conceivable reason for reaching such a conclusion.

Notice the bold language, because it’s critical — and wrong. IHL protection does not “generally” apply only to civilians and combatants hors de combat. On the contrary, each and every IHL convention applies only to those two categories of individuals. As we have seen, the AC itself acknowledges that limitation with regard to all four of the Geneva Conventions. It cites no other source of IHL, instead simply noting that the ICRC states in its new commentary to GC I “that Common Article 3 protects members of armed forces against violations committed by the armed force to which they belong.” But that statement is incomplete and misleading, because the ICRC makes unequivocally clear that CA3’s prohibitions apply only to individuals who are hors de combat:

518  Subparagraph (1) covers all ‘[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause’. The article does not expand on these notions and this part of the article did not give rise to much discussion at the 1949 Diplomatic Conference. The protection afforded under this subparagraph requires that the person be in the power of a Party to the conflict (see section E.4).
519  The protection of persons not or no longer participating in hostilities is at the heart of humanitarian law. The persons protected by common Article 3 are accordingly described by way of explicit delimitations: ‘persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause’ (emphasis added). Parties to a non-international armed conflict are under the categorical obligation to treat these persons humanely, in all circumstances and without any adverse distinction.

The Trial Chamber’s judgment is no better. The TC rests its conclusion that member-against-member rape is a war crime even when the victim is an active combatant solely on two things: the Martens Clause and Art. 75 of the First Additional Protocol (AP I). Here is paragraph 47:

While most of the express prohibitions of rape and sexual slavery under international humanitarian law appear in contexts protecting civilians and persons hors de combat in the power of a party to the conflict, the Chamber does not consider those explicit protections to exhaustively define, or indeed limit, the scope of the protection against such conduct. In this regard, the Chamber recalls the Martens clause, which mandates that in situations not covered by specific agreements, ‘civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience’. The Chamber additionally notes that the fundamental guarantees provisions [in Art. 75] refer to acts that ‘are and shall remain prohibited at any time and in any place whatsoever’ and as such apply to, and protect, all persons in the power of a Party to the conflict.

I don’t have time to get into a detailed discussion of the Martens Clause. Suffice it say here that it is very unlikely that the Clause can ever be relied upon to expand IHL not only beyond conventional law, but even beyond customary IHL — and as the AC itself acknowledges (para. 60), there is literally zero state practice indicating that member-against-member mistreatment is a war crime even when the victim is an active combatant. Even Antonio Cassese, no stranger to judicial activism, dismisses this “norm-creating” reading of the Martens Clause as “radical.” As he says, “[s]urely the Clause does not envisage — nor has it brought about the birth of — two autonomous sources of international law, distinct from the customary process.”

As for Art. 75 of AP I, the Protocol’s “fundamental guarantees” provision, the TC’s position is deeply problematic. Here is n. 111:

Article 75 of Additional Protocol I refers to ‘a Party to the conflict’ (emphasis added) and therefore does not limit the fundamental guarantees to persons in the power of the opposing party.

The TC conveniently fails to note that Art. 75 applies only to international armed conflict — and that Art. 4 of AP II, the “fundamental guarantees” provision in the NIAC Protocol, is specifically limited to “persons who do not take a direct part or who have ceased to take part in hostilities” (ie, civilians and combatants hors de combat).

Given that conventional IHL uniformly requires the victim of member-against-member mistreatment to be hors de combat, on what basis does the AC hold that the status of the victim is irrelevant? The answer comes from this paragraph (emphasis mine):

65. The Appeals Chamber agrees with the Trial Chamber’s finding that “there is never a justification to engage in sexual violence against any person; irrespective of whether or not this person may be liable to be targeted and killed under international humanitarian law”. Accordingly, in the absence of any general rule excluding members of armed forces from protection against violations by members of the same armed force, there is no ground for assuming the existence of such a rule specifically for the crimes of rape or sexual slavery.

This is simply incorrect. To begin with, there is a specific rule excluding active combatants from the war crimes of rape and sexual slavery in member-against-member situations: namely, the rule that says violence in member-against-member situations violates IHL only when the victim is hors de combat. The AC’s judgment suggests that states not only had to specify that rule in the various IHL conventions, they also had to add: “oh, and by the way, this limit means that mistreating active combatants doesn’t violate IHL.” But that’s silly: the former implies the latter. After all, expressio unius est exclusio alterius is a basic rule of treaty interpretation.

But even if that was not the case, there would still be a general rule excluding active combatants from the war crimes of rape and sexual slavery in member-against-member situations: the rule that says a war crime must involve a violation of IHL. As noted at the beginning of this post, that is one of the most basic assumptions of IHL. Not all violations of IHL are war crimes, but all war crimes are violations of IHL. So the burden of proof was not on Ntaganda to show that rape and sexual slavery cannot be war crimes in member-against-member situations if the victim is an active combatant. The burden was on the prosecution to prove that such acts actually violate IHL. Because if they don’t — and they don’t, as we have seen — the Court has no jurisdiction whatsoever over Ntaganda’s acts, at least insofar as they are legally characterised as war crimes.

In the end, the AC’s decision in Ntaganda is little more than the latest iteration of the Court’s willingness to rely on teleological reasoning when the Rome Statute does not protect victims as much as the judges think it should. No one is in favour of raping and sexually enslaving child soldiers. But the solution isn’t to detach the law of war crimes from its moorings in IHL by holding — if only implicitly — that an act can be a war crime even if it does not violate IHL. To do so is not only legally indefensible, it risks delegitimising both the Court and the law of war crimes itself.