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Law of War

Guest Post: Self-Defence – Weapons, Lawful Commands, Duty to Retreat and Summary

by Ian Henderson and Bryan Cavanagh

[Ian Henderson is a group captain in the Royal Australian Air Force and is currently posted as the Director Military Law Centre and Deputy-Director Asia-Pacific Centre for Military Law. Bryan Cavanagh is a squadron leader in the Royal Australian Air Force and is currently posted as a legal training officer at the Military Law Centre and Asia-Pacific Centre for Military Law. This note was written in their personal capacities and does not necessarily represent the views of the Australian Government or the Australian Department of Defence. This is the third in a four-part series. The first post can be found here (along with a response here) and the second post here.]

This is the third in a series of four posts that address the relationship between self-defence and LOAC.  In this post we compare how LOAC and the law of self-defence deal with a number of discrete issues like use of prohibited weapons, obedience to lawful commands, and a ‘duty’ to retreat. It also provides a table which summarises the main points in the first three posts.

Can you use a poisoned bullet to protect yourself in self-defence?

The Law of Armed Conflict (LOAC) prohibits the use of certain weapons. Under the Rome Statute and the Australian Commonwealth Criminal Code, it is a war crime to employ poison or poisoned weapons, prohibited gases, or prohibited bullets.In contrast, the law of self-defence does not specifically address the means of response to a threat, but rather merely requires the response to be necessary, reasonable and proportional.

Under the Australian Criminal Code and the Rome Statute, there is no limitation on pleading self-defence only to crimes relating to the use of force. Therefore, the use of a prohibited weapon would be consistent with self-defence analysed under the Australian Criminal Code and the Rome Statute provided that a person’s actions were a necessary, reasonable and proportionate response to the threat.

In some jurisdictions, for example New Zealand, self-defence operates to exclude criminal responsibility for use of force. It is possible in these jurisdictions a combatant could not successfully plead self-defence in relation to weapons offences which are separate and distinct to offences relating to the actual use of force. We did not come to any conclusion on this issue.

Nowhere to run

Under LOAC, not unsurprisingly there is no requirement to retreat from an attack. The position under self-defence varies from jurisdiction to jurisdiction. We found Leverick’s categorisation of the different approaches useful:

a) An absolute retreat rule. The accused must make an attempt to retreat before using force in self-defence regardless of the circumstances.

b) A strong retreat rule. The accused must make an attempt to retreat before using force in self-defence only if an opportunity to do so actually exists.

c) A weak retreat rule. Retreat is not treated as an independent variable, but rather as one factor that is taken into account in deciding whether the accused’s actions were necessary or reasonable.

d) No retreat rule. There is no duty on the accused to take an opportunity to retreat. The victim of an attack has the right to stand their ground and meet force with force.

(more…)

Meanwhile, over at ABC News…

by Kevin Jon Heller

BsJXdWkCYAEhdi_Diane Sawyer had a hard-hitting report tonight at ABC News on the recent hostilities between Israel and Palestine. The segment opens with her saying, “We take you overseas now to the rockets raining down on Israel today as Israel tried to shoot them out of the sky.” As she speaks, a video box next to her shows explosions on an urban landscape. Sawyer then shows a still photo of two haggard men carrying clothes in front of a destroyed building and says, “here is an Israeli family trying to salvage what they can.”

There’s only one problem with Sawyer’s report: the explosions are in Gaza, the result of IDF airstrikes, and the men are Palestinian, not Israeli.

Welcome to the mainstream media’s even-handed coverage of the Israeli/Palestinian conflict.

Name That Pinko!

by Kevin Jon Heller

What Israel-hating, Hamas-loving lefty said the following on Facebook?

Dear friends: Take a few moments to read the following words and share them with others. I see the severe and rapid deterioration of the security situation in the territories, Jerusalem and the Triangle and I’m not surprised. Don’t be confused for a moment. This is the result of the policy conducted by the current government, whose essence is: Let’s frighten the public over everything that’s happening around us in the Middle East, let’s prove that there’s no Palestinian partner, let’s build more and more settlements and create a reality that can’t be changed, let’s continue not dealing with the severe problems of the Arab sector in Israel, let’s continue not solving the severe social gaps in Israeli society. This illusion worked wonderfully as long as the security establishment was able to provide impressive calm on the security front over the last few years as a result of the high-quality, dedicated work of the people of the Shin Bet, the IDF and the Israel Police as well as the Palestinians whose significant contribution to the relative calm in the West Bank should not be taken lightly.

However, the rapid deterioration we’re experiencing in the security situation did not come because of the vile murder of Naftali, Eyal and Gil-Ad, may their memories be blessed. The deterioration is first and foremost a result of the illusion that the government’s inaction on every front can actually freeze the situation in place, the illusion that “price tag” is simply a few slogans on the wall and not pure racism, the illusion that everything can be solved with a little more force, the illusion that the Palestinians will accept everything that’s done in the West Bank and won’t respond despite the rage and frustration and the worsening economic situation, the illusion that the international community won’t impose sanctions on us, that the Arab citizens of Israel won’t take to the streets at the end of the day because of the lack of care for their problems, and that the Israeli public will continue submissively to accept the government’s helplessness in dealing with the social gaps that its policies have created and are worsening, while corruption continues to poison everything good, and so on and so on.

But anyone who thinks the situation can tread water over the long run is making a mistake, and a big one. What’s been happening in the last few days can get much worse — even if things calm down momentarily. Don’t be fooled for a moment, because the enormous internal pressure will still be there, the combustible fumes in the air won’t diminish and if we don’t learn to lessen them the situation will get much worse.

The pinko in question would be Yuval Diskin, the director of Israel’s Shin Bet from 2005 to 2011. Further proof that being outside of government is conducive to honesty — especially when the government in question is overseen by someone like Netanyahu.

Guest Post: Self-Defence, Collateral Damage and Precautions in Attack

by Ian Henderson and Bryan Cavanagh

[Ian Henderson is a group captain in the Royal Australian Air Force and is currently posted as the Director Military Law Centre and Deputy-Director Asia-Pacific Centre for Military Law. Bryan Cavanagh is a squadron leader in the Royal Australian Air Force and is currently posted as a legal training officer at the Military Law Centre and Asia-Pacific Centre for Military Law. This note was written in their personal capacities and does not necessarily represent the views of the Australian Government or the Australian Department of Defence. This is the second in a four-part series and the first post can be found here along with a response here.]

This is the second in a series of four posts that address the relationship between self-defence and LOAC. Yesterday we looked at when self-defence does and does not apply during a period of armed conflict. Today we discuss whether it is lawful under the criminal law concept of self-defence to cause incidental injury (aka, collateral damage) and whether self-defence imposes requirements similar to the ‘precautions in attack’ under article 57of Additional Protocol I (API).

Killing and injuring people that are not the object of the attack

Under the Law of Armed Conflict (LOAC), the rules relating to collateral damage are fairly easy to state – but difficult to apply. LOAC permits expected incidental loss of civilian life and injury to civilians (collateral damage), provided that the collateral damage is not excessive in relation to the military advantage anticipated to be gained from the attack. What then is the law relating to causing collateral damage when acting in self-defence?

A response in self-defence must be reasonable – so the question becomes – when (if ever) is it reasonable to kill or injure people who are not attacking you when responding to those who are? We had some difficulty in tracking down authority on point — in fact we could not find any reported Australian case law that addressed the issue — but domestic law of the US does. Case law in the US has held that while acting in self-defence can excuse injury or even death to a bystander in certain circumstances (eg, when not acting carelessly), self-defence does not excuse knowingly or recklessly injuring or killing a bystander (see Henwood v People, 54 Colo 188 (1913) [8]). Our conclusion is that it is highly likely that reasonableness under the law of self-defence imposes a higher standard of care on a military member than LOAC to avoid causing any injury or death to civilians. In other words, where a person acts ‘lawfully’ in self-defence, self-defence would operate as a successful defence to a charge relating to injuring or killing the attacker but not to a charge relating to injuring or killing a bystander.

To remove some confusion around this topic, we spelt out what ‘proportionality’ means under LOAC and self-defence. Proportionality under LOAC is used as a reference to the collateral damage equation mentioned above. Proportionality under self-defence is about the degree of force used in response to a threat. Proportionality under self-defence does not directly address the issue of collateral damage.

Precautions in attack

Article 57 of API sets out a number of precautions applicable to those who plan, decide and execute attacks. For example, they must do everything feasible to verify that the objectives to be attacked are military objectives; take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing collateral damage, and to cancel or suspend an attack if it becomes apparent that the objective is not a military one or that the attack may be expected to cause excessive collateral damage.

We concluded that it is unclear whether the requirement of reasonableness under the law of self-defence would extend to requiring a military member to take all of the precautions set out in article 57. Even if it could be said that these requirements are relevant to the reasonableness assessment, they are unlikely to be as effective as protecting the civilian population as the explicit requirements set out in the article. We view this as unsurprising, as the law of self-defence was not developed to specifically address these types of issues that are unique to military operations.

In tomorrow’s post, we will compare how LOAC and the law of self-defence deal with a number of discrete issues like use of prohibited weapons, obedience to lawful commands, and a ‘duty’ to retreat.

Guest Post: Henderson & Cavanagh on Self-Defense & The Privilege of Combatancy

by Jens David Ohlin

[Jens David Ohlin is Professor of Law at Cornell Law School.]

Ian Henderson and Bryan Cavanagh have hit the nail on the head in identifying a crucial and under-theorized question that goes right to the basic structure of the laws of war. I am in complete agreement that invocations of self-defense during armed conflict are both confused and confusing.

There is already the frequent problem of conflating individual self-defense (in the criminal law sense) with collective self-defense (jus ad bellum and article 51 of the UN Charter).  In addition, one often hears talk of a soldier’s right of self-defense – a claim that is mostly redundant since soldiers hold the privilege of combatancy and have no need to invoke a separate justification for their behavior. A justification like self-defense serves to negate the wrongdoing of the act, but a privileged soldier who kills a legitimate target has committed no wrongful act that requires negating.  Consequently, the justification of self-defense is only relevant during armed conflict when the defender is unprivileged, such as a civilian who has no right to participate in armed conflict.  If the civilian is challenged by an enemy combatant who refuses to obey the principle of distinction, then the civilian is entitled to kill the soldier in self-defense. If a soldier is attacked by a civilian, the soldier can legitimately kill the civilian because he is directly participating in hostilities; no claim of self-defense is required because the privilege applies.

Understanding self-defense from a civilian’s perspective is more difficult.  Consider the complicated problem of a civilian who kills an enemy soldier who is in the process of killing the civilian as collateral damage during a lawful attack against a military objective. In that scenario, does the civilian have the right of self-defense? In the criminal law we usually view the right of self-defense as only applicable against unlawful attacks, but in this case the attacking soldier’s original assault is lawful under LOAC as long as the anticipated collateral damage is not disproportionate to the value of the military objective. If the envisioned collateral damage is disproportionate, then the attack is unlawful.  So, in that case, the right of the civilian to exercise self-defense would depend entirely on the civilian making the correct assessment of not only the collateral damage, but also the anticipated collateral damage viewed — not from his perspective – but rather from the perspective of the person attacking him!  A greater conceptual riddle I cannot fathom.  This would be a nightmare for a criminal court, international or domestic, to adjudicate.

The deeper issue imbedded in Henderson and Cavanaugh’s research is the application of the privilege of combatancy to non-international armed conflicts.  The standard textbook answer is that the privilege is inapplicable to NIAC because the very concept of “combatant” is part of the legal architecture of IAC.  Under this view, a NIAC can only have government forces and rebels – never combatants per se.

To my mind, this statement is often reflexively repeated in the literature without due consideration for whether it is always and universally true.  Few individuals have challenged it, though Henderson himself is one of the few to have seriously studied the issue, writing articles suggesting that government forces in NIACs are privileged belligerents and that prosecuting them domestically would violate the laws of war.  Henderson is to be commended for tackling an understudied but vital topic.

(more…)

Guest Post: Military Members Claiming Self-Defence During Armed Conflict–Often Misguided and Unhelpful

by Ian Henderson and Bryan Cavanagh

[Ian Henderson is a group captain in the Royal Australian Air Force and is currently posted as the Director Military Law Centre and Deputy-Director Asia-Pacific Centre for Military Law. Bryan Cavanagh is a squadron leader in the Royal Australian Air Force and is currently posted as a legal training officer at the Military Law Centre and Asia-Pacific Centre for Military Law. This note was written in their personal capacities and does not necessarily represent the views of the Australian Government or the Australian Department of Defence.]

We would like to thank the editors of Opinio Juris for allowing us this opportunity to discuss our draft book chapter on the how the concept of self-defence under criminal law operates in relation to military members during an armed conflict. We would also like to thank the ASIL Lieber Society and the judges who kindly awarded our paper a Certificate of Merit (second prize) in the 2014 Richard R. Baxter Military Prize for ‘a paper that significantly enhances the understanding and implementation of the law of war’.

The Law of Armed Conflict (LOAC) reflects a balance between military necessity and humanity. Potentially upsetting this balance is an apparent trend towards relying on self-defence under criminal law as a justification for the use of force by military members during armed conflicts. We argue that this trend is based on a misunderstanding of the scope self-defence when applied in light of the combatant’s privilege.

As the relevant law that would apply to a claim of self-defence depends upon the jurisdiction, we limited our analysis to the Australian Commonwealth Criminal Code and the Rome Statute. We would be very interested to hear about how our analysis might apply in other jurisdictions.

We have split the issues up into four discrete posts. In this post, we discuss the circumstances where self-defence does and does not apply during an armed conflict. This also entails discussing the combatant’s privilege.

In our next post, we will deal with whether it is lawful under the criminal law concept of self-defence to cause incidental injury (aka, collateral damage) and whether the law relating to self-defence imposes requirements similar to the ‘precautions in attack’ under article 57 Additional Protocol I.

The third post will be a comparison of how LOAC and the law of self-defence deal with a number of discrete issues like the use of prohibited weapons, obedience to lawful commands, and ‘duty’ to retreat.

And in the final post we will briefly address the rules of engagement (ROE) concept of unit self-defence.

You say tomato, I say tomahto

Self-defence is not a unitary concept, but rather has different legal and operational meanings. It is vital to distinguish between the different meanings and ask in what context is the term ‘self-defence’ being used. Our chapter is about an individual claiming self-defence when facing potential criminal (or disciplinary) charges. It is not about a State’s right of self-defence under article 51 UN Charter (or customary international law).. Whether or not a State has a right to use force in national self-defence is a separate and distinct issue from whether an individual is not guilty of crime under the relevant self-defence provisions pertaining in a particular criminal jurisdiction. (more…)

The CIA and the Public Authority Justification: A Response to Orr

by Kevin Jon Heller

Jamie Orr has responded to my previous post on the drone memo, in which I argue that the OLC fails to adequately defend its conclusion that the CIA is just as entitled to the public-authority justification (PAJ) as the DoD. It’s a thoughtful response, and I appreciate Dean Orr taking the time to write it. But I don’t find his arguments convincing.

Orr begins by citing Art. 43 of the First Additional Protocol (AP I), which defines the armed forces as “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates.” In Orr’s view, that means the CIA qualifies as “armed forces” under Art. 43, because the CIA is responsible to President Obama, the Commander in Chief:

The CIA may not be a part of the US military, not subordinate to the Secretary of Defense, but it is hard to claim it is not in any way an armed “group” or “unit” which is under the Command of the responsible party – the same person with responsibility for the military services, namely the Commander in Chief.

Orr’s argument, however, proves too much. By his logic, every armed organisation in the federal government that is ultimately responsible to Obama would qualify as the “armed forces” of the US — the FBI, the DEA, the ATF, even the US Marshals Service. That can’t possibly be correct.

To be fir, Orr recognises that it is not evident a “paramilitary” group like the CIA qualifies as the armed forces of the US and thus has the right to participate in hostilities. In particular, he acknowledges that, at a minimum, the CIA would have to comply with the four criteria set out in Art. 4 of the Third Geneva Convention (GC III): (1) responsible command; (2) a fixed distinctive sign; (3) open carry of arms; and (4) compliance with IHL. Here is his argument that it does:

(a) and (c) seem to apply (remotely piloted aircraft are operated in the open). The claim is made that (d) applies. Does (b)? Hard to say, but it’s also hard to understand how this criteria has modern relevance with stand-off weapons of any sort.

I don’t think it’s hard to say at all that (b) is not satisfied. CIA agents does not wear uniforms, nor do they wear anything that identifies them as CIA — particularly at a distance. And why would they? The CIA is an intelligence organisation that operates almost exclusively in secret; as noted by its own website, the CIA’s mission is “conducting effective covert action as directed by the President.” Fixed distinctive signs are the last thing CIA agents would ever wear.

Indeed, that’s almost certainly why Orr downplays the role of a fixed distinctive sign, saying that its “hard to understand how this criteria has modern relevance with stand-off weapons of any sort.” But that comment gives away the ballgame. Orr is not really arguing that the CIA is entitled to participate in hostilities because its members comply with the four criteria in GC III, art. 4. On the contrary, he is arguing that the CIA only has to comply with three of the four criteria — conveniently, the three with which it can comply. The inconvenient fourth criteria is simply wished out of existence. (And note that the question is not whether the CIA’s weapons have a fixed distinctive sign; it’s whether the CIA’s agents have one. Which they don’t.) Lex ferenda, not lex lata.

Jamie Orr has responded to my previous post on the drone memo, in which I argue that the OLC fails to adequately defend its conclusion that the CIA is just as entitled to the public-authority justification (PAJ) as the DoD. It’s a thoughtful response, and I appreciate Dean Orr taking the time to write it. But I don’t find his arguments convincing.

Orr begins by citing Art. 43 of the First Additional Protocol (AP I), which defines the armed forces as “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates.” In Orr’s view, that means the CIA qualifies as “armed forces” under Art. 43, because the CIA is responsible to President Obama, the Commander in Chief:

The CIA may not be a part of the US military, not subordinate to the Secretary of Defense, but it is hard to claim it is not in any way an armed “group” or “unit” which is under the Command of the responsible party – the same person with responsibility for the military services, namely the Commander in Chief.

Orr’s argument, however, proves too much. By his logic, every armed organisation in the federal government that is ultimately responsible to Obama would qualify as the “armed forces” of the US and be entitled to participate in hostilities — the FBI, the DEA, the ATF, even the US Marshals Service. That can’t possibly be correct.

To be fair, Orr recognises that it is not evident a “paramilitary” group like the CIA qualifies as the armed forces of the US and thus has the right to participate in hostilities. In particular, he acknowledges that, at a minimum, the CIA would have to comply with the four criteria set out in Art. 4 of the Third Geneva Convention (GC III): (1) responsible command; (2) a fixed distinctive sign; (3) open carry of arms; and (4) compliance with IHL. Here is his argument that it does:

(a) and (c) seem to apply (remotely piloted aircraft are operated in the open). The claim is made that (d) applies. Does (b)? Hard to say, but it’s also hard to understand how this criteria has modern relevance with stand-off weapons of any sort.

I don’t think it’s hard to say at all that (b) is not satisfied. CIA agents does not wear uniforms, nor do they wear anything that identifies them as CIA — particularly at a distance. And why would they? The CIA is an intelligence organisation that operates almost exclusively in secret; as noted by its own website, the CIA’s mission is “conducting effective covert action as directed by the President.” Fixed distinctive signs are the last thing CIA agents would ever wear.

Indeed, that’s almost certainly why Orr downplays the role of a fixed distinctive sign, saying that its “hard to understand how this criteria has modern relevance with stand-off weapons of any sort.” But that comment gives away the ballgame. Orr is not really arguing that the CIA is entitled to participate in hostilities because its members comply with the four criteria in GC III, art. 4. On the contrary, he is arguing that the CIA only has to comply with three of the four criteria — conveniently, the three with which it can comply. The inconvenient fourth criteria is simply wished out of existence. (And note that the question is not whether the CIA’s weapons have a fixed distinctive sign; it’s whether the CIA’s agents have one. Which they don’t.)

It is important to recognize, though, that Orr’s argument concerning Art. 43 of AP I and Art. 4 of the GC III is ultimately beside the point. Orr may think that, as a matter of international law, the CIA is part of the US’s armed forces and thus has the right to participate in hostilities. But the US government doesn’t. Footnote 44 in the drone memo makes that exquisitely clear…

Let’s Call Killing al-Awlaki What It Still Is — Murder

by Kevin Jon Heller

As everyone on Twitter knows by now, the US government has released the notorious memorandum in which the OLC provides the supposed legal justification for killing Anwar al-Awlaki. I’m a bit disappointed not to get a mention in the memo; people in the know have suggested that a post I wrote in April 2010 led the OLC to substantially rewrite it. Vanity aside, though, I’m more disappointed by the memo’s failure to adequately address the most important issue regarding the “public authority justification,” which is at the heart of the memo’s conclusion that it would be lawful to kill al-Awlaki: how can the CIA be entitled to the public-authority justification when the CIA had no authority to use force against Al Qaeda in the Arabian Peninsula (AQAP)?

To understand why that’s a problem, let’s step back and consider what the memo says about whether the Department of Defense (DoD) had the legal authority to kill al-Awlaki. Remember, the memo was written before al-Awlaki was killed, at a time when it wasn’t clear which organisation — the DoD or the CIA — would actually kill him. (It was also written long after al-Awlaki was put on the kill list, as Hina Shamsi reminds us.)

The memo begins by emphasizing (p. 14) that its analysis — for both the DoD and the CIA — turns on whether 18 USC 1119, the foreign-murder statute, incorporates the “public authority justification” (PAJ). Indeed, it notes in n. 24 that the PAJ is the only defence it will consider. The memo then concludes (p. 20), after five pages of analysis, that in fact s 1119 does incorporate the PAJ. It’s an impressive analysis, and I find it convincing. So let’s grant that the PAJ potentially applies to the killing of al-Awlaki.

The question then becomes: who can invoke the public authority justification? The memo has little problem concluding that the DoD would be entitled to it, because (p. 20) “the operation would constitute the ‘lawful conduct of war’ — a well-established variant of the public authority justification.” In reaching that conclusion, the memo argues (1) that the AUMF covers AQAP, (2) that al-Awlaki qualifies as a targetable member of AQAP; (3) that the US is involved in a NIAC with AQ, making the laws of war applicable; and (4) that the DoD had pledged to obey the laws of war in any lethal operation.

I would quibble with much of the analysis, particularly the memo’s discussion of the scope of the non-international armed conflict between the US and “al-Qaeda.” But I’m prepared to accept that, in the abstract, the DoD would be entitled to invoke the PAJ. My problem is with the memo’s casual assertion that the PAJ applies equally to the CIA, which actually killed al-Awlaki. Here is its conclusion (p. 32)…

ICRC President’s Lecture for the Foreign and Commonwealth Office

by Kevin Jon Heller

On May 19, the Legal Directorate of the Foreign and Commonwealth Office held their 2nd Annual International Law Lecture. The lecture was delivered by Peter Maurer, the President of the ICRC, who spoke on “War, Protection and the Law: The ICRC’s approach to International Humanitarian Law.” More information about the speech is available at EJIL: Talk!, but I thought it would be worth posting links at OJ:

  • Video of the talk here.
  • Video of the subsequent Q&A here.
  • Transcript of the talk here.

Well worth checking out!

ICRC Customary Study Online

by Kevin Jon Heller

Just a reminder to readers: the ICRC’s phenomenal database of customary international humanitarian law is available for free online — and includes a great deal of information that is not available in the two printed volumes. Here is the ICRC’s description:

Today, the ICRC has made available on its online, free of charge Customary IHL database an update of State practice of 7 countries and 3 tribunals relating to armed conflicts and humanitarian issues such as the distinction between combatants and civilians, the use of nuclear, biological and chemical weapons, the protection of internally displaced persons, the protection of children and in particular child soldiers, the prohibition of sexual violence and slavery, the integration of international humanitarian law (IHL) into the training and operations of armed forces, and the prosecution of war crimes.   

Practice up till the end of 2010 of the following countries has been included for this most recent update of the Database: Armenia, Brazil, Cuba, El Salvador, Georgia, Nepal and New Zealand. Case-law of the Extraordinary Chambers in the Courts of Cambodia, the International Criminal Court and the International Court of Justice dealing with questions of IHL has also been updated. New practice is marked in green throughout the Database. 

The purpose of the Customary IHL database is to make not only the rules of customary IHL but also the underlying State and international practice easily accessible by everyone interested in the interpretation and application of IHL. The information in the database is easily accessible by means of three search parameters: subject matter, type of practice and country, which can be used separately or can be combined in a powerful search engine. 

The formation of customary law is an on-going process, as practice keeps evolving. That practice therefore has to be updated regularly to identify the rules of customary law, monitor their potential evolution and assess the extent to which they enhance protection for victims of armed conflict by confirming or filling in gaps in treaty-based law. We will continue to update the database with practice from about 100 countries and a number of relevant international bodies. The next updates of both national and international practice are scheduled for June and July 2014.

The database is updated through a partnership between the ICRC and the British Red Cross. A wide network of ICRC delegations and a number of Red Cross and Red Crescent Societies gather source material for the Database, which is processed under the supervision of the ICRC by a joint ICRC-BRCS research team based in the Lauterpacht Centre for International Law.

The database is an invaluable resource, one I use often. If you’re not using it, you should!

Guest Post: Rona on Mohammed v. Ministry of Defence and Detention in NIAC

by Gabor Rona

What is the source of the power to detain in an armed conflict that is not between states (non-international armed conflict, or NIAC)? Where is the relevant law on grounds and procedures for such detention found? Torture and drones aside, this is probably the most vexing, most controversial, and most significant of debates to come out of the “war on terror.” And it has been fired up anew in Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), a decision of the High Court of England and Wales that has already received a good bit of attention.

The reason I limit the question to “in armed conflict” is that outside of armed conflict, the source of detention power is clear. There, it’s domestic law as constrained by international human rights law that provides the answer. A single important asterisk is made necessary here because a very few recalcitrant states, like the US, deny that human rights law applies to their extraterritorial conduct.

The reason I limit the question to armed conflict “that is not between states” is that in wars between states (international armed conflict, or IAC), the Third and Fourth Geneva Conventions provide detailed instructions on who may be detained, for how long, and why.

But for NIACs, like that in Afghanistan, the Geneva Conventions are silent on the grounds and procedures for detention.

One position is that it makes absolute sense for the Geneva Conventions to be silent on this issue, since detention in NIAC can simply be governed by the law of the state where the detention is taking place – just the same as if it were not armed conflict. There is no work for international law of war to do here. Under this view, people may be deprived of liberty only on grounds and according to procedures set forth in domestic law and in accordance with international human rights law, they must be afforded prompt review by an independent body to determine the legality of detention and to order release, if detention is found to be unlawful. This is, in essence, the right of habeas corpus. This view is increasingly shared by international and national jurisprudence, not to mention human rights advocates.

The decision in Serdar Mohammed, a case that deals with detention power in NIAC, is in accord: in the absence of relevant powers expressed in the law of armed conflict, NIAC detention is subject to human rights law.

The continued applicability of human rights law in NIAC also finds support in the international treaties applicable to such conflicts…

Guest Post: Detention in NIACs: A Pledge in Favour of the Application of IHL

by Ezequiel Heffes

[Ezequiel Heffes holds an LL.M., Geneva Academy of International Humanitarian Law and Human Rights and is a lawyer, University of Buenos Aires, School of Law.]

Recently, the High Court of England and Wales delivered a judgement in Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB) holding, among other things (see here for an explanation of the whole case), that the United Kingdom lacks detention authority under international humanitarian law (IHL) with regard to individuals it captures in the course of the non–international armed conflict (NIAC) in Afghanistan. In the present case, Justice Leggatt held that Common Article 3 (CA3) and/or Additional Protocol II (AP II) do not provide legal power to detain in the context of NIACs.

Much has been written about this in the blogosphere (see here, here, here and here by Gabor Rona a few years ago). From a theoretical perspective, these writings have raised several interesting arguments. This post, however, will focus on certain practical issues.  I will offer four arguments to suggest that it would be simply counter–intuitive not to recognize that IHL already regulates detentions in NIACs, even though it seems to be explicitly silent on this question.

The protection gap argument

The fact that CA3 and AP II neither mention internment nor elaborate grounds of detention has led to different positions on the legal basis for internment in NIACs. International bodies have prohibited such actions in cases other than when it is necessary for reasons related to the conflict. Here, the Inter–American Commission affirmed with regard to detentions carried out by the Colombian AOGs that “international humanitarian law also prohibits the detentions or internment of civilians except where necessary for imperative reasons of security”. The same view was held by the UN Commission of Human Rights (Resolution 1995/77) when it appealed to AOGs to refrain from “arbitrary” detention of civilians. As Zegveld points out, these bodies seem to have derived this prohibition from the IHL applicable to international armed conflicts, in particular Geneva Convention IV (Zegveld, Accountability of Armed Opposition Groups, at 65).

On the other hand, other resolutions by the UN Commission on Human Rights, such as Resolution 1995/74, deny that IHL permits certain civilian detentions on the grounds that human rights law is, in principle, a body of law only addressed to States, and only States have authority to arrest and detain persons. This would mean that, in the present case, IHL is silent while the international human rights law (IHRL) provision on arbitrary detention (Article 5 ECHR) would only be applicable towards the UK. This, however, represents a protection gap for detainees held by AOGs during the NIAC.  If IHL and IHRL do not apply upon them, then AOGs are able to operate within a legal ‘black hole’ and can in principle detain with impunity from an international law perspective (Somer, at 667–668). This necessarily implies that those detained by non–state actors have less protection than those detained by States, a situation that in the context of an armed conflict could not exist since IHL recognizes the principle of the equality of the parties (see the fourth argument by Kubo Mačák).

The judicial guarantees argument

CA3 affirms that “the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized people” is prohibited with respect to protected persons. Article 5 of AP II complements this by including several standards based on the more rigorous provisions of GC III and IV.

These provisions and possible detentions in NIACs should be seen through the same prism. Indeed, by granting AOGs the possibility to “regularly” constitute courts and to legislate in order to meet the judicial guarantees component (CA3), States have recognized AOGs’ legal capacity to run a parallel non–state legislative and judicial system outside of State authority (Somer, at 657). If States have accepted this guarantee (and therefore AOGs can declare someone innocent or guilty, or even permitting the person detained to challenge his or her detention), it would be simple logic to accept that they can also detain individuals under the same legal framework. In fact, they are both related since the application of judicial guarantees may serve to prevent indefinite detention in either situation.

The hostage taking argument

Alternatively, if AOGs are not able to detain members of State forces, then there is no practical difference between that situation and hostage taking, which is forbidden by CA3. The 1979 Convention against the Taking of Hostages provides a useful definition: “any person who seizes or detains […] in order to compel a third party, namely, a State […] a natural or juridical person, a group of person, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages […]”. Even though it was not drafted with a NIAC in mind, the definition contained therein could be considered appropriate in times of armed conflicts (Prosecutor v. Sesay, Kallon and Gbao, para 579) and might cover AOG detentions in the absence of authority under IHL.

As Sivakumaran explains, the means by which an individual enters the custody of the hostage–taker may be through lawful and unlawful means (Sivakumaran, The Law of Non–International Armed Conflicts, at 269). Certainly, the “hostage” label would come after the person has been taken away, regardless of how he or she is taken, but having in mind that an AOGs’ detentions will always be illegal under domestic legislation and not regulated as such by international law, the only characterisation that could frame such conduct under the latter regime would be the “hostage–taking” one. If AOGs cannot detain under IHL, then every person under their control against their will would be a hostage and therefore each detention would constitute an automatic violation of international humanitarian law.

The realistic argument

If none of the abovementioned arguments are enough, then we should just move towards a more realistic approach. This alternative proposes that it is simply unreasonable to consider that AOGs cannot detain individuals from an IHL perspective. As Sassòli (at p. 19) correctly suggests, “[p]arties to armed conflicts intern persons, hindering them from continuing to bear arms, as to gain a military advantage. If the non–state actor cannot legally intern members of government forces it is left with no option but either to release the captured enemy fighters or to kill them”. This implies that AOGs’ members might attack government soldiers instead of trying to legally arrest them. Even if under domestic law the killing of State forces is inherently illegal, no one says that it is prohibited per se under IHL. Yet, according to Sassòli’s argument, we could simply analyse possible detentions by AOGs from a “military advantage” perspective.

To conclude

This post has attempted to demonstrate some possible arguments as to why detentions in NIACs should be logically framed under IHL having in mind the recent decision in Mohammed of the High Court of England and Wales, which held the IHL to authorize such detentions. Certainly, these arguments do not solve all the issues raised in the context of NIAC detentions, but there can (and should be) room for new paradigms, particularly in light of how NIACs operate in the real world and the practical protection concerns that arise if the law were to remain truly silent.