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Law of War

States Are Failing Us in Syria — Not International Law

by Kevin Jon Heller

Last month, Just Security published a long and thoughtful post by Rebecca Ingber with the provocative title “International Law is Failing Us in Syria.” The international law she is talking about is the jus ad bellum — the illegality of unilateral humanitarian intervention (UHI) in particular. In her view, the failure of the international community to use force to end the humanitarian crisis in Syria indicates that an exception to Art. 2(4) for UHI is “the only means of preserving international law’s credibility in the use of force realm”:

The reality is that there will be times that states use force out of a sense of moral imperative and long-term strategic importance, and not out of a specific self-defense rationale. International law – and we international lawyers – can try to stand in the way, at times constraining morally imperative action, at times getting bulldozed; or we can look the other way and be sidelined, perhaps even tell policymakers and our clients to move forward without us. Or, we can engage and work with them to help craft the most sound, narrow, acceptable grounds possible, together with our allies. This view is not an acceptance that international law does not matter. It is an acceptance that international law – like so much public law – operates in a dynamic space that is inevitably interwoven with the reality of how states act and the widespread acceptance of its legitimacy.

I don’t want to focus here on the legal aspects of Ingber’s post, other than to note that when she claims “our allies… have become comfortable stretching the outer bounds of what international law has historically been thought to permit” with regard to the use of force, she links almost exclusively to UK practice. (The one exception is “unwilling or unable,” where she refers to the flawed Chachko/Deeks post that tries to categorise state positions on the doctrine.)

The legal questions are, of course, interesting. But what I find most problematic about Ingber’s post is its most basic assumption: namely, that the international community has failed to do more in Syria because UHI is not legal. That assumption, I think, is categorically false. If the King of International Law announced tomorrow that UHI was consistent with Art. 2(4) of the UN Charter, it would have no effect on the international response to the Syrian crisis. Literally none.

And that is because international law is not failing us in Syria. States are.

Or, more precisely, the self-interest of states is failing us. States have not intervened in Syria to end the humanitarian crisis because doing so would be immensely costly in terms of both blood and treasure, not because Art. 2(4) doesn’t permit UHI. There is no easy solution for states concerned about Syria, such as a Kosovo- or Libya-style airpower campaign. If they want to end the crisis, they will have to invade Syria and destroy the large and generally well-equipped Syrian army — a task that would make the invasion of Iraq look positively economical by comparison. And the sad truth is that the US is not going to spend billions of dollars and accept thousands of dead American soldiers to save a bunch of defenceless Syrian civilians. Nor is the UK. Or France. Or Germany. Or any other state.

Do intervention-minded scholars disagree? Does anyone really believe that there is a head of state out there — actual or even potential — who at this very moment is saying to herself “I could end the Syria crisis tomorrow if that damn Art. 2(4) didn’t prohibit unilateral humanitarian intervention”? The idea beggars belief. I am on record with my insistence that UHI is not only unlawful but criminal, but I’m not stupid. A successful UHI in Syria would result in a Nobel Peace Prize, not a confirmation of charges hearing.

What is most striking about Ingber’s post is that she barely attempts to defend her claim that international law is preventing the kind of UHI she believes is necessary in Syria. All she says is that “with respect to Syria alone, the fact that international law may have played a role in taking intervention off the table during the Obama presidency (and there are subtle indications that it did) should weigh heavily on us now.” I’ve read both of the documents to which she links, and the indications are subtle indeed. In the press conference, Obama openly acknowledges the real reason why the US did not intervene in Syria while he was President — it wasn’t worth the cost:

So with respect to Syria, what I have consistently done is taken the best course that I can to try to end the civil war while having also to take into account the long-term national security interests of the United States.

And throughout this process, based on hours of meetings, if you tallied it up, days or weeks of meetings where we went through every option in painful detail, with maps, and we had our military, and we had our aid agencies, and we had our diplomatic teams, and sometimes we’d bring in outsiders who were critics of ours — whenever we went through it, the challenge was that, short of putting large numbers of U.S. troops on the ground, uninvited, without any international law mandate, without sufficient support from Congress, at a time when we still had troops in Afghanistan and we still had troops in Iraq, and we had just gone through over a decade of war and spent trillions of dollars, and when the opposition on the ground was not cohesive enough to necessarily govern a country, and you had a military superpower in Russia prepared to do whatever it took to keeps its client-state involved, and you had a regional military power in Iran that saw their own vital strategic interests at stake and were willing to send in as many of their people or proxies to support the regime — that in that circumstance, unless we were all in and willing to take over Syria, we were going to have problems, and that everything else was tempting because we wanted to do something and it sounded like the right thing to do, but it was going to be impossible to do this on the cheap.

Obama takes the same position in the interview with Jeffrey Goldberg. Nothing in the interview suggests that the illegality of UHI had anything to do with Obama’s unwillingness to intervene more dramatically in Syria. On the contrary, as Goldberg explains by means of contrasting Obama with Samantha Power, he simply doesn’t believe in UHI:

Power is a partisan of the doctrine known as “responsibility to protect,” which holds that sovereignty should not be considered inviolate when a country is slaughtering its own citizens. She lobbied him to endorse this doctrine in the speech he delivered when he accepted the Nobel Peace Prize in 2009, but he declined. Obama generally does not believe a president should place American soldiers at great risk in order to prevent humanitarian disasters, unless those disasters pose a direct security threat to the United States.

Goldberg recounts many of the factors underlying Obama’s realist view of American military power. The key one, though, is pragmatic, not legal — the disaster of NATO’s supposedly humanitarian intervention in Libya:

But what sealed Obama’s fatalistic view was the failure of his administration’s intervention in Libya, in 2011. That intervention was meant to prevent the country’s then-dictator, Muammar Qaddafi, from slaughtering the people of Benghazi, as he was threatening to do. Obama did not want to join the fight; he was counseled by Joe Biden and his first-term secretary of defense Robert Gates, among others, to steer clear. But a strong faction within the national-security team—Secretary of State Hillary Clinton and Susan Rice, who was then the ambassador to the United Nations, along with Samantha Power, Ben Rhodes, and Antony Blinken, who was then Biden’s national-security adviser—lobbied hard to protect Benghazi, and prevailed. (Biden, who is acerbic about Clinton’s foreign-policy judgment, has said privately, “Hillary just wants to be Golda Meir.”) American bombs fell, the people of Benghazi were spared from what may or may not have been a massacre, and Qaddafi was captured and executed.

But Obama says today of the intervention, “It didn’t work.” The U.S., he believes, planned the Libya operation carefully—and yet the country is still a disaster.

The Libya fiasco is particularly important, because it is tempting to believe that collective UHI in Syria might be more successful than individual UHI. It probably would — except that the benefits of collective action would still not outweigh the reluctance of powerful states to spend blood and treasure for merely humanitarian concerns. Libya is a case in point: NATO countries were willing to drop bombs on the Libyan army, but they would never have committed soldiers to a ground invasion. They are not willing to put them in Libya now, when the risks are minimal. So even if Ingber is right that states have shown “widespread support for military action in response to humanitarian crises” (and I don’t think she is), she is still missing the fundamental point: they support military action by others, not by them. It’s not an accident, for example, that interventionists like John McCain and Lindsey Graham expect Arab soldiers to do the fighting for them in Syria.

And, of course, Syria is not Libya. Or even Kosovo. On the contrary: unlike in those situations, UHI in Syria, whether individual or collective, risks a shooting war with Russia, the second most powerful military in the world, and perhaps with Iran. That unpleasant possibility provides a far more effective deterrent to military action against Assad than the text of Art. 2(4) ever will.

What, then, is to be gained by “divining” or “crafting” an exception to Art. 2(4) for UHI, as Ingber suggests? The legality of UHI would not lead to humanitarian interventions in Syria or in any other comparable situation. But it would give powerful states like the US yet another pretext for using force to promote their national interests. Why invoke an inherently selfish rationale such as self-defence as a pretext for aggression when you could invoke humanitarian intervention instead? Who is opposed to helping innocent civilians? And if we take your land and oil and other resources along the way, well, we have to pay for our selflessness somehow, don’t we?

Legalising UHI, in short, will not lead to more humanitarian uses of force. It will lead to more aggression. And that is because international law is not the problem in Syria and elsewhere. States are.

Symposium on Israeli Settlements

by Kevin Jon Heller

AJIL Unbound has just posted the contributions to a symposium entitled “Revisiting Israel’s Settlements.” The contributors are all superb: Eyal Benvenisti, Pnina Sharvit Baruch, David Kretzmer, Adam Roberts, Omar M. Dajani, and Yaël Ronen. The true highlight, though, is the essay that accompanies the symposium and will be published in the next issue of the American Journal of International Law: Theodor Meron’s “The West Bank and International Humanitarian Law on the Eve of the Fiftieth Anniversary of the Six-Day War,” which can be downloaded for free. Meron’s essay revisits the famous memo he wrote in 1967 as the Legal Adviser of the Israel Ministry of Foreign Affairs, in which he made clear, inter alia, that Israel was occupying the West Bank and that building settlements there would violate the Fourth Geneva Convention. Once again Meron painstakingly vivisects the frivolous legal arguments that Israel and its apologists have offered to excuse the occupation and the settlements. But it’s his conclusion that is particularly important:

But if the continuation of the settlement project on the West Bank has met with practically universal rejection by the international community, it is not just because of its illegality under the Fourth Geneva Convention or under international humanitarian law more generally. Nor is it only because, by preventing the establishment of a contiguous and viable Palestinian territory, the settlement project frustrates any prospect of serious negotiations aimed at a twostate solution, and thus of reconciliation between the Israelis and the Palestinians. It is also because of the growing perception that individual Palestinians’ human rights, as well as their rights under the Fourth Geneva Convention, are being violated and that the colonization of territories populated by other peoples can no longer be accepted in our time.

It’s a shame that Israel didn’t listen to Meron in 1967. Israel might be geographically smaller if it had, but it would also be far more safe and secure. Instead, the settlements metastasise, Israel’s democracy deteriorates, and Palestinians continue to suffer.

Charlie Dunlap’s Defence of Israel’s Attacks on Hezbollah in Syria

by Kevin Jon Heller

Last week, Asaf Lubin offered a compelling post at Just Security wondering why Israel’s repeated attacks on Hezbollah arms shipments in Syria have not received the same kind of jus ad bellum scrutiny as the US’s recent attack on a Syrian airfield. Today, Charles Dunlap provides his answer on the same blog: the Israeli attacks are clearly legal, so why would anyone scrutinise them? Here are the relevant paragraphs:

[I]t appears to me that the Israeli strike sought to destroy weapons in transit before Hezbollah can burrow them into densely-populated areas.  Of course, some JAB scholar might argue about the imminence of the threat as justifying anticipatory self-defense, but if one carefully reads the Obama administration’s “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations” on that point (p. 9), it would be hard not to conclude that the strike would fit the criteria.

It is especially telling that the Obama administration concluded – correctly in my view – that it is “now increasingly recognized by the international community, the traditional conception of what constitutes an ‘imminent’ attack must be understood in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.”

Along that line, this past January UK Attorney General Jeremy Wright gave a speech which echoed much of the Obama Administration’s approach.  Wright does caution that “remote threats or threats that have not yet materialized” would not fit the necessary criteria, but I don’t think in the case of Hezbollah those exclusions would apply.  Additionally, Wright endorsed – as does the Obama framework – Sir Daniel Bethlehem’s principles laid out in 2012 that included assessing whether there will be another “clear opportunity to act” defensively.

In other words, the analysis of “imminence” in this instance could properly take into account Hezbollah’s history of hostile actions against Israel, as well as its adaption of a “technique” which is “designed to exacerbate civilian risk.”  A strike on the Damascus warehouses makes sense as it could well be the last “clear opportunity to act” before the weapons could be embedded into civilian areas in easy range of Israel where they could be countered only at great risk to noncombatants.

Thus, the lack of JAB discussion about the reported Israeli bombings in Syria may simply reflect that the bulk of the international community finds that the use of force under these circumstances is an acceptable act in anticipatory self-defense.  We can’t ignore the fact that few nations other than Russia or Syria evinced much concern about the legality of the strike.

I don’t find Charlie’s argument convincing. The first problem concerns his claim that the lack of attention to Israel’s attacks “may simply reflect that the bulk of the international community finds that the use of force under these circumstances is an acceptable act in anticipatory self-defense.” He cites only two states in defence of the idea that the “international community” accepts this type of anticipatory self-defence: the US and the UK. Needless to say, two Global North states known for their aggressive interpretation of the jus ad bellum do not an “international community” make. Moreover, Charlie fails to acknowledge the repeated denunciations of anticipatory self-defence by the Non-Aligned Movement (NAM), which represents 120 states. 120>2.

To be fair, Charlie seemingly tries to address this problem by implying that the failure of states (other than Russia and Syria) to specifically condemn the Israeli attacks indicates that they accept the US and UK understanding of imminence. But that clearly isn’t the case. As he acknowledges, Israel itself has not claimed that the attacks are legitimate anticipatory self-defence. Nor has any other state on Israel’s behalf — the US and UK included. The “silence” of the international community can thus hardly be interpreted as acquiescence — particularly in light of NAM’s repeated denunciation of anticipatory self-defence. States are not required to respond to scholarly interpretations of the use of force. When Israel claims its actions are legal because they represent anticipatory self-defence and NAM remains silent, we’ll talk.

It’s also worth noting that Charlie’s account of Israel’s attacks in Syria does not even bring them within the ambit of anticipatory self-defence — or at least not easily. According to him, “the Israeli strike sought to destroy weapons in transit before Hezbollah [could] burrow them into densely-populated areas.” Charlie finds such “burrowing” problematic — justifiably! — because it makes it more difficult for Israel to destroy the weapons caches without causing disproportionate civilian harm. But that is a jus in bello problem, not a jus ad bellum one. The fact that Hezbollah weapons are in a difficult to attack location does not mean that those weapons will be immediately used against Israel. And that is true even in light of Hezbollah’s “history of hostile actions,” which hardly indicates that Hezbollah attacks Israel whenever it has the material means to do so. The mere presence of the weapons in a location near to Israel thus seems to represent precisely the kind of “remote threat[] or threat[] that [has] not yet materialized” that Jeremy Wright, the UK Attorney General whom Charlie cites in defence of his position, says does not give rise to the right of self-defence.

I will say, though, that Charlie’s explanation of the Israeli attacks raises an interesting issue concerning the relationship between the  jus in bello and the jus ad bellum. We are accustomed to the idea that the two legal regimes are independent, and it is beyond doubt that failing to comply with the jus ad bellum does not affect the equal application of the jus in bello. But the converse is not true, as the ICJ specifically affirmed in the Nuclear Weapons case (para. 42):

[A] use of force that is proportionate under the law of self- defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law.

The jus ad bellum requirement that self-defence comply with IHL does, in fact, suggest that the imminence of an attack should be assessed in light of the victim state’s ability to defend itself in a way that complies with IHL. So I don’t think we can reject the “last clear opportunity to act” understanding of imminence out of hand. On the contrary, if an attack will only become imminent under the traditional conception at a time when the victim state cannot defend itself in an IHL-compliant way, I think the victim state should be entitled to defend itself at a temporally earlier moment, when IHL compliance is still possible.

Even that “relaxed” idea of imminence, however, presupposes that the defended-against attack is more than merely hypothetical. So it’s difficult to see how Israel’s strikes on Hezbollah’s arms shipments could qualify as legitimate acts of self-defence. On the contrary: they are precisely the kind of anticipatory self-defence that international law prohibits.

An Important Absence in the Syria War Crimes Accountability Act of 2017

by Kevin Jon Heller

On Monday, my friend Beth van Schaack posted an excellent analysis at Just Security of the Syria War Crimes Accountability Act of 2017, a bipartisan Senate bill “[t]o require a report on, and to authorize technical assistance for, accountability for war crimes, crimes against humanity, and genocide in Syria.” Beth summarises the most important aspects of the bill; in this post I want to focus on Section 7, which authorises US technical assistance to certain non-US accountability mechanisms. The most important paragraph in Section 7 is this one (emphasis mine):

(a) IN GENERAL.—The Secretary of State (acting through appropriate officials and offices, which may include the Office of Global Criminal Justice), after consultation with the Department of Justice and other appropriate Federal agencies, is authorized to provide appropriate assistance to support entities that, with respect to war crimes, crimes against humanity, and genocide perpetrated by the regime of President Bashar al-Assad, all forces fighting on its behalf, and violent extremist groups in Syria beginning in March 2011—

(1) identify suspected perpetrators of war crimes, crimes against humanity, and genocide; (2) collect, document, and protect evidence of crimes and preserve the chain of custody for such evidence; (3) conduct criminal investigations; (4) build Syria’s investigative and judicial capacities and support prosecutions in the domestic courts of Syria, provided that President Bashar al Assad is no longer in power; (5) support investigations by third-party states, as appropriate; or (6) protect witnesses that may be helpful to prosecutions or other transitional justice mechanisms.

There a very interesting — and potentially very important — absence in Section 7(a). As the bolded text indicates, the paragraph only authorises the US to provide technical assistance to entities that are investigating international crimes committed by pro-Assad forces and “violent extremist groups.” Note what is missing from that construction: Syrian rebel groups. The bill does not permit the US to support any entity investigating war crimes, crimes against humanity, and acts of genocide committed by rebels.

Lest anyone think I am reading Section 7(a) too narrowly, consider the wording of Section 3(1), which summarises acts that the US “strongly condemns” (emphasis mine):

(A) the ongoing violence, use of chemical weapons, targeting of civilian populations with barrel, incendiary, and cluster bombs and SCUD missiles, and systematic gross human rights violations carried out by the Government of Syria and pro-government forces under the direction of President Bashar al-Assad; and (B) all abuses committed by violent extremist groups and other combatants involved in the civil war in Syria.

It is difficult to see who “other combatants involved in the civil war in Syria” might be if they are not rebels. Indeed, Section 5(a), which requires the Secretary of State to submit a report on international crimes to Congress, explicitly distinguishes between “violent extremist groups” and rebel groups (emphasis mine):

(b) ELEMENTS.—The reports required under subsection (a) shall include— (1) a description of alleged war crimes, crimes against humanity, and genocide perpetrated during the civil war in Syria, including— (A) incidents that may constitute war crimes, crimes against humanity, or genocide committed by the regime of President Bashar al-Assad and all forces fighting on its behalf; (B) incidents that may constitute war crimes, crimes against humanity, or genocide committed by violent extremist groups, anti-government forces, and any other combatants in the conflict.

In light of Section 5(a), it is clear that Section 7(a) does not authorise the US to support an entity that is investigating international crimes committed by rebels.

That said, the bill is unclear in one important respect: whether the US can support an entity that investigates international crimes committed by both pro-Assad forces and rebel groups. On a literal reading of Section 7(a), the answer would seem to be no. But the sponsors of the bill might disagree. Journalists?

I agree with Beth that the Syria War Crimes Accountability Act of 2017 is an important step forward for accountability in Syria. Unfortunately, it also reflects the US’s tendency to take international crimes committed by rebel groups much less seriously than those committed by Assad’s forces and by ISIS.

Bad Criminal Law in the Alexander Blackman Case (With Addendum)

by Kevin Jon Heller

In September 2011, Alexander Blackman, a Sergeant in the Royal Marines serving in Afghanistan, executed a Taliban fighter who had been incapacitated by his wounds.This was no spur-of-the-moment killing, as video recovered one year later makes clear. Here is the Court Martial’s summary of Blackman’s actions, as shown on the video:

[The insurgent] had been seriously wounded having been engaged lawfully by an Apache helicopter and when [Blackman] found him he was no longer a threat. Having removed his AK47, magazines and a grenade, [Blackman] caused him to be moved [because Blackman] wanted to be out of sight of [the] operational headquarters at Shahzad so that, to quote what [Blackman] said: ‘PGSS can’t see what we are doing to him.

He was handled in a robust manner by those under [Blackman’s] command clearly causing him additional pain and [Blackman] did nothing to stop them from treating him in that way. When out of view of the PGSS [Blackman] failed to ensure he was given appropriate medical treatment quickly and then ordered those giving him some first aid to stop.

When [Blackman was] sure the Apache helicopter was out of sight, [Blackman] calmly discharged a nine millimetre round into his chest from close range. [Blackman’s] suggestion that [he] thought the insurgent was dead when [he] discharged the firearms lacks any credibility and was clearly made up after [he] had been charged with murder in an effort to concoct a defence. It was rejected by the Board.

Although the insurgent may have died from his wounds sustained in the engagement by the Apache [Blackman] gave him no chance of survival. [Blackman] intended to kill him and that shot certainly hastened his death.

[Blackman] then told [his] patrol they were not to say anything about what had just happened and [Blackman] acknowledged what [he] had done by saying [he] had just broken the Geneva Convention. The tone of calmness of [his] voice as [he] commented after [he] had shot him were matter of fact and in that respect they were chilling.”

Not surprisingly, the Court Martial convicted Blackman of murder and sentenced him to life imprisonment. All of his fellow soldiers were acquitted.

Fast forward to last week — when the Court Martial Appeal Court (CMAC) allowed Blackman’s appeal, substituted a verdict of manslaughter for murder on the ground of diminished responsibility, and reduced his sentence to seven years imprisonment. Blackman will be a free man, with an honourable discharge from the Royal Marines, in a couple of weeks.

From a criminal law perspective, I find CMAC’s judgment profoundly unconvincing. I will explain why in this post.

CMAC’s reasoning proceeded in three steps. First, it found that Blackman had suffered from an “adjustment disorder” at the time of the killing…

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

by Kevin Jon Heller

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

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

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

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

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

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

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

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

America’s Hubris, Cambodia Version

by Kevin Jon Heller

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

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

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

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

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

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

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

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

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

Or to build the wall between the US and Mexico.

Two Positions at PHAP

by Kevin Jon Heller

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

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

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

The second is Communications Officer:

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

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

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

Symposium on Asia and International Law

by Chris Borgen

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

The article’s abstract explains:

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

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

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

Boer on Footnotes in Use of Force Scholarship

by Kevin Jon Heller

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

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

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

Read Boer!

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

by Kevin Jon Heller

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

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

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

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

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

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

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

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

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


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

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

by Kevin Jon Heller

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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