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Law of War

Bar Human Rights Committee of England and Wales Asks OTP to Investigate Gaza (Updated)

by Kevin Jon Heller

The request is supported by a number of leading QCs and professors in Britain. (Full disclosure: three of the signatories are barrister members and one is an academic member of Doughty Street Chambers, with which I’m associated.) Here is the Bar Human Rights Committee’s summary:

Public international law and criminal law Q.C.s and Professors based in Britain join with the Bar Human Rights Committee of England and Wales to urge the Prosecutor of the International Criminal Court (ICC) to initiate a preliminary investigation into crimes being committed in the Gaza Strip.

In response to the extreme gravity of the situation in the Gaza Strip, including spiralling civilian deaths and large scale destruction of homes, hospitals and schools, the Bar Human Rights Committee of England and Wales, supported by leading Q.Cs and Professors, has submitted a formal request, calling upon the Prosecutor of the International Criminal Court to initiate an investigation, pursuant to Article 15 of the Rome Statute.

The letter of request was submitted to the ICC on 3rd August 2014. It asserts that the 2009 Declaration, submitted by the Government of Palestine pursuant to Article 12(3) of the Rome Statute, provides the prosecutor with the necessary jurisdictional basis on which to act.

Kirsty Brimelow Q.C., Chair of the Bar Human Rights Committee, stated: “The initiation of an investigation would send a clear and unequivocal message to those involved in the commission of these crimes that the accountability and justice called for by the United Nations on the part of victims are not hollow watchwords. It would bring about an end to the impunity which has prevailed in the region to date, fuelling ever increasingly brutal cycles of violence. The international community cannot continue to act simply as witness to such bloodshed and extreme civilian suffering.”

I declined to sign the request, despite my profound respect and admiration for the signatories. Although I have no doubt that serious international crimes have been committed by both Israel and Hamas in Gaza, I find the request problematic. Moreno-Ocampo formally rejected the Palestinian Authority’s 2009 Declaration on behalf of the OTP, and the UNGA did not give Res. 67/19 — which upgraded Palestine to non-member-state status — retroactive effect. In my view, therefore, the 2009 declaration is effectively (and perhaps even legally) void. That conclusion is supported by Fatou Bensouda’s public statement that “the ball is now in the court of Palestine”, “Palestine has to come back,” and “we are waiting for them.”

The bottom line for me is that Palestine needs to submit a new declaration accepting the ICC’s jurisdiction on an ad hoc basis. (Assuming the Palestinian Authority has the authority to do so — about which see my previous post.) That declaration should refer the situation in Gaza, not simply Israel’s crimes, as the 2009 Declaration properly did. (The primary reason I do not believe the complaint filed by the Palestinian Authority’s Justice Minister can be considered an ad hoc declaration is that it singles out Israel for investigation.) The declaration should also clearly specify the temporal parameters of the jurisdiction Palestine is giving to the ICC. Any attempt to accept the Court’s jurisdiction retroactive to 1 July 2002, when the Rome Statute entered into force, is likely to fail, because I seriously doubt that the OTP wants to determine when Palestine became a state. The most plausible date for retroactive jurisdiction would be 29 November 2012, when the UNGA adopted Res. 67/19. (Like many others, I believe Palestine qualified as a state long before that. But I wouldn’t be the one deciding whether to investigate.)

In short, and again with the greatest respect to the signatories of the present request, I do not think it is wise to pursue what seems to me to be a procedural shortcut to ICC jurisdiction over the situation in Gaza. If the ICC is to become involved in the most heavily politicised conflict in recent history — and I think the likelihood the OTP would act on even a proper request is essentially zero — there should be no doubt whatsoever about either Palestine’s desire for an investigation or the ICC’s jurisdictional competence. If we’ve learned anything about the conflict in Gaza, it’s the importance of always crossing the legal “t’s” and dotting the legal “i’s.”

UPDATE: Multiple sources are reporting on Twitter that the ICC has announced it has no jurisdiction over the situation in Gaza. (See here, for example.) That would seem to put beyond doubt that any attempt to rely on the 2009 Declaration will fail.

Can the PA Ratify the Rome Statute? (A Response to Eugene)

by Kevin Jon Heller

As Eugene notes in today’s guest post, the Palestinian Authority (PA) appears to have decided to ratify the Rome Statute. I’ll believe it when I see it: the PA has threatened to ratify before, only to back down at the last moment. But could it? Most observers have assumed it could, but Eugene disagrees. I think his bottom line may well be right, as I will explain at the end of this post. But I have problems with other aspects of it.

To begin with, let’s dispense with Eugene’s claim that Abbas’s lack of control has an upside for him, because it “prevents him from being held responsible for the war crimes there. If he does control the territory, and has allowed it to be a rocket launching base for years, he would be in trouble.” Abbas has neither de jure nor de facto effective control over the members of the groups (especially Hamas) that are responsible for the rocket attacks on Israel. Nor does it seem likely that he would be part of the military chain of command in a Fatah-Hamas unity government. So whatever the state of Palestine’s responsibility for the rocket attacks might be, it is extraordinarily unlikely that Abbas would ever be held individually criminally responsible for them — now or in the future.

I also think that Eugene is overreading the OTP’s rejection of Mohammed Morsi’s attempt to accept the ICC’s jurisdiction. In particular, I think he is eliding the difference between two different concepts of “effective control”: for purposes of determining the government of a state, and for purposes of determining whether part or all of a state’s territory is belligerently occupied. Here is the relevant paragraph of the ICC press release concerning the decision:

In accordance with the legal test of “effective control,” the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law. Application of that test, on both the date that the purported declaration was signed and the date it was submitted, lead to the conclusion that Dr Morsi was no longer the governmental authority with the legal capacity to incur new international legal obligations on behalf of the State of Egypt. The information available indicates that, at all material times, the applicants did not exercise effective control over any part of Egyptian territory, including on the date the declaration was signed. Nor would it be consistent with the “effective control” test to have one putative authority exercising effective control over the territory of a State, and the other competing authority retaining international treaty-making capacity.

As the paragraph indicates, the OTP relied on effective control to determine which of two rival domestic Egyptian entities represented the government of Egypt. In that context, the OTP quite rightly decided that “the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law.” Morsi lost under that test, because his claimed failed all three conditions.

That concept of effective control has little to do with the concept of effective control in the law of occupation. Effective control in the latter context determines whether the law of occupation applies; it does not determine who the sovereign is in the occupied state. On the contrary, one state’s effective control over the territory of another state does not transfer sovereignty from the government of the occupied state to the occupying state; the government in the occupied state remains the occupied state’s government, even if it loses some of its powers of governance for the duration of the (ostensibly temporary) occupation.

I see no reason, therefore, why Israel’s occupation of the West Bank and possible occupation of Gaza would have any impact on the OTP’s decision to accept or reject the Palestinian Authority’s ratification of the Rome Statute. Even if the state of Palestine is completely occupied by Israel — which Israel obviously rejects — the government of Palestine is still the government of Palestine. Indeed, the only way that wouldn’t be true is if the state of Palestine suffered debellatio, understood as the complete destruction of a state’s sovereignty through conquest. If that were the case, then Israel would be the government of Palestine and would be entitled (exclusively) to make decisions on its behalf. That was the situation after World War II: because of the debellatio of the German state, the Allies, via the Control Council, exercised supreme legislative authority in Germany as a condominium. But that is hardly the case in Palestine, as both sides agree. (And in any case, the concept of debellatio may well have fallen into desuetude.)

All that said, I agree with Eugene’s claim that the Palestinian Authority may not qualify as the government of Palestine — at least without the inclusion of Hamas. According to Eugene, “Hamas came to power in a coup against Abbas’s government, and since the ‘statehood’ of Palestine, the latter has never exercise ‘effective control’ over the area. Indeed, the Hamas authorities in Gaza, such as Palestinian Prime Minister Ismail Haniyeh, dispute Abbas’s standing as president.” That’s an inaccurate description of the situation: Hamas was democratically elected by Palestinians in 2006, but was prevented from governing by Fatah until it seized control of Gaza in the 2007 civil war. Hamas’s election, however, only strengthens Eugene’s point, because it indicates that the Palestinian Authority may well have a Morsi problem if it attempts to ratify the Rome Statute without Hamas’s consent. The Palestinian Authority fails all of the elements of the OTP’s “effective control” test in the context of rival governments: it does not control all of the state of Palestine, it does not enjoy the “habitual obedience of the bulk of the population,” and it does not have “a reasonable expectancy of permanence.”

Nor, for that matter, does Hamas — for similar reasons. So it may well be that only a unity government between Fatah and Hamas, such as the one that Israel desperately tried to undermine prior to its invasion of Gaza, is competent to ratify the Rome Statute. Whether the Palestinians will still be able to form such a unity government remains to be seen.

Guest Post: The Use of Human Shields and International Criminal Law

by Tali Kolesov Har-Oz and Ori Pomson

[Ori Pomson and Tali Kolesov Har-Oz are both teaching assistants and LL.B. candidates at the Hebrew University of Jerusalem Law Faculty.] 

Introduction

The recent hostilities between Israel and Hamas have attracted a great deal of media and public attention. However, while a number of media reports have alluded to the legality vel non of certain actions committed by both sides, they have thus far contained little in-depth legal analysis.

One practice that has attracted significant attention is the purported use of “human shields” by Hamas. This post will present a legal analysis of such practices, and examine the possible implications of that analysis on the current situation in Gaza. Although it would be interesting to examine as well the possible criminal responsibility for statements endorsing or encouraging this conduct, that question will not be examined in the framework of this post.

The Use of Human Shields under International Law

In international humanitarian law (IHL), the term “human shields” concerns “civilians or other protected persons, whose presence or movement is aimed or used to render military targets immune from military operations.” The use of human shields both in international armed conflicts (IACs) and in non-international armed conflicts (NIACs) is considered a violation of customary international law (von Leeb, 15 ILR 395, n.1; ICRC, Rule 97). Treaty law directly prohibits such practice in IACs (GCIV 28; API, art. 51(7)) and indirectly in NIACs (e.g., CA 3 with Category ‘C’ Claims, 109 ILR 441).

Post-Second World War tribunals considered the use of human shields – focusing on POWs – to be a war crime (Student, 118-120; von Leeb,15 ILR 395, n.1). This was codified in the Rome Statute, which explicitly prohibits the use of human shields in IACs in art. 8(2)(xxiii), criminalizing utilization of “the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.” There lacks such a provision concerning the customary prohibition of the use of human shields in NIACs. Yet, considering the famous Tadić dicta that the dichotomy between IAC and NIAC crimes “should gradually lose its weight” and that “the current trend has been to abolish the distinction and to have simply one corpus of law applicable to all conflicts,” it could be argued that the analysis of Rome Statute’s provision concerning human shields in IACs is relevant to the analysis of the customary prohibition of the use of human shields in NIACs as well.

The specific elements relevant to the definition of the crime of using human shields in the International Criminal Court’s Elements of Crimes document are as follows…

Joint Declaration Charging Legal Violations in Israel’s Gaza Offensive

by Julian Ku

A group of international law and criminal law scholars have issued a joint declaration denouncing Israel’s Gaza offensive for causing “grave violations…of the most basic principles of the laws of armed conflict and of the fundamental rights of the entire Palestinian population.” It is the latest front in the public debate over legal violations arising out of the Gaza conflict, some of which we have noted here at Opinio Juris (the legality of denying electricity to Gaza and the legal effect of Israeli warnings to civilians).Personally, I don’t think there is enough evidence in UN and media reports to support the Joint Declaration’s main claim: that Israel is intentionally trying to target, terrorize, and collectively punish the civilian population of Gaza. Rather, my view is that Israel is conducting an aggressive military operation which is resulting in civilian deaths, and that those deaths may or may not be legal violations of the law of armed conflict (it is hard to say based on media reports at this time).   But I am not convinced (as the Joint Declaration seems to allege) that killing civilians is actually the basic intention and goal of the Israeli government.

Still, the Gaza conflict has plainly drawn the attention of the global community of international and criminal law scholars. I think these kinds of statements will have, and are already having, an impact on world opinion and the Israeli government. So it is worth taking a look.

Guest Post: Israel’s Use of Law and Warnings in Gaza

by Janina Dill

[Janina Dill is a Lecturer at the Department of Politics and International Relations at the University of Oxford.]

In the ongoing military campaign ‘Protective Edge’ the Israeli Defence Forces (IDF) consistently issues warnings before air strikes against targets in Gaza. The population is warned of impending attacks with phone calls, text messages or so called ‘knocks on the roof’ (dropping of non- or low-impact explosives on the intended target). The warnings play a central role in Israel’s claim that, contrary to Palestinian armed groups, namely Hamas; it obeys the strictures of international law. ‘While the IDF goes to extraordinary lengths to avoid civilian casualties, Hamas deliberately puts civilians in the line of fire, the IDF maintains on its official blog. The First Additional Protocol to the Geneva Conventions, the relevant sections of which have the status of customary international law, in Article 57(2) c indeed prescribes that ‘effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit’.

Warnings, their frequency and form, are at the centre of a narrative that Israel does not simply comply with, but goes beyond the call of international law in its care for the civilians of Gaza. ‘Israel’s use in the Gaza Strip of non-lethal warning shots to the roofs of buildings which constitute military targets … is not legally obligated’, the Military Advocate General’s Corps holds. Media commentary commends Israel for giving civilians a way out without even being obliged to do so. This is a misunderstanding of Article 57. The provision establishes an unequivocal obligation to warn before attacks that implicate the civilian population – as air strikes against a territory as densely populated as Gaza will regularly do. Granted, it is not an absolute obligation. The law recognizes that sometimes it may not be possible to warn. Crucially the provision does not say ‘warn if possible’, but ‘warn unless impossible’. It is open to interpretation when that is the case and reasonable people may disagree, but the default is to issue a warning and it is a failure to do so that requires explanation. Warnings are not acts of charity.

But are the kinds of warnings issued as part of Operation Protective Edge manifestations of the IDF’s commitment to the laws of war? The practice raises two distinct concerns. The first is that the air strikes the IDF carries out after issuing warnings are indicative of a misunderstanding of the legal implications warning before an attack. It has none! The second is the concern that the practice itself violates international law. I discuss them in turn. (more…)

Emerging Voices: The Rights of Women in Armed Conflict

by Jens Iverson

[Jens Iverson is a researcher at the Law Faculty of the University of Leiden.]

Imagine there is a potential peace agreement that would end a civil war, but only at the cost of leaving portions of the country in question in the hands of a group that systematically violates the human rights women and girls.  The government is backed by a foreign state who, in the past, effectively occupied the country.  Some policy considerations are obvious – continued armed conflict can be devastating to most involved, but resolving the armed conflict with a solution that denies at least half of the population their rights is deplorable.  But is this a purely pragmatic, policy question?

In this post, I assert that foreign states may be obliged to push for peace agreements that protect the rights necessary for a modern democracy, not only on the basis of a general concern for human rights but also based on a more ancient legal and ethical tradition.  The obligation emerges from a source one might not expect—the logic behind the exception to the prohibition of transformative occupation, and ultimately on self-interest.

Traditionally, radical transformation of the laws of occupied territory was prohibited.  There is, however, an exception to this rule, dating at least back to Immanuel Kant.  An occupying power is not obliged to protect a legal system that is itself geared towards war—it is acceptable to create a less war-like constitution for an occupied nation.  This is not a human rights argument, nor an argument based on sparing a civilian population, nor a purely pragmatic public policy argument.  Rather, the legitimate transformative role of an occupying power responds to the traditional justifications for going to war (satisfying the justa causa of the war).  If the war is being fought in response to aggression that has disrupted international peace, then the justa causa may be to restore a system of international peace.  But what does that have to do with the rights of women that would be protected in a modern democracy?

The general modern form of the hypothesis that democracy, including non-discrimination, is important for peace is the “democratic peace hypothesis.”  This hypothesis states that as the democratic nature of the two states increases, the probability for substantial armed conflict between those states during a given year decreases.  If this hypothesis is accurate, and should protecting and promoting the rights of women be an important component of the democratic nature of the state, then promoting and protecting the rights of women is not only important for its own sake but also because of the positive correlation with the sustainability of the peace.

Considered under this analysis, protecting the rights of women is not a side-issue or epiphenomenon that can be considered once the “primary” issues of national security and inter-state relations are resolved—rather such protection can be determinative as to whether the war was justified in the first place.

There are, of course, strong reasons to protect the rights of women based purely on a human rights analysis, and powerful points to be made in favor of protecting women’s interests purely on ethical and humanitarian grounds.  The argument in this post is not intended in any way to undermine such arguments or impugn their moral force.  It does suggest that there is a supplementary analysis that should be helpful in addressing the gap between the ideal of respect and promotion of women’s human rights in the transition to peace and the reality.  This supplementary analysis requires an analysis of the moral and legal justification of the foreign military intervention as a whole.  It is essentially rooted in a traditional framework for public international law-the legal relationship between sovereign states.

Protecting the rights of women during the transition out of armed conflict is critical for establishing a just and sustainable peace.  This is not a new insight.  The UN Security Council has passed several resolutions on women, peace, and security (UNSC Res. 1325 (2000), 1820 (2008), 1888 (2009), 1889 (2009), and 1960 (2010)). These resolutions provide evidence of the seriousness of the issue, and provide but have proven unsuccessful in fully addressing the problem.  Women are frequently victimized during armed conflict, underrepresented at the peace table, and disserved by the peace.

So why is this need not being fully addressed?  One difficulty may be the foundations upon which efforts to protect the rights and interests of women are typically built.  During conflict, the main foundation is International Humanitarian Law.  During early peace, there is an increasing role for human rights law and public policy.  International Humanitarian Law has numerous protections for civilians generally and in certain cases for women in particular, but many of those interests are short-term, often simply avoiding death or damage.  Human rights concerns and public policy concerns may be at their weakest when the terms of the new peace are being resolved.  There is a need for an additional rationale that would align the long-term self-interest of powerful actors (such as foreign states) with the self-interest of those placed in an unequal situation by systematic discrimination.

This logic does not, of course, limit itself to women.  Protecting the human rights of children, religious minorities, ethnic minorities, and other minorities is important if the armed intervention is to be justified, and the peace is to be democratic and durable.

Sometimes grasping an immediate, imperfect peace will be ethically and legally preferable to ongoing armed conflict, even if continued conflict comes with the hope of a better peace later.  There is a rationale to say that a foreign state should be reluctant to get in the way should local elites desire peace.  But too often, the foreign state has been too ready to consolidate a peace around a new government that does not respect human rights.  Foreign states, if they continue to have any role, should weigh the obligations they have based on their prior acts, and not jump too quickly to compromise the rights of women.

What is The Common Law of War?  

by Jens David Ohlin

Since the recent al Bahlul en banc decision before the D.C. Circuit, I have been thinking a lot about the Common Law of War. As others have already analyzed in detail (Steve, Peter, JonathanMarty & Steve), the D.C. Circuit upheld Bahlul’s conviction for conspiracy but threw out his conviction for material support for terrorism and solicitation. Material support and solicitation are unavailable for pre-2006 conduct because they are neither international crimes nor historically charged before military commissions. Conspiracy, on the other hand, is a different story. While it seems pretty clear that conspiracy is not a stand-alone offense under international law, the government has relied on the argument that conspiracy is historically chargeable before a military commission as part of the “common law of war.”

The exact status of the common law of war theory remains unknown because the court’s majority applied “plain error” review and not de novo review on the merits. Some judges concluded that Bahlul waived his objections by not raising them at trial (when Bahlul was declining legal assistance). For his part, Judge Kavanaugh appeared sympathetic to the common law of war argument, which arguably departs from his previous notes of skepticism regarding the theory in Hamdan II.

Since the common law of war idea is still wide open, I’ve been trying to come to terms with it and articulate precisely why I’ve been uncomfortable with it in the past. Indeed, when I first heard the government’s assertion of this theory, I was deeply skeptical and found it almost outrageous. The law of war is international by definition—it is the same for everyone and that’s the whole point of it. The law of war is based on reciprocity and it makes no sense to think of it as a creature of domestic law.

That being said, I think the issue is more complicated than I initially assumed.  In particular, it is important to note that Lieber himself makes reference to the common law of war in article 13 of the Lieber Code. Also, Richard Baxter, in his famous article on spies and unprivileged belligerency, concludes that acts of belligerency by an unprivileged belligerent simply aren’t violations of international law at all – they are violations of domestic criminal law. That’s absolutely correct. The absence of the privilege means that the unprivileged belligerent cannot exempt himself from the demands of domestic law. That’s something far different from an international crime. Unfortunately, Baxter also says in the preceding sentence that the saboteurs in Ex Parte Quirin were “no doubt” triable under the statutes and “military common law of the captors” – though he never explains what he means by this. Presumably he felt that the saboteurs in Quirin were subject to military commission jurisdiction despite the fact that their crimes were domestic violations, though he never articulates his reasoning. Of course, I don’t want to parse Baxter’s article like it’s gospel; I find there’s too much of that already with people treating semi-authoritative Commentaries like treaties. But I still find it interesting that both Baxter and Lieber used the phrase or something close to it.

So why is it so difficult to understand the common law of war? Here are four possible reasons:

1. We no longer live a common law world. Well not exactly. The U.S. is still part of the common law, in the historical sense, but really the common law doesn’t play the role it once did. It has substantially evolved. Statutes and regulations play a much larger role now – and this applies in almost every field of law. This certainly applies in the criminal law, where even the idea of a common law crime sounds just bizarre to today’s students. It’s just so far removed from how the law operates today.

2. Although state courts in the U.S. continue to evolve the common law in each jurisdiction in subject areas that are not covered by a particular statute (say tort law), this endeavor is temporally removed from its historical roots in common law England. Although the law in each jurisdiction can all be traced back to a common source, the doctrines have been developed in unique and different ways in each court. The common law – as something truly common across jurisdictions – has receded into history.

3. The law of war in general, and the jurisdiction of military commissions in particular, were woefully under-theorized in previous generations. This was certainly true in the Civil War, when other than Ex Parte Milligan as an enduring constraint on military jurisdiction, there was insufficient attention paid to developing a deep theory of military jurisdiction. Famously, Ex Parte Quirin was a rush decision, arguably fast-tracked because the Supreme Court was concerned that the administration might execute the prisoners before a decision was reached – which would have dealt a near-fatal blow to the Supreme Court’s institutional legitimacy and its self-asserted purview, announced in Madison v. Marbury, to say what the law is. It is no surprise that we now look back on Quirin as “not this Court’s finest hour” (Hamdi v. Rumsfeld, Scalia J. dissenting). One way of putting the point is to follow Steve Vladeck and say that the Court has never fully rationalized why military commissions are exempt from the Article III requirement of trial before a regular court. Another way of putting the point is that during the Civil War the concept of military jurisdiction was under-theorized and we are only now playing catch-up.

4. There is something that unites our use of the terms “international law” today with how the term “common law” might have been used in previous generations. This might help explain why there is an international law of war today and a common law of war in the past.  Although they are different, what unites them is a shared participation in a larger legal culture. For international law, the larger legal culture is the international order, with its unique sources for lawmaking (treaties, custom, etc.) and international organizations. For the common law, the larger legal culture is the law that is “common” to many jurisdictions who are all participating in a common legal culture and apply its law together – the “common law.” Although the common law is not the same as international law, it is something larger than pure domestic law, and as such it could, in theory, and historically as well, fulfill some of the demands of reciprocity that the laws of war demand. The problem, of course, is that the common law doesn’t function that way in today’s world. The whole point of the law of war is that it has to be bigger than just domestic law. And maybe the common law in the past was just big enough to support the law of war in some limited sense. Whether that’s enough in today’s world, I really don’t know.

Can Israel Cut Off Water and Power to Gaza?

by Kevin Jon Heller

That’s the question at the heart of a complicated debate between a variety of IHL scholars. The debate began with a legal opinion that Avi Bell submitted to the Knesset, in which he argued that nothing in international law prohibits Israel from cutting off the water and power it provides to Gaza. Although the opinion is dense — and has been updated in response to a document criticising an earlier published version — the bottom line is that Bell rejects the idea that Gaza is still occupied and believes it is thus impossible to find a positive obligation on Israel to continue to provide water and power (p. 5):

Some have argued that Israel is required to supply the Gaza Strip because Israel allegedly maintains control over Gaza. There are two versions of this claim: one version claims that Israel belligerently occupies the Gaza Strip; the other claims that Israel “controls” the Gaza Strip for purposes of human rights treaties or “post-occupation” duties even though it neither occupies nor exercises sovereignty over the Gaza Strip. When it controls territory through belligerent occupation, a state may have the duty supply certain goods to a civilian population if there is no other way to ensure access to the goods. Similarly, when it controls territory over which it has lawful sovereignty, a state may have the duty to supply certain goods when human rights treaties demand their provision to the civilian population. However, Israel does not control the Gaza Strip for purposes of the law of belligerent occupation or human rights  duties. Thus, Israel cannot be held to a duty to supply.

Bell’s legal opinion led a group of leading Israeli international-law scholars, including Eyal Benvenisti, Aeyal Gross (also at SOAS), David Kretzmer, and Yuval Shany, to submit a response to the Knesset. The essence of the response is that even if Israel is no longer occupying Gaza (on which the experts do not take an opinion), its ongoing control over basic features of Gazan life means that it is not free to completely ignore basic Palestinian humanitarian needs. Here is the key paragraph (pp. 10-11):

Israel and Gaza are not equal sovereign entities. Israel has controlled Gaza for decades, which resulted in significant dependence on Israeli infrastructure. Even after the disengagement, it still holds certain powers over the population in Gaza – including by its control over essential infrastructure. Since Israel does not allow, de facto, the development of independent infrastructure in Gaza, it cannot completely deny the responsibility to provide these essential supplies. Therefore, the interpretation suggested in the Opinion does not reflect a proper balance between the different objectives of IHL – even when considering the special challenges of asymmetric warfare. Chiefly, this is because it results in a legal “black hole” which deprives the civilian population of the effective protection of international law.

The debate between Bell and the other experts led Diakonia, a Swedish NGO, to commission a third report from Michael Bothe, one of the world’s foremost IHL experts. Bothe concludes, like the group of experts, that cutting off water and power to Gaza could (in certain circumstances) violate IHL. But he offers two independent bases for that conclusion…

Guest Post: Henderson & Cavanagh on Self-Defense During Armed Conflict

by Charles Kels

[Charles Kels is a major in the U.S. Air Force Reserve and an attorney for the Department of Homeland Security. He is writing in his personal capacity and his contribution is not meant to represent the views of the Department of Homeland Security, Air Force or Defense.]

Group Captain Henderson and Squadron Leader Cavanagh’s series of posts comparing and contrasting the Law of Armed Conflict (LOAC) and self-defense under criminal law (first, second, third, and fourth parts, along with the responses to posts one and four) provides an excellent analysis of how the legal basis for the application of force impacts the conditions upon its lawful use.

It is hard to argue with the central premise of the discussion: simply put, self-defense is not a part of LOAC. As the authors note, it is a term applicable to specific scenarios—namely, as a defense under criminal law and as a justification for the resort to force by states—and has different meanings depending upon the context in which it is invoked. This, by the way, is why I think the concept of “naked self-defense” as a standard for targeted killings is misplaced: it impermissibly (and I would argue counterproductively) conflates the jus ad bellum with the jus in bello.

The same can be said about the related issue of imminence. It has one meaning under a state’s right of self-defense, and another meaning under the law enforcement “force continuum,” but I’m unaware of any relevance to status-based targeting under LOAC. This is why some of the Obama administration’s pronouncements regarding imminent threats in the midst of what it deems an armed conflict have at times been so confusing.

The inapplicability of self-defense to LOAC is aptly encapsulated by Professor Ohlin vis-à-vis its interplay with the combatant’s privilege: the latter trumps the former, thereby rendering reliance upon it both unnecessary and self-defeating. Claiming self-defense in the face of criminal or disciplinary proceedings is essentially an excuse, but a privileged combatant who has exercised lethal force in compliance with LOAC has no need for vindication. In fact, he or she may be in line for a medal.

Yet, I am left wondering whether the discussion thus far elides a larger issue, rooted not in LOAC per se, but in the moral framework that undergirds it. That is, to what extent does the internal logic of LOAC as a coherent legal regime rest upon a generalized notion of individual self-defense? To the extent this insight has merit, I of course can’t take credit for it, although I have tried to flesh out its implications for remotely-waged warfare. It stems from Walzer’s famous formulation  (p. 34) of the “moral equality of soldiers,” and has found perhaps its most eloquent expression in the writing of legal philosopher Paul Kahn.

Essentially, Walzer’s notion is that “the capacity to injure” is what makes combatants legitimate targets in war. Kahn takes that argument to its logical conclusion, claiming that “the internal morality of warfare” is based upon the principle of “self-defense within conditions of reciprocal imposition of risk.” As such, what we lawyers call the combatant’s privilege is at heart “the soldier’s privilege of self-defense.”

Of course, given the irrelevance of imminence to LOAC, the risk posed by the identified enemy need not be immediate—hence another of Walzer’s well-known examples, the “naked soldier” (p. 138). Presumably, however, when that soldier gets dressed, he just may try and kill you (and may even be obligated to do so). This is what differentiates him from those who are hors de combat. So better to shoot him now, while you have the chance. What Michael Ignatieff calls the “tacit contract” of “kill or be killed” (p. 161) is still intact, even if attenuated.

One way to respond to Walzer, Kahn, and Ignatieff, et al. is simply to say that they’re wrong. Mutual risk has nothing to do with LOAC. To the extent that LOAC is concerned with promoting reciprocity, it’s a reciprocity of compliance, not physical peril. The jus in bello principle of proportionality, of course, imposes no requirement whatsoever with respect to parity in casualty rates among opposing forces.

Even so, it’s hard to deny that the reductive notion of combat as self-defense has intrinsic appeal, if nothing else than for providing a conceptually digestible précis of LOAC for those who actually have to implement its tenets in less than ideal circumstances. After all, the true value of LOAC is not just that it forbids some inhumane practices, but also that it legitimates certain acts of violence so that soldiers can do their jobs “without resorting to their own personal moral codes” or becoming paralyzed by principled indecision. This is especially so where, as in today’s conflicts, exhortations to abide by LOAC in order to incentivize compliance by the enemy are likely to fall on deaf ears (not to mention fail the straight-face test). At the end of the day, adhering to LOAC is about preserving our own humanity, not performing a risk-benefit analysis.

None of this detracts from the cogency of Henderson and Cavanagh’s observations, nor does it obviate the importance of avoiding confusion with respect to both the different contextual meanings of self-defense and their divergence from wartime targeting rules. However, I’m not sure that it’s possible to get away completely from accounting for permutations of self-defense when we talk about war-fighting. Otherwise, we risk being legally correct in the technical sense, while losing sight of the larger discussion over what it means to fight honorably.

The al-Senussi Admissibility Decision in Two Quotes

by Kevin Jon Heller

Libya’s Foreign Minister, 21 May 2014:

There is a complete absence of the army and the police [in Libya], which are responsible for the security of the state. Armed groups are not under control…. State-building needs to build security institutions first and foremost because with no security there can be no investments, building a real state, nor an effective criminal justice system to protect rights and freedoms.

ICC Appeals Chamber, 24 July 2014:

The Appeals Chamber concluded that there were no errors in the findings of the Pre-Trial Chamber that Libya is not unwilling or unable to genuinely prosecute Mr Al-Senussi.

Control Matters: Ukraine & Russia and the Downing of Flight 17

by Jens David Ohlin

The recent downing of Malaysian Airlines Flight 17, apparently by an anti-aircraft missile fired from within rebel-controlled territory in the Ukraine, has raised the specter that Russia is covertly (or not so covertly) supplying arms and assistance to the pro-Russian separatists operating within eastern Ukraine. Obviously, the facts here are somewhat contested and I have no insider or independent information about the firing of the missiles. What I say here is based on news reports in The New York Times and elsewhere, and our understanding of the situation is rapidly evolving.

But let’s assume, for the sake of argument, that this story (or something similar) turns out to be true. Let’s assume that the “BUK” anti-aircraft missile system was either provided to the Ukrainian rebels by Russian operatives, or that it was stolen by the rebels from the Ukrainian military, and then operated with assistance from Russian operatives and military advisors. It seems more likely that the missile system was provided directly by Russia, but even if the rebels stole it from the Ukrainian military, it seems unlikely that the untrained militia-members would have been capable of deploying it without Russian assistance. (Again, let’s just take this as an assumption, because alternate hypotheses exist, including the contention that the militia members are trained in anti-aircraft missile deployment because they are local defectors from the Ukrainian military).

If this story is true, it reveals how important the debate is, in international jurisprudence, between competing theories of control. This might seem like an obvious point, but the current situation in the Ukraine (vis-à-vis Russian influence) may stand at precisely the fault line between “effective control” and “overall control” – the two competing doctrines of attribution in international law.

As most readers already know, the effective control test was articulated in the ICJ’s Nicaragua judgment and offers a fairly robust set of standards for attributing the actions of an armed group to a particular state, essentially requiring that the armed units are operating on the instruction, or at the direction of, the foreign state. In these circumstances, the actions of the armed group can be attributed to the foreign state.

In contrast, the ICTY in Tadic declined to follow the ICJ’s Effective Control Test, and instead formulated and applied the broader Overall Control Test. The test was originally designed to determine in Tadic whether the armed conflict was an international armed conflict or a non-international armed conflict. If the conduct was attributable to a foreign state, then the armed conflict was international in nature. Subsequently, Cassese argued (correctly) that the test was, in fact, a general test for state responsibility. The test allowed for state responsibility in situations where a foreign power helped to coordinate the actions of an organized and hierarchically structured armed group by equipping, financing, or training the paramilitary force.

The dispute between these two tests is crucial because they really do give different answers in important cases. It seems to me that the Ukrainian situation falls directly on the fault line between the overall and effective control tests. If the Effective Control test applies, then it is not clear whether the shooting down of the airliner can be directly attributed to the Russian government (although that conclusion depends on which facts are unearthed in the investigation). On the other hand, if the Overall Control test applies, then there is a plausible argument that the shooting of Flight 17 can be attributed to Russia because their operatives probably helped train and equip, and coordinate, the activities of the pro-Russian militia. The Overall Control test supports the attribution of responsibility to Russia, while the Effective Control test probably does not.

Either way, one important insight about both tests is their black-and-white nature. Instead of a spectrum of control yielding different degrees of responsibility, the tests act as an on-off switch. Either there is state responsibility or there is not; either the acts are attributed or they are not. There is no sliding scale of responsibility based on the degree of foreign involvement or entanglement in the local affairs of the militia or paramilitary organization.

A final note on a related but distinct topic. It also seems pretty clear that pro-Russian militia were acting incompetently in shooting down the plane, assuming incorrectly that they were shooting down a military aircraft. How should one understand their level of culpability here? Recklessness comes to mind as the appropriate mental state since they probably did not engage in the appropriate due diligence to distinguish between military and civilian aircraft.

Although it is unclear whether this should be treated as an international crime (killing of civilians during an armed conflict) or a domestic crime (murder), I have to say that I have never found international criminal law’s treatment of crimes of recklessness particularly satisfying. Under domestic law, reckless killings are either classified as manslaughter or as the lowest degree of murder (such as depraved indifference to human life) depending on the jurisdiction and depending on the severity of the recklessness. Domestic law therefore produces a grading of the offense based on the lower mental state. In contrast, international criminal law has no lower offense for crimes of recklessness. Unlike the distinction between murder and manslaughter, a defendant is either convicted or acquitted of the war crime of killing civilians (with nothing in between).

Feiglin Is Advocating Crimes Against Humanity and War Crimes, Not Genocide

by Kevin Jon Heller

Twitter is abuzz with claims that Moshe Feiglin, the Deputy Speaker of the Knesset in Israel, has called for the commission of genocide against the Palestinians. Here is what he said, in relevant part:

Conquer – After the IDF completes the “softening” of the targets with its fire-power, the IDF will conquer the entire Gaza, using all the means necessary to minimize any harm to our soldiers, with no other considerations.

Elimination- The GSS and IDF will thoroughly eliminate all armed enemies from Gaza. The enemy population that is innocent of wrong-doing and separated itself from the armed terrorists will be treated in accordance with international law and will be allowed to leave. Israel will generously aid those who wish to leave.

Feiglin’s comments are vile, horrifying, and unfortunately all too common in Israel’s increasingly toxic right-wing political culture. As awful as they are, though, they do not amount to incitement to genocide, because Feiglin is advocating the forcible transfer or deportation of the Palestinians — commonly referred to as ethnic cleansing — not genocide. There are five types of genocidal acts: (1) killing members of a group; (2) causing serious bodily or mental harm to members of a group; (3) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (4) imposing measures intended to prevent births within the group; and (5) forcibly transferring children of the group to another group. The actions Feiglin advocates come closest to (3), but he makes clear that he is not advocating displacing Palestinians into a location where they could not physically survive, which would be genocide. (A pre-Genocide Convention example is the Armenian genocide, in which the Ottoman empire not only ethnically cleansed the Armenians, but drove them into the Syrian desert to die.) In short, Feiglin is advocating that Israel commit not genocide but crimes against humanity.

Feiglin is also, it’s worth noting, urging Israel to commit war crimes against the Palestinians. Here is another one of his suggestions:

Defense – Any place from which Israel or Israel’s forces were attacked will be immediately attacked with full force and no consideration for ‘human shields’ or ‘environmental damage’.

It is ICL 101 that it is a war crime to intentionally launch an attack knowing that it will — in the words of the Rome Statute — “cause incidental loss of life or injury to civilians… which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” In making that determination, an attacker must take into account any civilian who will be incidentally killed in an attack, even one who is serving as a human shield. Two wrongs do not make a right in ICL. By urging Israel to ignore the presence of civilians, therefore, Feiglin is urging Israel to launch attacks that are highly likely to be disproportionate.