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Escalation of Violence in Bangui: Has MINUSCA Become Party to a Conflict in CAR, and What Would That Mean?

by Bianca Maganza

[Bianca Maganza is a PhD candidate in International Law and a Teaching Assistant at the Graduate Institute of International and Development Studies in Geneva.]

Some days ago, the United Nations Multidimensional Integrated Stabilisation Mission in the CAR (hereinafter, MINUSCA) got involved in heavy fire exchange with an armed group known as KM5 in Bangui, the capital of the Central African Republic (hereinafter, CAR). Security in CAR is rapidly deteriorating since some weeks, and accidents such as the one just mentioned are becoming, if not the norm, for sure no longer the exception. Indeed, it is not the first time that a situation of direct confrontation between the UN mission and the rebels arises. Although facts are not fully confirmed and the situation is still unfolding at the time of writing, it seems worth considering the consequences that the episode may entail under international humanitarian law (hereinafter, IHL).

The issue of the role played by IHL in the context of so-called peace operations is a much-debated and complex one (see, for example, the recently published Leuven Manual on the International Law Applicable to Peace Operations). Crucial aspects such as those related to the consequences of the application of IHL on issues of targeting and on the international prosecution of crimes committed in relation to the situation have been brilliantly covered elsewhere, and I will not discuss them here. The same is true for jus ad bellum considerations vis-à-vis the mandate and the evolution of traditional peacekeeping into “stabilisation” missions. While the main case study in this respect has so far been that of MONUSCO in the DRC, in particular as regards its Intervention Brigade, it has been rightly claimed that MINUSCA is the new frontier for such discussion.

In this post, I want to focus on a specific aspect of the situation, namely the possibility that – provided that some factual circumstances are reached – a multinational mission spearheaded by the UN becomes as such party to a conflict with the armed group against which it is fighting. This case is different from the one following the so-called support-based approach developed by Ferraro, which I am not discussing here. Although the fact that IHL may apply to situations in which a multinational operation is involved is nowadays accepted, states and international organisations are generally reluctant to admit that a peace operation has become party to an armed conflict. Such possibility has been often discussed but frequently let sink through the lines and rarely tackled head on. If, on the one hand, the capacity of a multinational operation to become party to the conflict is often taken for granted, the concretisation of such a possibility is on the other hand never explicitly acknowledged in terms of its consequences.

The facts that recently took place in Bangui provide the occasion to discuss the legal significance of such a case.

The facts

After the failure of a first attempt undertaken some days before, in the night between 7 and 8 April 2018, what was announced as joint law enforcement operation of MINUSCA, the Central African Armed Defense Forces (FACA) and the Internal Security Forces (ISF) aimed at disarming and arresting some criminal groups in the PK5 area of Bangui turned into violent fire confrontation between the armed groups and the mission.

According to the press statement released by MINUSCA, at a given moment, “heavily armed elements of criminal groups in the area deliberately fired on international forces, prompting a return of fire to push these elements back”. According to other sources, it is the MINUSCA contingent that entered the area shooting in the first place. As a result, eight peacekeepers were wounded, and one died. Some civilian casualties are also reported. In any case, it is quite clear that the operation was not a success for MINUSCA: for the second time in a matter of few days, the contingent had to leave the area and had been the object of subsequent attacks.

A conflict between MINUSCA and the armed group?

Regardless of who started the fire exchange, it is more than legitimate to ask whether the threshold for IHL applicability has been reached with the incident of 8 April – if not even before. In fact, despite the careful employment of the language of law enforcement in MINUSCA’s press releases – referring to “criminal groups”, “gangs” and “disarmament operations” – the reality on the ground seems to point to another direction.

Working on the hypothesis that a conflict, if any, ought to be a NIAC due to the involvement of non-state armed groups against the contingent spearheaded by the UN, the situation has to be analysed under the two criteria of intensity of hostilities and organisation of the parties as developed by the ICTY in the Boškoski case.

Intensity

Applying the first prong of the test to the single incident under analysis, video footage clearly shows MINUSCA troops engaging the area through the use of heavy weaponry. The presence of civilian casualties and fleeing civilians, if confirmed, is a further factor to consider when assessing the intensity of the armed confrontation. The episode must be assessed against the broader background of the situation in CAR. The general secrecy regarding the number, details and nature of MINUSCA operations cannot hide the fact that incidents like the one discussed here are not isolated but had already happened and keep happening in the country. The recent security deterioration in the area and the repeated, unsuccessful attempts by MINUSCA to seize the neighbourhood testify to the seriousness of the situation. The situation remains unchanged after the incident of 8 April, and following the main incident the mission has been the object of subsequent attacks in another area of the city. It is highly probable that the mission will attempt yet another operation to gain control of the neighbourhood – possibly, deploying more force to be able to finally overcome the enemy.

In light of the above, it seems at least plausible to argue that the intensity level has been reached either regarding the single attack under analysis – in fact, a NIAC can be a matter of hours or days (see, in addition to the case law of the ICTY, Abella v. Argentina, known as “La Tablada” case, before the Inter-American Commission of Human Rights) – or as a result of the series of episodes involving MINUSCA and the armed group since some time. Assuming that this is the case, for the sake of argument, the next step is an assessment of the organisation of the parties involved.

Organisation of the parties

That of organisation of the parties contains in itself the two other interdependent criteria of control over the troops and capacity to comply with the rules of war – both in abstract, through a disciplinary system and chain of command, and through the concrete possibility of respecting the most basic principles such as those of distinction and precaution. These seem, to me, the features that differentiate a collective entity having the capacity to become party to a conflict from a random group of individuals involved in armed violence.

Most of the analyses of situations of multinational operations potentially involved in an armed conflict stop at the assessment of the organisation of the armed group for the sake of establishing the existence of a NIAC. However, it seems to me that the only way to fully satisfy the test is to apply the analysis to both sides. As evident as the result may be, to be able to claim that MINUSCA has become party to a conflict with KM5, one shouldn’t stop at whether the armed group is sufficiently organised to reach the threshold of a NIAC but also ought to address the features of the mission itself.

In the case at stake, it seems undeniable that KM5 shows and deploys a considerable amount of organisation. To a certain extent, it can be argued that it even controls the neighbourhood known as PK5: it was indeed following continuous requests by the residents of the area that MINUSCA decided to act to disarm the armed group and try to “liberate” PK5. As we have seen, MINUSCA attempted to take the neighbourhood back more than once, without success. As for elements of control, KM5 is organised in auto-defence patrols, therefore showing capacity to coordinate action and logistics, and acts in execution of the orders given by its leader, Nimery Matar (known as “Force”), who even recently released a video declaring to be ready to fight in case MINUSCA would have dared entering the area he controls. While we would need more facts to weigh the group’s potential compliance with IHL, the existence of a command structure can arguably point to such abstract capacity.

When it comes to the UN mission, all three accounts seem equally warranted. The mission has by definition a clear organisational structure and a chain of command. Moreover, respect for IHL is part of its mandate and generally warranted by the 1999 UN Secretary General’s Bulletin. Even though the Status of Forces Agreement (hereinafter, SOFA) between MINUSCA and CAR is not publicly available, respect for IHL is included in the model UN SOFA and usually reflected in single SOFAs concluded with host countries.

MINUSCA as party to a conflict

The purpose of this post is not directly that of taking a position on whether or not the situation in CAR amounts to an armed conflict between MINUSCA and the armed group against which it is fighting. Even though the facts reported above seems to point to a considerable level of intensity, full confirmation of what happened is still awaited and sources are scattered and not always reliable. My point is rather that, in case the required intensity threshold is reached, both sides have the capacity to become parties to a conflict.

The main consequence of considering MINUSCA as party to an armed conflict – a NIAC, in this case – would be that the mission as a whole is bound to respect at least the provisions of CA3 plus any other customary international law rule deemed applicable to the situation. More specifically, MINUSCA would have to respect and ensure respect for IHL by its armed forces and other persons or groups de facto acting on its instructions, or under its direction or control (Rule 139) and train its armed forces in IHL (Rule 142). These obligations seem particularly relevant in light of the problems often posed by issues of legal interoperability in the context of multinational operations. Seeing the mission as one single entity for the sake of IHL would allow deeming it responsible for the training and subsequent conduct of its peacekeepers independently of – but not in contradiction with – the repartition of command and control between the international organisation and troop contributing countries. Concretely, this would mean that, in addition to the obligations of each troop contributing country, the UN should take the responsibility of substantively training the contingent and making sure it respects and applies the same rules of IHL as whole, instead of a patchwork of obligations deriving from the law applicable to single member states. Arguably, such a scenario does not differ too much from what already happens in practice through the joint training of peacekeeping missions before deployment, and the respect of a basic, uniform set of IHL rules is the aim of the Secretary General’s Bulletin. However, the idea that those obligations might directly derive from the status of party to the conflict under IHL sounds very unlikely to be accepted for the consequences it might entail when it comes to issues of attribution and allocation of responsibility for wrongdoings between the member states and the international organisation. For all that, it seems undeniable that acting under a unified legal framework has the potential for being a game changer at least in terms of prevention of violations of IHL.

No less important consequences derive from the potential role of MINUSCA as a party to the conflict under international criminal law. As aptly noted by Labuda, although the UN keeps denying the existence of an armed conflict between the mission and the armed groups in CAR, it at the same time reiterates that any attack against peacekeepers may amount to a war crime. Leaving aside the contradictory nature of statements of this kind, what is interesting is that incidents such as the one of 8 April are likely to fall under the jurisdiction of the recently established Special Criminal Court for CAR. Further judicial pronouncement is needed to shed some light on the features of the crime of attacking peacekeepers in a situation of armed conflict. The premise that because of the status of a peacekeeping mission as party to the conflict members of its military branch could be targeted as forming part of the armed forces thereof has never, so far, been accepted in the case law of international criminal tribunals. Will the Special Court choose to do so, indirectly saying the unsaid? We will need to wait and see if the whispered possibility of considering a UN mission as a party to the conflict will be finally made explicit in such a way.

The Coming Attack on Syria Will Be Unlawful

by Kevin Jon Heller

You go to war with the President you have, not the President you wish you had.

We should keep that basic truth in mind as the US inches ever closer to war with Syria — and potentially with Russia, a far more terrifying possibility. Donald Trump does not care about civilians in Syria. He does not care about containing the spread of chemical or biological weapons. If he attacks Syria, it will be for one and only one reason: to distract attention from his collusion with Russia, his obstruction of justice, and his corruption. As Trump well knows, Americans love nothing more than high-def images of American bombs falling from the skies. No matter how many innocent civilians die (especially brown ones), an attack on Syria will give his approval ratings a healthy boost. That is all the motivation he needs.

That Trump will act with base motives does not mean, however, that an attack on Syria would be unlawful. Illegality has to be demonstrated, not assumed.

So let’s start with some basic principles. Syria is a sovereign state. Russia is using force on Syrian territory with the consent of the Syrian government. The US is not. To justify its use of force in Syria, therefore, the US would have to be acting in self-defence. If it was not acting in self-defence, it would be violating the jus cogens prohibition of the use of force that is enshrined in Art. 2(4) of the UN Charter.

With regard to its use of force in Syria against ISIS and other terrorist groups, the US at least has a plausible claim to individual and collective self-defence: the “unwilling or unable” doctrine. Readers know that I do not believe that “unwilling or unable” reflects customary international law. (For the most recent scholarly rejection of that idea, by Brunee & Toope, see here.) But the argument is not a frivolous one.

An attack directed at Syria itself, however, would be patently unlawful. Syria has never attacked US forces or interests. By contrast, the US has attacked Syria: in 2017, when it fired 59 cruise missiles at a government airfield in Shayrat; and in 2018, when it killed approximately 100 members of a pro-Assad militia who attacked a Syrian Democratic Forces headquarters. The US offered no legal justification whatsoever for the 2017 attack, and it claimed that the attack on the militia was “self-defence” — as if collective self-defence somehow permitted the US to come to the aid of a rebel group.

But that is the past. More importantly, there is no evidence — literally none — that Syria has any intention of attacking US forces. Not in the near future or in any future. If the US attacks Syria, therefore, it would not be acting in self-defence. Its attack would violate the jus cogens prohibition of the use of force. It would be, to use the accurate but loaded term, the aggressor.

And that would, of course, have two very important consequences — consequences you will not see discussed in the American media if and when the US attack begins. To begin with, Syria would have every right to use force to defend itself. It could shoot down American fighter planes. It could kill American soldiers. The only limitations on Syria’s right of self-defence would be the usual ones: necessity and proportionality.

Even more importantly, Russia would also be legally entitled to use force against the US. The right of collective self-defence is guaranteed by Art. 51 of the UN Charter and by customary international law. Just as the US invoked collective self-defence to justify attacking North Vietnam at South Vietnam’s request, Russia could invoke collective self-defence to justify attacking the US at Syria’s request. What is sauce for the American goose is sauce for the Russian gander. This is the most frightening aspect of Trump’s madness: although the Syrian military is capable of doing far more damage to American forces than Iraq’s or Libya’s militaries ever were, Russia’s military is one of the most powerful and technologically-sophisticated in the world. A hot war between Russia and the US could be literally catastrophic.

None of this jus ad bellum analysis should be remotely controversial — at least not to those who don’t believe the US has the God-given right to use extraterritorial force wherever and whenever it pleases. All of the conclusions above derive from a straightforward application of black-letter rules concerning the use of force.

That said, in recent days we have seen a number of scholarly attempts to justify Trump’s coming attack on Syria. I want to focus on one such attempt here, by my friend (and retired Maj. Gen.) Charlie Dunlap at Lawfire. Dunlap offers two potential justifications for attacking Syria: (1) self-defence; and (2) unilateral humanitarian intervention. Neither justification works.

With regard to self-defence, Charlie says the following with regard to Syria’s chemical and biological weapons:

Today, there are considerably more U.S. troops in Syria – perhaps as many as 2,000  – well within range of a number of Syrian weapons’ delivery systems.  Accordingly, it is not unreasonable to conclude that these uniquely dangerous weapons of mass destruction require an aggressive response.

Even if we assume that US troops are in Syria lawfully — a big if, given that it requires accepting the “unwilling or unable” doctrine — this argument denudes Art. 51’s armed attack requirement of all meaning. As noted above, Syria has neither attacked US troops nor threatened to do so. The mere possibility of attack — involving the mere possibility of that attack involving chemical or biological weapons — cannot justify an armed “response” by the US. To argue otherwise is to embrace preventive self-defence on steroids — going beyond even the US’s rationale for attacking the shadowy Khorosan group, where the US spokesman openly acknowledged, with regard to what armed attack the US was supposedly trying to prevent, that “I don’t know that we can pin that down to a day or month or week or six months.” At least terrorists who were possibly associated with the Khorasan group had previously attacked US interests. With regard to Syria, there is not even one previous attack to invoke.

Charlie’s invocation of unilateral humanitarian intervention (UHI) is no more persuasive. Here is what he says:

I also contended that Harold Koh’s 2013 argument about humanitarian intervention in certain narrow circumstances was supportive of a separate legal rationale for the 2017 strikes. I think the reaction of the international community to last year’s strikes is indicative of a growing consensus supporting limited interventions in select situations much as Professor Koh conceptualized, at least in the case of a clear violation of international law.

I have previously explained — in response to Harold Koh — why there is no plausible argument for the legality of UHI. The same critique applies here. I would just add that the international reaction to the 2017 attack on the airfield at Shayrat does not help the argument, for one simple reason: the US never invoked UHI as a justification for the attack. Because it did not, states were under no obligation to denounce UHI after the attack took place — as they have repeatedly done in the face of attacks (such as Kosovo) where one or two states did invoke the doctrine. What I said a few days ago regarding Israel’s 2007 Al-Kibar attack applies no less to the 2017 Shayrat attack: had the US claimed that the attack was legal UHI, the international response would have assuredly been different.

The conclusion above thus remains sound: if the US attacks Syria, it will be the aggressor and both Syria and Russia will have the right to use force against the US in self-defence.

Let me end with what I hope is obvious: this is a legal analysis, full stop. It is not a normative argument. I loathe Assad, a murderous dictator who deserves to spend the rest of his life in prison for his innumerable crimes. I understand the desire to something — anything — to prevent further violence against innocent Syrian civilians. I don’t believe, as I said in my response to Koh, that attacking Syria would contribute to that goal — particularly if it was limited to aerial warfare, as it almost certainly would be. But even if it would, the prohibition of the use of force still matters. We should not cloak acts that categorically violate that prohibition in a patina of legal respectability.

Why Al-Kibar Does Not Contribute to Pre-Emptive Self-Defence

by Kevin Jon Heller

Elena Chachko has an interesting post at Lawfare discussing Israel’s recent public acknowledgement of what the international community has long known: that it was responsible for the 2007 attack on the Al-Kibar nuclear reactor in Syria. Although I agree with much of Chachko’s post, I would take issue with what she says about how the failure of states to condemn the attack at the time and to react to Israel’s new acknowledgment of its responsibility might affect the customary status of pre-emptive self-defence:

It would be unwise to jump to the conclusion that the many states that did not protest the Al-Kibar strike instead acquiesced to it, thus indicating their support for a right to exercise preemptive self-defense to eliminate nuclear threats. Still, one could argue that the clandestine and military nature of the Al-Kibar reactor, its proximity to Israel, and the hostility between Israel and Syria rendered Israel’s “last opportunity to stop an existential threat” argument more plausible now than when it invoked it to justify the destruction of Osirak—a distant, declared, reactor built with French assistance. Under this reasoning, the relatively muted international response could suggest that members of the international community might be willing to entertain preemptive self-defense under such extreme circumstances.

In sum, the question of whether international law now recognizes a right to preemptive self-defense against nuclear threats remains highly contested. But the evolution of the international position from “Opera” to “Outside the Box,” even after Israel acknowledged its role in the latter, is telling. Both scholars and politicians will likely take this evolution into account in discerning state practice on this question going forward.

With respect to Chachko, this argument is problematic. As she acknowledges, Israel has still not articulated any legal justification for the Al-Kibar attack, much less claimed that it represented a legal act of pre-emptive self-defence:

It remains true, however, that we do not know what Israel’s legal position actually was. Israel has yet to provide a public legal justification for the Al-Kibar operation under jus ad bellum. The newly released interviews with members of Israel’s leadership at the time, including then-prime minister Ehud Olmert, did not explicitly address the legal aspects of the decision to carry out the strike. The only  I found in the reports about the strike to the role of lawyers in vetting the operation was a brief mention of then-attorney general Meni Mazuz’s involvement in drafting the government decision that authorized the operation.

Because Israel has not provided a legal justification for the attack, the attack cannot help establish the legality of pre-emptive self-defence. As the ICJ made clear in the Nicaragua case, practice unaccompanied by opinio juris does not contribute to modifying customary rules concerning the use of force (para. 207; emphasis mine):

The Court has no jurisdiction to rule upon the conformity with international law of any conduct of States not parties to the present dispute, or of conduct of the Parties unconnected with the dispute; nor has it authority to ascribe to States legal views which they do not themselves advance. The significance for the Court of cases of State conduct prima facie inconsistent with the principle of non-intervention lies in the nature of the ground offered as justification. Reliance by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of customary international law. In fact however the Court finds that States have not justified their conduct by reference to a new right of intervention or a new exception to the principle of its prohibition. The United States authorities have on some occasions clearly stated their grounds for intervening in the affairs of a foreign State for reasons connected with, for example, the domestic policies of that country, its ideology, the level of its armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing international law.

For similar reasons, the “relatively muted” response by states to the Al-Kibar attack also cannot help establish the legality of pre-emptive self-defence. It is true that silence in the face of practice can count as acquiescence to a proposed customary rule. But that is only the case when — to quote the ILC’s new Draft Conclusion 3 regarding the formation of custom — “the circumstances called for some reaction.” No reaction is required when a state does not provide a legal justification for its actions. In 2007, Israel did not even acknowledge that it was responsible for the attack. And even now, in 2018, Israel is not claiming that it acted in self-defence. So it would not simply be “unwise” to read too much into the international community’s response to the Al-Kibar attack. It would be legally inappropriate to do so.

I also disagree with Chachko’s claim that silence “could suggest that members of the international community might be willing to entertain preemptive self-defense under such extreme circumstances.” I think it actually suggests the opposite: it is extremely likely that states — particularly those in the Non-Aligned Movement (NAM) — remained silent about the Al-Kibar attack precisely because Israel neither acknowledged that it was responsible for the attack nor claimed that the attack was a legitimate act of pre-emptive self-defence. As Chachko rightly points out — echoing the Spector/Cohen blog post  she links to — there were sound political and strategic reasons for states, particularly in the Middle East, not to get too worked up about the 2007 attack. In the absence of Israel claiming self-defence, NAM’s silence was legally costless. But it is difficult to believe that it would have remained silent in the face of a legal claim that pre-emptive self-defence is lawful. After all, NAM has consistently denounced pre-emptive self-defence as unlawful.

Israel’s acknowledgment that it was responsible for the Al-Kibar attack is politically important. But it has no legal implications whatsoever.

The PTC’s Bizarre Request for Additional Information About Afghanistan

by Kevin Jon Heller

As Patryk Labuda noted earlier today on twitter, the Pre-Trial Chamber (PTC) has ordered the OTP to provide it with additional information concerning the investigation in Afghanistan. Here are the key paragraphs of the order:

3. The Chamber observes that the Prosecutor seeks authorisation to initiate an investigation for crimes committed on the territory of Afghanistan from 1 May 2003 onwards, as well as crimes committed within the context of the situation in other States Parties from 1 July 2002 onwards.2 However, the supporting material provided, particularly in relation to the structure, organisation, and conduct of the Afghan Forces – collectively referred to by the Prosecutor as Afghan National Security Forces or Afghan National Defense and Security Forces (“ANSF”) – mostly falls within the time period 2011 to 2014. Further, little to no information has been provided regarding the structure and organisation of the Islamic State operating in Afghanistan, also refer red to as “Daesh” or “Islamic State Khorasan Province”3. Similarly, the information provided with respect to the structure of the United States of America (“US”) forces falls mainly within the period of 2001-2008, with regard to interrogation policies of the US forces within the period of 2001-2006 and with regard to the conduct of US forces within the period of 2003-2011.

4. The Chamber is of the view that further information is required for the Chamber’s determination under article 15(4) of the Statute. Accordingly, it orders the Prosecutor to submit to the Chamber the following:

a. Any publicly available report from the United Nations Assistance Mission in Afghanistan (“UNAMA”) on the treatment of detainees, apart from the reports from 2011, 2013, 2015 and 2017 already submitted;

b. Any publicly available report from the Afghanistan Independent Human Rights Commission (“AIHRC”) on torture, apart from the report from 2012 already submitted;

c. The United Nations (“UN”) Secretary-General reports to the General Assembly on the topic: “The situation in Afghanistan and its implications for international peace and security”, from the years 2003, 2004, 2010, 2013, 2014, 2015, and 2017;

d. Any publicly available report from the UN Secretary-General to the General Assembly on the topic “Children and armed conflict in Afghanistan”, apart from the report from 2008 already submitted;

e. Further clarification and information, to the extent possible, about the structure and organisation of the Islamic State operating in Afghanistan; and

f. Further clarification and information, to the extent possible, about the structure of the US forces for the time period after 2008; for the interrogation policies of the US forces for the time period after 2006; as well as for the conduct of the US forces for the time period after 2011.

This is actually the second time that the PTC has asked for more information. On 5 December 2017, it ordered the OTP to provide it with “media reports and article 15 communications concerning allegations attributed to special forces of a number of international forces operating in Afghanistan,” as well as as a list of incidents where, in the OTP’s view, “there is a reasonable basis to believe that crimes falling within the jurisdiction of the Court were committed during military operations conducted by international military forces.”

The first request made some sense, given that the PTC generally asked for information either possessed only by the OTP (the communications) or reflecting of the OTP’s internal analysis of the situation in Afghanistan (the list of incidents). The new request, however, is bizarre. To begin with, there is no reason that the PTC could not obtain the information in the first four categories itself, given that it specifically wants the OTP to provide it with “publicly available” information. I know for a fact that the judges have legal officers and access to google. Any reasonably competent researcher could obtain the relevant reports in an hour or so.

A similar criticism could be offered of category five — assuming that the request is not based on the PTC’s belief that the OTP has non-public information about the structure of IS — as well as of the first two requests in category 6. After all, the OTP’s information about interrogation policies comes largely from publicly available sources such as the summary of the Senate Torture Report.

The final request in category 6 — about the conduct of US forces after 2011 — makes some sense, given that the PTC is basically asking the OTP to justify its conclusion that there is a reasonable basis to believe US forces are responsible for mistreating detainees. But I share Patryk’s confusion about why the PTC thinks it needs that information to decide whether to authorize the Afghanistan investigation. Art. 15(4)’s “reasonable basis to proceed” standard is anything but onerous. Such a basis exists, according to Art. 53, as long as the available information (1) “provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed”; (2) admissibility is not an issue; and (3) there are no “substantial reasons to believe that an investigation would not serve the interests of justice.” There is no question that the OTP’s request for authorization satisfies requirements 1 and 3, and it cannot seriously be argued that complementarity — the first aspect of the admissibility requirement — counsels against opening the Afghanistan investigation. As the request itself notes, none of the relevant parties (the Afghan government, the US government, and the armed groups) have have investigated or prosecuted those most responsible for international crimes in Afghanistan.

Which leaves gravity, the other aspect of admissibility. The only plausible interpretation of the PTC’s order is that it does not think it can assess the gravity of the situation in Afghanistan without the requested information. But that makes little sense. Can it be seriously maintained that the collective actions of the Afghan military between 2011 and 2014, the actions of the Taliban and IS since 2003, and the actions of US forces and the CIA between 2003 and 2011 are not sufficiently grave to warrant a proprio motu investigation? I dare anyone to read the OTP’s superbly argued and documented 181-page request for authorization and reach that conclusion. (Especially when Afghanistan is compared to, say, the Burundi investigation, which the PTC had no trouble authorizing.)

To be sure, that does not mean the OTP has provided sufficient information concerning the actions of all of the parties at all of the relevant times. But that is where the final clause of Art. 15(4) comes in (emphasis mine):

 If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

If the OTP brings a case against an individual whose criminal responsibility cannot be properly assessed without additional information of the kind the PTC wants, it can demand that information when the defendant challenges admissibility or the OTP seeks confirmation of charges. There is no reason why the PTC should demand that information now.

I have little doubt that the OTP will quickly comply with the PTC’s order. But there is no legal or evidentiary reason why it should have to. The PTC already has more than enough information at its disposable to authorize the Afghanistan investigation.

A Problematic Take on the Lubanga Trial

by Kevin Jon Heller

Justice in Conflict has a guest post today from a scholar who has written a book about the Lubanga trial. I think the post makes some excellent points about the problems with the trial. But I have serious reservations — acknowledging that I have not read the book — about the author’s take on why the trial did not focus on sexual violence:

Another [serious flaw] was the Chamber’s embargo on sexual violence. The matter of sexual violence loomed large in the trial not by its presence but by its absence. It became the trial’s trademark shame, a conspicuous token of the Chamber’s failure to place the substance of the Ituri province’s tragedy above the Chamber’s perpetual legal jousting. For most of the trial the Chamber did what it could to hear as little as possible about how frequently young women were raped and enslaved.

This is both unfair and mistaken. There is one reason, and one reason only, that sexual violence did not figure more prominently in the trial: Luis Moreno-Ocampo decided not to charge Lubanga with the relevant war crimes or crimes against humanity, choosing instead to focus exclusively on the war crime of conscripting or enlisting child soldiers. Here, for example, is what Patricia Viseur Sellers, a former Legal Advisor for Gender and prosecutor at the ICTY has to say:

Crimes of sexual violence were not charged. Such accusations were certainly within the purview of the Prosecutor. The Prosecutor could have brought charges related to sexual violence. Under the ICC Statute, enslavement, rape, torture, sexual slavery and inhuman acts are defined as crimes against humanity. In the Lubanga case, charges were brought under Article 8, war crimes, and as such could have included charges of torture, rape, sexual slavery or outrages upon personal dignity.

The Trial Chamber noted that they chose not to amend the charges. The Prosecutor could have amended the indictment at anytime prior to trial or even at a reasonable moment during the presentation of the prosecution case [to include charges for crimes of sexual violence]. The Prosecutor has suggested that to do so would have been detrimental to the due process rights of the accused. However, in the event of granting the Prosecutor’s move to amend, the Trial Chamber could have allowed the accused whatever time he needed to prepare his case in light of additional charges. That is a fairly standard procedure at other international tribunals.

Given Moreno-Ocampo’s decision to charge Lubanga solely with conscripting or enlisting child soldiers, the Trial Chamber had no choice but to limit the amount of testimony the prosecution could introduce regarding sexual violence. The Chamber explained why in paras. 629 and 630 of its judgment:

629. Notwithstanding the conclusions set out above, and given the submissions made at various stages of the proceedings, the Chamber needs finally to address how the issue of sexual violence is to be treated in the context of Article 8(2)(e)(vii) of the Statute. It is to be noted that although the prosecution referred to sexual violence in its opening and closing submissions, it has not requested any relevant amendment to the charges. During the trial the legal representatives of victims requested the Chamber to include this conduct in its consideration of the charges, and their joint request led to Decisions on the issue by the Trial Chamber and the Appeals Chamber (viz. whether it was permissible the change the legal characterisation of the facts to include crimes associated with sexual violence). Not only did the prosecution fail to apply to include rape and sexual enslavement at the relevant procedural stages, in essence it opposed this step. It submitted that it would cause unfairness to the accused if he was tried and convicted on this basis.

630. In accordance with the jurisprudence of the Appeals Chamber, the Trial Chamber’s Article 74 Decision shall not exceed the facts and circumstances (i.e. the factual allegations) described in the charges and any amendments to them. The Trial Chamber has earlier pointed out that “[f]actual allegations potentially supporting sexual slavery are simply not referred to at any stage in the Decision on the Confirmation of Charges”.1810 Regardless of whether sexual violence may properly be included within the scope of “using [children under the age of 15] to participate actively in hostilities” as a matter of law,1811 because facts relating to sexual violence were not included in the Decision on the Confirmation of Charges, it would be impermissible for the Chamber to base its Decision pursuant to Article 74(2) on the evidence introduced during the trial that is relevant to this issue.

Moreover, I think the author’s claim that “[t]he matter of sexual violence loomed large in the trial not by its presence but by its absence” is considerably overstated. Not only did sexual violence figure prominently in both the prosecution’s opening and closing arguments, as the Trial Chamber notes in its judgment, there was also considerable testimony concerning sexual violence during trial. The judgment points out in a footnote (n. 54) that 30 different witnesses, 18 female, 12 male, “referred to acts of sexual violence which they either suffered or witnessed.” And it discusses testimony given by one witness, P-0046, at length. Here is just a snippet of P-0046’s testimony:

890. According to the evidence of P-0046, all the girls she met at the demobilisation centres, except for a few who had been protected by certain women in the camps, told the witness that they had been sexually abused, most frequently by their commanders but also by other soldiers. Some fell pregnant, resulting in abortions; and there were instances of multiple abortions. The witness gave evidence that the psychological and physical state of some of these young girls was catastrophic.

891. The youngest victim of this sexual abuse interviewed by P-0046 was 12 years old. The witness stated that some of those who became pregnant were thrown out of the armed group and ended up on the streets of Bunia. Others went to join their relatives, and although they may have felt they remained part of the UPC, the latter failed to provide them with support. It was difficult to reintegrate them into their families because the girls were stigmatised, and significant mediation was necessary. The witness stated that the children provided her with a clear account of systematic sexual violence in the camps.

Should the Lubanga trial have included specific crimes of sexual violence? Absolutely. But the absence of those charges and the (relatively) limited testimony concerning sexual violence cannot be attributed to the Trial Chamber. If you are looking for someone to blame — and you should be — blame Luis Moreno-Ocampo.

NOTE: I have not addressed the victims’ efforts to add sexual-violence charges in the middle of trial. If you want to blame the Chamber for rejecting that request, fair enough. But I have already explained why I think the Chamber was correct.

A Potentially Serious Problem with the Final Decision Concerning Comoros

by Kevin Jon Heller

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Initial Thoughts on the ICC’s Decision to Investigate Afghanistan

by Kevin Jon Heller

Very significant news out of the ICC today: after a decade-long preliminary examination, the OTP has finally decided to ask the Pre-Trial Chamber to authorize a formal investigation into the situation in Afghanistan. Here is a snippet from Fatou Bensouda’s announcement:

For decades, the people of Afghanistan have endured the scourge of armed conflict.  Following a meticulous preliminary examination of the situation, I have come to the conclusion that all legal criteria required under the Rome Statute to commence an investigation have been met.  In due course, I will file my request for judicial authorisation to open an investigation, submitting that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan.  It will be for the Judges of the Court’s Pre-Trial Chamber, constituted by the Presidency, to decide whether I have satisfied them that the Statute’s legal criteria to authorise opening an investigation are fulfilled.

Given the limited temporal scope of the Court’s jurisdiction, my request for judicial authorisation will focus solely upon war crimes and crimes against humanity allegedly committed since 1 May 2003 on the territory of Afghanistan as well as war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.  The Court has no jurisdiction respecting crimes alleged to have been committed before those cut-off dates.

Assuming the PTC grants the OTP’s request — which is basically a foregone conclusion — Afghanistan will become (following Georgia) the second ICC investigation outside of Africa.

It will be very interesting to see how the US reacts to the announcement. The OTP made it clear in its 2016 preliminary-examination report that it intends to investigate crimes committed by the US military and the CIA:

211. The information available provides a reasonable basis to believe that, in the course of interrogating these detainees, and in conduct supporting those interrogations, members of the US armed forces and the US Central Intelligence Agency (“CIA”) resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape. These acts are punishable under articles 8(2)(c)(i) and (ii) and 8(2)(e)(vi) of the Statute. Specifically:

  • Members of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014. The majority of the abuses are alleged to have occurred in 2003-2004.
  • Members of the CIA appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape on the territory of Afghanistan and other States Parties to the Statute (namely Poland, Romania and Lithuania) between December 2002 and March 2008. The majority of the abuses are alleged to have occurred in 2003-2004.

212. These alleged crimes were not the abuses of a few isolated individuals. Rather, they appear to have been committed as part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees. According to information available, the resort to such interrogation techniques was ultimately put to an end by the authorities concerned, hence the limited time-period during which the crimes allegedly occurred.

213. The Office considers that there is a reasonable basis to believe these alleged crimes were committed in furtherance of a policy or policies aimed at eliciting information through the use of interrogation techniques involving cruel or violent methods which would support US objectives in the conflict in Afghanistan. Likewise, there is a reasonable basis to believe that all the crimes identified herein have a nexus to the Afghanistan conflict.

If the US formally challenges the investigation — a big if, because it would probably see doing so as an acknowledgment of the investigation’s legitimacy — it will no doubt rely on Mike Newton’s argument in the Vanderbilt Journal of Transnational Law that the Status of Forces Agreement (SOFA) between Afghanistan and the United States precludes the ICC from exercising jurisdiction over American soldiers. (The SOFA presumably doesn’t apply to CIA operatives, who are not part of the US armed forces.) Oversimplifying a bit, Mike argues that Afghanistan has no jurisdiction that it can delegate to the ICC, because the SOFA provides that the US retains exclusive jurisdiction over crimes committed by American soldiers. I disagree with the argument, for reasons ably laid out by Roger O’Keefe and Carsten Stahn. But it is a serious argument that deserves serious consideration.

Like Dov Jacobs, I am also intrigued by the OTP’s stated intention to investigate crimes committed by the CIA in Romania, Lithuania, and Poland. There is no jurisdictional problem, because those states are all members of the ICC and the the SOFA that applies to NATO states is based on shared jurisdiction, not exclusive jurisdiction. And I don’t think anything in the Rome Statute prohibits the OTP from defining a situation to include territory of multiple states. But we have definitely never seen a situation like this before.

I doubt that we will see the ICC issue arrest warrants for an American soldier or CIA operative anytime soon. My guess is that the OTP will begin with crimes committed by the Taliban, which will be much easier to investigate and prosecute than American crimes. (If only because Donald Trump might be crazy enough to actually invade The Hague if the Court ever got its hands on an American.) But this is still a momentous — if long overdue — day for the ICC. Opening an investigation that could lead to Americans being prosecuted, even if only in theory, is a remarkable act of bravery for a Court that has proven largely impotent with regard to crimes committed by government officials.

Kudos to Fatou Bensouda and the OTP.

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

by Kevin Jon Heller

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

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

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

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

by Kevin Jon Heller

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Syria War Crimes Accountability Act — Now Revised!

by Kevin Jon Heller

Last month, I blogged about 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.” I praised the bill, but pointed out that Section 7(a) was drafted in such a way that it permitted the US to provide technical assistance to entities investigating international crimes committed by pro-Assad forces and “violent extremist groups,” but did not permit the US to support entities investigating international crimes committed by rebels.

I am delighted to report that Sen. Ben Cardin (D-MD), the Ranking Member of the U.S. Senate Foreign Relations Committee (SFRC), successfully introduced an amendment to the bill at last Thursday’s SFRC’s business meeting that corrects the asymmetry in Section 7(a). The new version reads as follows (emphasis in original):

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 all non-state armed groups fighting in the country, including violent extremist groups in Syria beginning in March 2011…

This is a welcome change, because — as I pointed out in my original post — there is no reason to treat crimes committed by rebels any differently than crimes committed by Assad’s forces or by ISIS.

Kudos to Sen. Cardin! Let’s hope the revised version of the bill passes the full Senate soon.

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.