Archive of posts for category
Non-State Actors

No, the Attack on the USS Cole Did Not Take Place in Armed Conflict

by Kevin Jon Heller

I argued more than three years ago that the US decision to prosecute Abd al-Rahim Abdul al-Nashiri in a military commission was illegitimate, because the attack on the USS Cole did not take place during an armed conflict. (I also pointed out that al-Nashiri was systematically tortured, including through the use of mock executions and waterboarding.) Peter Margulies takes a whack at the contrary position today at Lawfare, and the results aren’t pretty. Here, for example, is what he says about the Tadic test:

Under international law, the existence of a noninternational armed conflict depends on the intensity and duration of violence and the existence of an organized armed group (OAG) responsible for the violence. The OAG criterion is readily met: “core” Al Qaeda ordered the Cole attack and used it as a basis for recruiting more terrorists. The geographic distance between Yemen and Afghanistan is irrelevant given the centrality of Al Qaeda’s planning, which placed Osama bin Laden and Al-Nashiri in the same OAG.

The duration and hostility factors also break against Al-Nashiri. In the MCA, Congress gave military commissions jurisdiction over acts committed before September 11, recognizing that Al Qaeda’s military efforts against the US predated that event. The conduct of the US prior to the Cole bombing buttresses Congress’s finding. In August, 1998, President Clinton responded to the Al Qaeda-planned East African Embassy bombings, which killed over 250 persons, with a wave of Cruise missile strikes in Afghanistan and Sudan. That sounds pretty intense to me, although the intensity seems lost on Al-Nashiri’s advocates.

Margulies gets the NIAC test right, and he is even likely right that al-Nashiri was part of “core” al-Qaeda at the time of the attack on the USS Cole. But his discussion of the duration and intensity factors is deeply flawed. To begin with, as I have pointed out before (numerous times), the existence of a NIAC is a purely objective question, one determined by the facts on the ground, irrespective of the subjective perception of the parties to the hostilities. The MCA’s jurisdictional provisions are thus irrelevant to whether the US was involved in a NIAC with core al-Qaeda when the USS Cole was attacked.

More importantly, it is clear that no such NIAC existed at the time of the attack…

NETmundial, Borders in Cyberspace, and a Duty to Hack

by Duncan Hollis

Last week’s NETmundial conference serves as a reminder of just how much the nature of cyberspace remains (at least theoretically) undetermined.  We still can’t agree on what kind of resource cyberspace “is”:  Is it a global public good as Sir Tim Berners Lee proclaimed (i.e., a res communis) or just a collection of technology subject to sovereignty regulation like so many other resources?  This theoretical divide may help explain the continuing back and forth between multi-stakeholder governance (which includes, but does not privilege, a role for States) versus the multilateral governance project (which most certainly does).  NETmundial may have been a net plus for multi-stakeholder proponents, but I’m much less sanguine that it represents an end to claims that cyberspace can — and should — be regulated primarily by government controls over internet resources (for more on the details of NETmundial and its final statement see Milton Mueller’s take-away here).

My skepticism about how international law will draw borders for cyberspace governance leads me to think about other roles borders can play in cyberspace — that is, using international law to draw lines separating acceptable from unacceptable behavior, permitted conduct from required conduct, etc.  I’ve drafted a new chapter that, in the context of cyber war, examines both the ways we draw law from borders and borders from law in cyberspace.  I critique the status quo on both theoretical and functional grounds, concluding that we should seek to start a new process not just for constructing governance regimes, but normative ones as well.  Consistent with the book’s central focus on cyber war, I proffer a case-study for such an approach with respect to armed conflicts, arguing international humanitarian law should adopt a Duty to Hack.  My idea is that, even though it does so only occasionally now, international law should regularly require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives.  You can download a copy of the paper here on SSRN.

For those looking for more details, here’s the abstract:

Warfare and boundaries have a symbiotic relationship. Whether as its cause or effect, States historically used war to delineate the borders that divided them. Laws and borders have a similar relationship. Sometimes laws are the product of borders as when national boundaries delineate the reach of States’ authorities. But borders may also be the product of law; laws regularly draw lines between permitted and prohibited conduct or bound off required acts from permissible ones. Both logics are on display in debates over international law in cyberspace. Some characterize cyberspace as a unique, self-governing ‘space’ that requires its own borders and the drawing of tailor-made rules therein. For others, cyberspace is merely a technological medium that States can govern via traditional territorial borders with rules drawn ‘by analogy’ from pre-existing legal regimes.

This chapter critiques current formulations drawing law from boundaries and boundaries from law in cyberspace with respect to (a) its governance; (b) the use of force; and (c) international humanitarian law (IHL). In each area, I identify theoretical problems that exist in the absence of any uniform theory for why cyberspace needs boundaries. At the same time, I elaborate functional problems with existing boundary claims – particularly by analogy – in terms of their (i) accuracy, (ii) effectiveness and (iii) completeness. These prevailing difficulties on whether, where, and why borders are needed in cyberspace suggests the time is ripe for re-appraising the landscape.

This chapter seeks to launch such a re-thinking project by proposing a new rule of IHL – a Duty to Hack. The Duty to Hack would require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives. Thus, if a State can achieve the same military objective by bombing a factory or using a cyber-operation to take it off-line temporarily, the Duty to Hack requires that State to pursue the latter course. Although novel, I submit the Duty to Hack more accurately and effectively accounts for IHL’s fundamental principles and cyberspace’s unique attributes than existing efforts to foist legal boundaries upon State cyber-operations by analogy. Moreover, adopting the Duty to Hack could constitute a necessary first step to resolving the larger theoretical and functional challenges currently associated with law’s boundaries in cyberspace.

 

From Intervention to Recognition: Russia, Crimea, and Arguments over Recognizing Secessionist Entities

by Chris Borgen

In a matter of days, we have gone from talking about the illegality of Russia’s military intervention, to issues of the Crimean referendum, to Russia’s recognition of Crimea as a new state. While these events have moved quite rapidly, they are not really surprising: arguments over attempted secessions often shift from the question of the legality of the secession itself (about which, as discussed in a previous post, international law is largely silent; although it is generally understood that secession is not a right), to the question of the legality of the recognition of the secession. That is a subtly different question.

By recognizing Crimea, Russia is attempting to shift the discussion off of the issue of military intervention and also, by its recognition, “create facts on the ground” that will at least help Russia;s own negotiating position, if not lay the groundwork for Russia annexing Crimea (by having a Crimean “sovereign state” ask to join Russia). To assess how Russia is doing this, this post will consider the law of recognition and the following post will consider how Russia has used arguments about recognition in relation to Kosovo and South Ossetia in comparison to what it is doing today regarding Crimea.

For this post, the underlying question is whether Russia’s recognition of Crimea was possibly an illegal act.

First of all, what is “recognition?” There are actually different types of recognition: recognition of statehood, recognition of a government, and recognition of a belligerency, recognition of territorial change. For the moment, we are talking about whether Crimea can and should be recognized as a state. In the days to come, we may be talking about issues of recognizing territorial change, if Russia attempts to annex Crimea.

States tend to view the decision to recognize or not recognize an entity as a state as a political decision, albeit one that exists within an international legal framework. That legal framework is in part the rules of statehood. The standard view in international law is that a state must have (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter relations with other states.

While entities that claim statehood often try to do a quick “check the box” summary of these criteria and claim they have all the requirements of statehood, the actual assessment is meant to be more rigorous than a soundbite. For Crimea, the problems include that its territory is completely contested—this isn’t an issue of where the border between Crimea and Ukraine should be, this is a dispute over the whole of the territory of Crimea. Moreover, whether Crimea has a functional government or the capacity to enter into international relations are both very much in doubt: Crimea as a supposedly independent entity would not exist but for Russian military intervention. The control of Crimean territory seems to be more under the command of the Russian President than the Crimean authorities. If you don’t believe me, ask yourself what would happen if the Crimean “president” said he wanted all roads to Ukraine reopened and the Russian barriers taken down. Would his command be decisive? Or President Putin’s?

These criteria are meant to reflect the nuts and bolts of sovereignty: an ability to stand on your own feet, make decisions for yourself, and undertake international relations. Crimea seems less like a sovereign than a hothouse flower: alive due to extraordinary intervention, surviving due to conditions carefully controlled by others, and with little real say in its destiny.

What does the law of recognition have to say about such a case, when it is doubtful that Crimea even meets the basic requirements of statehood? Can Russia just recognize it anyway?…         (Continue Reading)

Another Terrible Day for the OTP

by Kevin Jon Heller

Readers are no doubt aware that Germain Katanga was convicted by the ICC yesterday. What may be less obvious is that the verdict nevertheless represents the Trial Chamber’s complete rejection of the OTP’s case against Katanga. The OTP alleged that Katanga was responsible as an indirect co-perpetrator for seven counts of war crimes (using children under the age of fifteen to take active part in hostilities, directing an attack against civilians, wilful killing, destruction of property, pillaging, sexual slavery, and rape) and three counts of crimes against humanity (murder, rape, and sexual slavery). The Trial Chamber acquitted Katanga on all of the charges concerning rape, sexual slavery, and the use of child soldiers. And although it convicted him of one crime against humanity (murder) and four war crimes (murder, attacking a civilian population, destruction of property and pillaging), the Trial Chamber rejected the idea that he was responsible for those crimes as an indirect co-perpetrator, choosing to “recharacterize” the facts to support finding him guilty as an accessory under Art. 25(3)(d) of the Rome Statute (contribution to a group crime).

The OTP, in short, failed to prove any of its legal claims — just as it did with regard to Katanga’s co-defendant, Mathieu Ngudjolo, who was acquitted on all charges in 2012. Indeed, had the Trial Chamber not been willing to substitute an uncharged and unconfirmed mode of participation for the charged and confirmed one, Katanga would have simply walked, as well.

(Which is, by the way, exactly what should have happened. The Trial Chamber’s “recharacterization” of the facts in the case, which was motivated solely by the desire to ensure Katanga’s conviction — thereby saving the OTP from itself — was fundamentally inconsistent with Katanga’s right to a fair trial. But that will be the subject of my next post.)

All in all, another terrible day for the OTP.

The Reprieve Drone Strike Communication I — Jurisdiction

by Kevin Jon Heller

Reprieve, the excellent British human-rights organisation, has submitted a communication to the ICC asking it to investigate NATO personnel involved in CIA drone strikes in Pakistan. Here is Reprieve’s press release:

Drone victims are today lodging a complaint with the International Criminal Court (ICC) accusing NATO member states of war crimes over their role in facilitating the US’s covert drone programme in Pakistan.

It has been revealed in recent months that the UK, Germany, Australia, and other NATO partners support US drone strikes through intelligence-sharing. Because all these countries are signatories to the Rome Statute, they fall under The ICC’s jurisdiction and can therefore be investigated for war crimes. Kareem Khan - whose civilian brother and son were killed in a 2009 drone strike – is at The Hague with his lawyers from the human rights charity Reprieve and the Foundation for Fundamental Rights who have filed the complaint on his behalf.

The CIA has launched more than 300 missiles at North Waziristan since its covert drone programme began and it is estimated that between 2004 and 2013, thousands of people have been killed, many of them civilians including children.

The US has immunised itself from legal accountability over drone strikes and the UK has closed its domestic courts to foreign drone victims. In a recent decision, the Court of Appeal in London ruled that it would not opine on the legality of British agents’ involvement in the US drone war in Pakistan, for fear of causing embarrassment to its closest ally.

The communication is a fascinating document to read, and it is quite damning concerning the effects of the CIA’s drone strikes. My interest in the communication, however, focuses on two critical legal issues: (1) whether the ICC would have jurisdiction over NATO personnel involved in the CIA’s strikes; and (2) whether it can be persuasively argued that those personnel have been complicit in the strikes. I’ll discuss the jurisdictional issue in this post and the substantive complicity issue in my next post.

As the communication acknowledges, neither Pakistan (where the drone strikes took place) nor the US (which launched the drone strikes) has ratified the Rome Statute. Reprieve nevertheless asserts that the ICC would have jurisdiction over NATO personnel involved in the drone strikes — particularly individuals from the UK, Germany, and Australia — on two different grounds (para. 7):

The Court’s jurisdiction over the crimes committed as a result of drone strikes in Pakistan arises in two ways. The first is (subjective) territorial jurisdiction on grounds that the attacks were launched from a State Party (e.g. Afghanistan), while the second is nationality (on grounds that there is a reasonable basis for concluding that the nationals of States Parties to the Rome Statute may have participated in crimes under the Statute.

It may seem odd that the communication spends time trying to establish that Art. 12(2)(a) of the Rome Statute, the territorial jurisdiction provision, includes subjective territoriality. Why not just invoke nationality jurisdiction, given that Reprieve is only asking the ICC to investigate “nationals of States Parties”? In fact, the communication’s move is actually quite clever — and necessary.

To see why, consider what Art. 25(3) says, in relevant part (emphasis mine): “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person…” The italicized language is critical, because the communication does not claim that the NATO personnel committed the war crimes themselves. On the contrary, Reprieve views those individuals as accessories to war crimes allegedly committed by CIA drone operators (para. 13; emphasis mine):…

The Cossacks: A Legal Primer

by Chris Borgen

The recent altercation between members of Pussy Riot and Cossack militia that was caught on video is a red flag signalling a broader issue in the Russian Federation: the resurgent power of the Cossacks and their relation to the Russian state, especially to keep politically-disfavored groups in check.

But who are the Cossacks?  A paramilitary organization? A political party? An ethnic group? And what are they doing at the Sochi Olympics?  This post will try to explain a little about who the Cossacks are, their role in Russia today, and the legal implications for human rights, minority rights in particular, and the use of state power.

The word “Cossack” summons for many images of mustachioed horsemen with bearskin hats. But, as one CNN report put it, “the Cossacks have long symbolized rebellion and military might in Western and Southern Russia and Ukraine.” Today’s Cossack organizations provide contracted-for security services for Russian regional governments.  Aleksandr Tkachev, the governor of Russia’s Krasnodar region, in which Sochi is located, has been at the forefront of contracting with the Cossacks (although, as I’ll explain below, this has been supported from the Presidency on down). About 400 Cossacks are being used as security in Sochi. But this is just the tip of the iceberg.

As for the utility of  having Cossacks–a non-state (or perhaps quasi-governmental) entity–provide security services, the official line seems to be that Cossacks will have greater leeway for action. CNN again:

“What you cannot do, a Cossack can,” Krasnodar Gov. Aleksandr Tkachev explained to local police.

His comments sparked an outcry from Sochi natives, minorities and migrants. Analysts say it is not a coincidence that the Cossacks’ revival is taking place as nationalism and xenophobia are on the rise in Russia.

[Emphasis added.]

The Pussy Riot incident in Sochi is simply the most obvious example of a larger trend that could have important implications for the rule of law in Russia and in former Soviet republics. But before looking at the current situation in greater detail, some history and context is needed…

(Continue Reading)

Guest Post: Bartels–Temporal Scope of Application of IHL: When do Non-International Armed Conflicts End? Part 2

by Rogier Bartels

[Rogier Bartels is a Legal Officer (Chambers) at the International Criminal Court and a research-fellow at the Netherlands Defence Academy. The views below are the author’s alone.]

The first part of this post discussed that a non-international armed conflict (NIAC) ends when the NIAC-criteria (a certain level of organisation of the parties groups, and a certain intensity of the armed violence) are no longer both present.

At the ICTY, the various trial chambers seized of cases concerning Kosovo and Macedonia had to consider the lower threshold for the start of (or continued existence of) a NIAC. The Boškoski and Tarculovski Trial Chamber, for example, gave a detailed overview of the indicators used so far and reviewed how the relevant elements of Common Article 3 recognised in Tadić (organisation and intensity; see Tadić TJ, para. 562) are to be understood. Its findings were confirmed by the Appeals Chamber (see Boškoski and Tarculovski AJ, paras 19-24). Certain “factors”, and a number of “indicators” thereof, were identified that need to be taken into account when assessing the organisation and intensity criteria. These factors have since been adopted by the Lubanga Trial Chamber in the first ICC judgment (paras 537-538).

If agreed that a NIAC ends when the criteria of “intensity” and “organisation” no longer exist, using these factors and indicators identified in the case law, could be helpful in determining such an ending. Naturally, not all indicators are of assistance. Most notably, the indicator of the existence of (attempts to broker) ceasefire agreements shows that parties considered that there was an armed conflict took place (at the time of the alleged crimes), but obviously does not answer the question whether the conflict continued or ended after such agreements.

Other indicators cannot easily be applied ‘in reverse’. A reversed examination of “the extent of destruction”, for example, would be difficult, as it is hard to assess whether damage diminishes if only few buildings are left standing or if few potential targets remain. The lack of (new or ongoing) damage may well be due to these circumstances, rather than result from the end of the conflict. Nevertheless, an indicator merely serves to ‘indicate’ the existence of an NIAC, and has to be seen in relation to the other indicators: if few military objects remain and a prolonged period occurs during which no targets are attacked, this may well be a sign that the conflict has ended.

In addition, some indicators could be adapted. Instead of looking at the (type of) weapons used, an indicator could be the effectiveness of a disarmament programme: the type and amount of weapons handed in vis-à-vis the initial number of fighters or the approximate type and number of weapons initially deployed. For the indicator of refugee flows from combat zones, one could look, rather than at the number of civilians fleeing an area, at the number of civilians returning home, i.e. considering their pre-conflict place of residence safe enough to return to. (That is not to say that a conflict could never be considered as ended when refugees and or IDPs do not return to their homes as this may be caused by other factors, such as, a changed ethnic composition of the area concerned, lack of cooperation by the government and/or measures implemented by the victorious party).

When peace agreements, as suggested by Tadić, are considered to be the end of NIACs, the focus appears to be laid on the intensity requirement. The discussion regarding the start of the Syrian NIAC (see here for an overview), however, has highlighted the (greater) importance of the organisational requirement. Between the two NIAC-criteria, organisation is the most relevant for the assessment of the end of such conflicts. The decline in organisation of one or more of the parties to the conflict can result in a security vacuum when the controlling regime (i.e. the state or the rebel force) gives way and the resulting (state) apparatus is not (yet) able to provide for effective security. Also, the opposing party will mainly target the organisational structure of an armed group. Whilst targeting the leadership was relatively uncommon in IACs, it has been the main goal in NIACs. It appears also the most effective way to bring about the end of such a conflict. See, for example, the killing of LTTE leader Prabhakaran in 2009, the effects of air strikes killing commanders of the FARC, and the (drone) attacks by United States on the Al-Qaeda leadership. Furthermore, intensity or ‘protractedness’ is hard to pinpoint on a specific moment, because some time element – despite claims to the contrary (see, e.g., the ICTY’s Delalić et al. TJ, para 184 and Kordić and Cerkez AJ, para. 341) – is still inherent in this requirement. Moreover, small break-away fractions of an armed group could continue to carry out attacks, or sectarian violence could go on after – or perhaps result from – the disappearance of the organisational structure of one or more of the fighting parties. Take, for example, the situation in Libya in the period after the defeat of the Gaddafi regime and the forming of the new government by the rebels.

My submission that NIACs end when the level of violence and/or organisation drops below a certain lower threshold, has consequences for the application of IHL and consequently for the protection afforded by IHL. It may be feared that it would lead to “legal uncertainty and confusion” (compare Gotovina et al TJ, para. 1694). In practice, however, having an end-threshold should not create a gap in protection, hence no uncertainty – or at least no more uncertainty than as to the start of the application of IHL at the beginning of a NIAC. Using the lower threshold for the application of IHL ‘in reverse’ in order to determine the end of a NIAC may actually allow for a smoother transition between the law governing the use of force during armed conflict (conduct of hostilities paradigm) and the law governing force outside situations of armed conflict (law enforcement paradigm). It makes sense to gradually move towards a law enforcement approach in the end stages of a NIAC. When the intensity of the fighting has decreased, and/or organisational structure of concerning groups has broken down, to such an extent that it no longer reaches the lower threshold, persons belonging to a (partly or fully broken down) group, would not be “directly participating in hostilities” in the traditional sense, but rather find themselves in a situation where the opposing party controls the territory they are in. As advocated elsewhere (albeit received with much criticism; see here for an overview), the opposing party should then apply the human rights/law enforcement approach when taking action against these persons. If it is unclear whether or not a situation of armed conflict continues to exist, the attacking party should err on the safe side and apply the least amount of force necessary (i.e. in line with law enforcement type of proportionality). This also follows from a moral as well as practical point of view: if the conflict is ending, what would be the benefit of and why would one want to continue to kill the opponents, rather than to start thinking about a process that would bring a lasting peace after the conflict?

The breakdown of the organisational structure of an armed group (which will, amongst other things, be indicated by the inability to carry out military operations) should result in the cessation of the “continuous combat function” of members of that group, thereby limiting the right to target the persons concerned. For those advocating for the so-called “membership approach”, no problem arises either: an even further breakdown of the group’s organisational structure would result in the concerning persons ceasing to be ‘members’; and thus targetable. After all, there needs to be a group or organisation in order for someone to be a member of it.

To sum up, it is my hypothesis that NIACs do not necessarily end only by virtue of a peace settlement being reached, but rather by the more factual circumstance of the level of “organisation” and “intensity” falling below the threshold set for the application of IHL. To assess when NIACs end, one could resort to using the factors and indicators for determining the lower threshold for the start of such conflicts, as identified by the ICTY in its voluminous case law. However, they are to be applied on a case-by-case basis, as not all of them are adaptable to the specific circumstances in which some conflicts take place.

Guest Post: Bartels–Temporal Scope of Application of IHL: When do Non-International Armed Conflicts End? Part 1

by Rogier Bartels

[Rogier Bartels is a Legal Officer (Chambers) at the International Criminal Court and a research-fellow at the Netherlands Defence Academy. The below post discusses an argument made at a conference organised by the Grotius Centre for International Legal Studies in June 2012, that is expanded on in a chapter in the forthcoming book Jus Post Bellum (edited by Carsten Stahn et al.). The views below are the author’s alone.]

Over the past weeks, several ceasefire and peace agreements were concluded in a number of non-international armed conflict (NIAC) situations: in South-Sudan, the Philippines and Myanmar. The Syrian negotiations in Geneva have only yielded minor success, but those between the Colombian government and its longstanding enemy, the FARC, appear to have been more constructive. Nonetheless, all too often when there are peace talks or even peace agreements in a country, the fighting between the opposing sides does not (immediately) cease (see, e.g., here and here). In this post, I will address the end of temporal scope of the law applicable to the fighting in NIAC, i.e. international humanitarian law (IHL) and when such NIACs can be considered as ended.

Although certain provision of international humanitarian law (IHL), or laws of armed conflict, apply in peace time (e.g., Arts 47 and 53 of GC I) or continue to apply for a certain period after the end of the armed conflict (like Art. 5 of AP II), the application of the vast majority of IHL rules is dependent on the existence of an (international or non-international) armed conflict. Whilst the scope of application included in Common Articles 2 and 3 of the Geneva Conventions of 1949 initially, of course, pertained only to these treaties, it has become accepted over time that said scope governs the application of the whole body of IHL; thus also for the rules contained in, e.g., the weapon treaties and customary IHL. Yet, one of the glaring gaps in IHL concerns its very foundation, namely the question of the definition of ‘armed conflict’. IHL does not provide a clear definition for either type of armed conflict: international armed conflict (IAC) or NIAC. A definition for NIACs was purposely left out of the 1949 Conventions and their Protocols, and it is true that a single definition may not be able to encompass all varieties of contemporary armed conflict. However, without a clear definition, determining when conflicts start is problematic; and it is similarly problematic to determine when they end.

Ever since IHL became applicable to conflicts that are “not of an international character” (i.e. with the inclusion of Common Article 3 in the 1949 Geneva Conventions), there has been much debate on what is to be considered a NIAC, and when the threshold of violence has surpassed a situation of mere internal disturbances, civil unrest or riots. The existence of an armed conflict allows States to take more forceful action, such as the use of lethal force against ‘fighters’ and/or against those directly participating in hostilities. In addition, when called upon to determine whether (war) crimes were committed, courts and tribunals must assess whether in the situations before them, an armed conflict existed – either to satisfy their jurisdictional requirements or to identify the applicable body of law. It is therefore of no surprise there has been extensive legal and academic debate, as well as voluminous case law on what qualifies as a NIAC, and on when the so-called lower threshold for NIAC has been crossed. The debate has almost solely focused on the start of these armed conflicts. In contrast, very little has been written on the temporal application of IHL, or indeed, on the end of these armed conflicts.

Common Article 3 does not refer to an end of its application. Similarly, Additional Protocol II refers to the “end of the armed conflict” (Articles 2(2) and 25 AP II), but does not clarify when this may be. The first, and almost only, authoritative statement hereon was made by the Appeals Chamber of the ICTY in its seminal decision on jurisdiction in Tadić:

that an armed conflict exists whenever there is […] protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities […], in the case of internal conflicts, [until] a peaceful settlement is achieved. (Tadić Jurisdiction Decision, para. 70)

So what is a peaceful settlement? The term is not very specific but suggests that IHL will cease to apply when the parties reach a peace agreement with each other. It is my view that the existence of a peace agreement is too rigid a standard to judge whether a NIAC can be considered to have ended. Moreover, it is submitted here that this approach and is not supported by the IHL.

For both IACs and NIACs, the test whether there is an armed conflict depends on the factual situation, and not on political statements. Political refusal to recognise the existence of a conflict is especially prevalent in cases of NIACs. It is argued therefore that political acts should be equally non-determinative in the test of whether peace has been achieved. As a result, the political act (statement) of agreeing to a peace deal should not be the determinative factor in whether a conflict has ceased. In Sierra Leone, for example, two “Lomé Peace Accords” were signed before the RUF was finally defeated and dissolved a few years later. Consider also the conflict between the Singhalese government of Sri Lanka and the LTTE: a peace agreement was signed between the warring parties in 2002, but the fighting did not cease. It was not until the full-scale military defeat in May 2009 of the LTTE by the government forces, that the armed conflict actually ended. Such a non-international version of debellatio is rare, however. On occasion, NIACs just taper out until they have withered away and no warring parties exist anymore. Often, however, as was the case with the Shining Path in Peru, armed groups continue to exist, but on a smaller scale with less fighting power, thereby forming less of a threat. On the other hand, it is also possible that only part of an armed group becomes a party to the agreement, as was the case with the Interahamwe in Rwanda.

Furthermore, the need for an “effective and final cessation of hostilities” for IACs comports with the fact that such a conflict starts with the first hostile act (involving two States), which initiates the protection given by IHL, namely – as Pictet put it – when the first (protected) person is affected by an attack. However, the threshold for the existence of a NIAC is significantly higher and not all violence reaches this threshold. Equally, at the end of a NIAC, certain violence should be considered to be below the armed conflict level. If a NIAC only starts when organised groups are engaged in fighting of certain intensity, then logically, the armed conflict ends when these two criteria are no longer both present. This would also make clear that the United States’ so-called NIAC against Al-Qaeda cannot be a “perpetual war”.

China’s Crackdown on the Uighurs and the Case of Ilham Tohti

by Chris Borgen

The New York Times reports that  Ilham Tohti, a Uighur economics professor, has been arrested by Chinese authorities for separatism and inciting ethnic hatred.  A number of his students are also seemingly being detained. Tohti is just one person and, perhaps unfortunately for him, his case is emblematic of larger regional tensions in China and Central Asia.

The Uighurs are a Turkic-speaking ethnic group, about 80% of whom live in the southwestern part of the Xianjian Uighur Autonomous Region in Western China.  Xianjiang is a geopolitical crossroads  and is also important for China’s energy policy, with significant oil and natural gas reserves.   Moreover, a Council on Foreign Relations backgrounder on Xianjian and the Uighurs explains that

Xinjiang shares borders with Mongolia, Russia, Kazakhstan, Kyrgyzstan, Tajikistan, Afghanistan, Pakistan, India, and the Tibet Autonomous Region, some of which have minority communities of Uighurs. Because of the Uighurs’ cultural ties to its neighbors, China has been concerned that Central Asian states may back a separatist movement in Xinjiang.

The CFR also gives a précis of the last century:

Since the collapse of the Qing Dynasty in 1912, Xinjiang has enjoyed varying degrees of autonomy. Turkic rebels in Xinjiang declared independence in October 1933 and created the Islamic Republic of East Turkistan (also known as the Republic of Uighuristan or the First East Turkistan Republic). The following year, the Republic of China reabsorbed the region. In 1944, factions within Xinjiang again declared independence, this time under the auspices of the Soviet Union, and created the Second East Turkistan Republic.

In 1949, the Chinese Communist Party took over the territory and declared it a Chinese province. In October 1955, Xinjiang became classified as an “autonomous region” of the People’s Republic of China. The Chinese government in its white paper on Xinjiang says Xinjiang had been an “inseparable part of the unitary multi-ethnic Chinese nation” since the Western Han Dynasty, which ruled from 206 BCE to 24 AD.

And then we come to the story of Ilham Tohti, the economics professor.  The New York Times reports:

A vocal advocate for China’s embattled Uighur minority, Mr. Tohti, 44, was the rare public figure willing to speak to the foreign news media about the Chinese government’s policies in the vast region that borders several Central Asian countries. He was also the target of frequent harassment by the Chinese authorities, especially after he helped establish Uighurbiz.net, a website for news and commentary on Uighur issues.

There has been unrest in China’s west over the past year

(Continue Reading)

Hackers’ Bazaar: the President’s NSA Speech and the Market for Zero-Day Exploits

by Chris Borgen

All Things Considered ran an interview this past Monday with Alex Fowler, the chief privacy officer of Mozilla (developer of the Firefox web browser), stemming from a blog post Fowler had written critiquing President Obama’s speech last week concerning NSA activities. When asked about the “most glaring reform needs” that were not addressed in the President’s speech, Fowler said:

right now, we have a policy approach in Washington which is focused on not closing security holes but actually [on] hoarding information about security backdoors and holes in our public security standards and using those then to exploit them for intelligence needs. In our perspective, and I think certainly those of your listeners – as you think about the news related to Target data breaches and breaches with Snapchat and other common tools that we use every day – that what we really need is to actually focus on securing those communications platforms so that we can rely on them. And that we know that they are essentially protecting the communications that we’re engaged with.

This relates to the market for so-called “zero-day exploits,”  where the U.S. government pays hackers for information about holes in software security that its intelligence and law enforcement agencies can then use for surveillance. (The market for zero-day exploits is described in greater detail in this previous post.) The U.S. also pays the sellers of these exploits to keep the holes secret, not even warning the company that has the security hole, so that the exploit may remain useful to the U.S. government for as long as possible. Unfortunately, this also means it will remain open for criminal hackers who have also discovered the hole.

The injection of U.S. government funds has transformed a formerly loose, reputation-based, market into a lucrative global bazaar with governments driving up prices and the formation of firms with business models based on finding and selling exploits to the U.S. and other governments. Although cash-rich companies like Microsoft are responding by trying to out-bid state actors for information about zero day exploits in their own products, the money in the market has shifted from rewarding security into incentivizing insecurity

(Continue Reading)

Why the Muslim Brotherhood (Wrongly) Believes the ICC Can Investigate

by Kevin Jon Heller

Gidon Shaviv called it. The Muslim Brotherhood does indeed believe that it can accept the ICC’s jurisdiction on an ad hoc basis because it is still the legitimate government of Egypt:

Just how successful the ICC action will be is unclear. Egypt is one of the few countries that have not accepted the ICC’s jurisdiction. However, Mr. Dixon and other members of the legal team said the court can act if it receives a declaration from the government accepting the court’s jurisdiction in a particular case. They argued that Mr. Morsi’s government is the still only legitimate ruler in Egypt and it has issued that declaration to the ICC.

“We hope, and we have good reason to believe, that the court will take this declaration seriously,” said John Dugard, a human rights lawyer from South Africa who is involved with the case and who has also worked with the United Nations.

With respect to Dugard, I think the Brotherhood’s efforts are doomed to fail. Had the Morsi government filed its declaration while it was still in power (as in the Cote d’Ivoire situation), that would have been one thing. But it didn’t — and although there are interesting political questions about the legitimacy of the military-led coup/revolution, I don’t think there is much question that the Brotherhood is no longer the government of Egypt. A number of states have condemned the Egyptian military’s actions (see Wikipedia here for a nice rundown pro and con), but none to my knowledge have refused to recognize the Mansour government. And just as importantly, representatives of the Mansour government have continued to represent Egypt at the UN.

Readers who know more about the recognition of governments after coups/revolutions should feel free to weigh in. But even if I’ve understated the legal strength of the Brotherhood’s position, I still find it inconceivable that the OTP will conclude that it has jurisdiction over the situation in Egypt. At the very least, the OTP will likely do what it did with Palestine’s ad hoc declaration — say that the issue is for the Assembly of States Parties, not the Office of the Prosecutor, to resolve.

Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…

by Chris Borgen

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)