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Prosecutor v. Al Mahdi: A Positive New Direction for the ICC?

by Marina Lostal

[Marina Lostal is a Lecturer in International Law at The Hague University of Applied Sciences.]

On 27 September 2016, the International Criminal Court (ICC or the Court) entered a conviction and sentence that marked several firsts in the history of the Court. It found the Accused – Ahmad Al Faqi Al Mahdi, guilty of the war crime of intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments (in violation of Article 8(2)(e)(iv)of the Rome Statute). He was sentenced to 9 years of imprisonment. Al-Mahdi’s conviction is not only the first at the ICC arising from a guilty plea, but it is also the first for destruction of cultural heritage. In the latter respect, it raises an important conceptual question: is the adjudication of these crimes contingent on showing anthropocentric harm, or are they independently actionable before the Court?

Al Mahdi was accused of having been involved in the attacks in Timbuktu against nine mausoleums and the door of the mosque of Sidi Yahia during summer of 2012 in the context of the non-international conflict in Mali. Al Mahdi was a member of the Ansar Dine, a militant Islamist group involved in the armed conflict in Mali, and the head of the Hisbah, the body which acted as a form of morality police which mandate included deciding on the fate of the shrines, mosques and antiquities of Timbuktu. This was an important role in light of Timbuktu’s status as a UNESCO World Heritage List site, deemed to be of outstanding universal value for the whole of humanity.

Al Mahdi has received the lowest sentence to date at the ICC. This may be due to his guilty plea, but also to the fact that the attack was directed against property since, according to the Trial Chamber, “even if inherently grave, crimes against property are generally of lesser gravity than crimes against persons”.

Underlying Al Mahdi’s conviction lies a conceptual question going to the essence of the Court’s substantive jurisdiction. During the confirmation of charges hearing, the prosecution consistently emphasized the human impact of Al Mahdi’s crimes saying, for instance, “[w]hat is at stake here is not just walls and stones”. In doing so the prosecution indicated that human suffering is an essential prerequisite for any substantive proceedings before the Court. Indeed, in the words of Fatou Bensouda:

“[T]he Rome Statute prohibits and punishes the most reprehensible criminal acts: Crimes of genocide, crimes against humanity and war crimes. These crimes can be perpetrated in various forms, but they all have one common denominator: They inflict irreparable damage to the human persons in his or her body, mind, soul and identity.


Such an attack against buildings dedicated to religion and historic monuments falls into the category of crimes that destroy the roots of an entire people and profoundly and irremediably affect its social practices and structures. This is precisely why such acts constitute a crime under Article 8(2)(e)(iv) of the Rome Statute.”

It is true that the tangible and intangible dimensions of cultural heritage are, usually, two sides of the same coin. According to the Committee for Economic, Social and Cultural Rights, the right of everyone to “take part in cultural life” enshrined in Article 15(1)(c) of the Covenant on Economic, Social and Cultural Rights is “associated with the use of cultural goods”. Former UN Special Rapporteur on Cultural Rights, Farida Shaheed, was of the view that “access to and enjoyment of cultural heritage as a human right is a necessary and complementary approach to the preservation/safeguard of cultural heritage.” In this line, UNESCO has adopted two treaties emphasizing the immaterial side of cultural heritage; the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions.

However, traditionally, the prohibition of attacking cultural heritage has not been associated with the impact it carries for individuals. In fact, the existence this prohibition predates the movement of human rights altogether. One of its first examples dates back to the Lieber Code of 1863 which declared that “classical works of art, libraries, scientific collections, or precious instruments . . . must be secured against all avoidable injury” (Art. 35). The 1899 Annex to the Hague Convention (II) with Respect to the Laws and Customs of War on Land contained provisions demanding respect for edifices dedicated to religion, art, science and charity, historical monuments, works of art or science without making their application contingent on human suffering (Arts. 27 and 56). Similarly, Article 27 of the 1907 IV Hague Regulations, which represents customary international law and the basis for Article 8(2)(e)(iv) of the Rome Statute, does not incorporate a requirement of human harm. Back in 1907, the concept of human rights still had to wait decades to take hold. Discourses on the intrinsic connection between the tangible and intangible sides of cultural heritage would only appear almost a century later.

There have been subsequent more complete instruments dedicated to the protection of cultural property in armed conflict, such as the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its 1999 Second Protocol. These treaties are founded on the idea that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind”. Yet, none of their articles specifically rely on establishing a link between the offences against cultural heritage (e.g. acts of hostility, military use) and harm caused to human beings, their social structures or religious practices.

There is nothing in the wording of Article 8(2)(e)(iv) (or (b)(ix)) of the Rome Statute nor the elements of crimes that requires demonstrating human harm to prove this crime. To the contrary, the elements are consistent with the historic reading of the provision and require, inter alia, that the perpetrator directed an attack against one or more protected buildings, which did not constitute military objectives; and that s/he intended to direct such attack. As such, suggesting that profoundly affecting a people’s social practices and structures “is precisely why such acts constitute a crime under Article 8(2)(e)(iv) of the Rome Statute” is a legal innovation, which may bear unforeseen consequences.

Insisting on the possible human consequences of attacks against cultural heritage may restrict the applicability of these provisions. For example, the Buddhas of Bamiyan dynamited in 2001 were not in active use as a cultural or religious site; indeed there is no record of Buddhism in Afghanistan after the 14th Century. Granted, this destruction predated the ICC era and it is generally accepted that these acts took place during peacetime. But, what if it happened today in the context of an armed conflict? There are important similarities with the case of Timbuktu: the sites had either tentative or declared world heritage status; their destruction occurred as a consequence of sheer iconoclasm; and, in both cases, the international community reacted with shock and outrage. However, the approach in Al Mahdi where harm to the human persons is paramount would potentially exclude such attacks from the coverage of the Rome Statute provisions on cultural heritage.

The Prosecutor’s declaration that the common denominator of all core Rome Statute crimes is that they inflict irreparable damage to the human persons may have a profound effect on the Court’s future activities. Recently, the prosecution indicated that it wishes to focus on acts harming the environment. Would such acts also require an anthropocentric impact in accordance with the Al Mahdi approach? If so, is there really any independent value in declaring a willingness to address environmental harm, or attacks on cultural heritage, for that matter?

Ultimately, all crimes have some anthropocentric rationale: it is humans who define them, and we inevitably choose to criminalise what we deem important to us. In the case of cultural heritage, it could be its time-capsule quality as a source of knowledge about our past, it could be its beauty, its symbolic relevance, or all of these things combined. In the case of the environment, it may be as simple as the fact that earth is our only home. However, stretching the anthropocentric emphasis in line with the prosecution’s approach in Al Mahdi entails the risk of turning a blind eye to the independent value of objects and entities in and of themselves.

Haiti Cholera Update

by Kristen Boon

Today, on the opening of the GA, and in his final such speech as UN Secretary General Ban Ki-Moon indicated that a compensation package for victims of Cholera is forthcoming. Speaking in French (original here), he expressed regret over the recent peacekeeper sexual abuse scandals and the Cholera epidemic in Haiti, and promised a package of assistance and support for better sanitation and water systems to victims would be forthcoming.

His speech confirms a significant and welcome shift in the UN’s approach to the cholera epidemic in Haiti. Since the outbreak in 2010, the UN steadfastly denied the assertion that a causal connection existed between the cholera outbreak and a UN peacekeeper base wherein blackwater was funneled into one of the main tributaries in Haiti.  The UN also rejected claims for compensation by victims and their families stating, in a now infamous letter, that the claims were “not receivable” under the UN Convention on Privileges and Immunities. For my full assessment of the Cholera Claims and the UN’s response to this and other recent mass torts claims, see my recent article in the Chicago Journal of International Law here.

The first signs of a change in the UN’s approach came about in August, when Deputy Spokesperson Farhan Haq said in an email quoted in the New York Times that “over the past year, the U.N. has become convinced that it needs to do much more regarding its own involvement in the initial outbreak and the suffering of those affected by cholera.” The Times reported he also stated that a “new response will be presented publicly within the next two months, once it has been fully elaborated, agreed with the Haitian authorities and discussed with member states.”

Significantly, this communication was released days before a widely anticipated appeals decision  was  handed down by the Second Circuit.  In this decision, the judges rejected the claimants appeal for compensation from the UN, relying on principles of contract interpretation to uphold the key finding that the “UN’s fulfillment of its Section 29 obligation is not a condition precedent to its Section 2 immunity” under the Convention on Privileges and Immunities of the UN.

There are several factors that might explain the UN’s new response. One is a reputational concern.   The release of a very critical report by Phillip Alston, UN Special Rapporteur on Extreme Poverty and Human Rights in August, concluded: “[that] a new approach is desperately needed.   The starting point is that there should be an apology and acceptance of responsibility in the name of the Secretary-General. Consideration should then be given to constructing a policy package to address the need for compensation to the victims.”  Alston’s report  provides an instructive and poignant account of how the UN has mishandled this claim, while also illustrating how complex mass claims are for the Organization, given shrinking budgets, the sui generis legal position of the UN, and the lack of internal precedents on providing transparent process and remedies.

Another reason for the UN’s reconsideration of its stance clearly involves the upcoming elections for a new UN Secretary General.  Later this fall, Ban Ki Moon will step down, and some believe that he wants to ensure his legacy is not tarred by the perception that the Haiti case was mishandled. Another theory is that it is better for the Organization to address this case within the current SG’s mandate, rather than saddling a new SG with such an albatross.

The key issue at present is what a compensation package for victims would look like.  Alston’s report urges the UN to make use of other precedents for lump sum settlements, such as the 9/11 trust fund, the USA-France agreement to compensate Holocaust victims, and the Canadian Reparations Programme for the Indian Residential School System. He further notes: “it is clear that the United Nations could make use of these various precedents in order to shape an approach to compensation as part of a broader package that would provide justice to the victims and be affordable.”

While full details of the package will be released in October, advocates are hard at work at the UN, attempting to ensure a victim centered approach prevails.  A letter sent to the UN Secretary General yesterday, for example, argues that there are four necessary components of an effective remedy:

“An effective remedy requires: (1) issuing a formal, public apology to the victims of cholera in Haiti, (2) ensuring full funding of the previously announced but largely unfunded cholera elimination plan, (3) committing to providing victims of the epidemic with material compensation in a timely fashion, and (4) implementing a transparent and participatory process.”

What seems clear at this stage is that the UN is not acknowledging any legal responsibility for the introduction of Cholera into Haiti for fear of setting precedent.   Nonetheless, there is an opportunity here for the UN to improve the process of claims settlement, to adhere to its obligation to provide a remedy for damages incurred, and to demonstrate its commitment to the rule of law. Let’s hope the UN does the right thing. If it doesn’t, advocates in the Haiti Cholera litigation noted in a blast email today that they still have three months to appeal to the Supreme Court.


International Law Weekend 2016

by Chris Borgen

International Law Weekend, the annual conference of the American Branch of the International Law Association is fast approaching. See the following notice from ABILA:

International Law Weekend 2016

Registration is now open for International Law Weekend 2016.

International Law Weekend 2016 – the premiere international law event of the Fall season – will be held October 27-29, 2016, in New York City.  The Opening Panel will take place on Thursday evening at the New York City Bar Association.  The Friday and Saturday sessions will be held at Fordham Law School.

You can register for the conference here:

The unifying theme for ILW 2016 is International Law 5.0.

The world is changing at an accelerating rate. From technological advances to environmental transformations, international lawyers are forced to confront emerging forces and new scenarios. Even settled principles of law are no longer settled. These tectonic shifts have been felt throughout the geography of international law. Legal professionals at every level – local, national, regional, and international – must change their practice to meet a changing world. Innovation will become necessary for survival.

ILW 2016 will explore these issues through a collection of engaging and provocative panels. A broad array of both public international law and private international law topics will be offered.

We look forward to seeing you at ILW 2016.

By the way, as a Co-rapporteur for the ILA’s Committee on Recognition/Non-Recognition in International Law, I will be on the panel Recognition and Non-Recognition of States and Governments: Current Issues in U.S. Practice on Friday, October 28 at 4:45 pm, along with my Opinio Juris colleague Peggy McGuinness and Brad Roth, both of whom are committee members, and Wladyslaw Czaplinski, the committee’s chairperson. Here’s the panel description:

For over five years the International Law Association’s Committee on Recognition and Non-Recognition has studied how states do or do not recognize other regimes as states and governments. This panel will bring together members from the ILA Committee to discuss the findings of their reports, with a particular focus on emerging issues in U.S. practice, including responses to secessions and unilateral declarations of independence after Kosovo; the problem of two or more regimes claiming to be the government of a single state, and the U.S. domestic effects of non-recognition.
I hope to see you there!

Sixth Annual Junior Faculty Forum for International Law

by Kevin Jon Heller


Earlier today, Dino Kritsiotis (Univ. of Nottingham), Anne Orford (Univ. of Melbourne) and JHH Weiler (NYU) launched the Sixth Annual Junior Faculty Forum for International Law, which will be held at the University of Nottingham in May 2017. All details regarding the Forum procedure and process are available here:

Israel Shows Its Contempt for Academic Freedom

by Kevin Jon Heller

The headline is almost a generic one, applicable to dozens of Israeli actions. I’m using it now specifically in connection with Israel denying entrance to my SOAS colleague Dr. Adam Hanieh, who was scheduled to give a series of lectures at Birzeit University:

Dr. Hanieh, a Senior Lecturer in the Department of Development Studies at the School of Oriental and African Studies at the University of London, was deported back to London on the morning of September 13, 2016. He was held for questioning for 10 hours at Ben Gurion airport, and then taken overnight to a detention centre outside the airport. In addition to being refused entry, Dr. Hanieh was banned from entering the country for ten years.

Dr. Hanieh was scheduled to share his vast knowledge of global and Middle East political economy with students in the Ph.D. program as well as the university community in a series of lectures scheduled in the coming two weeks. Hanieh is an accomplished scholar, the author of Lineages of Revolt: Issues of Contemporary Capitalism in the Middle East (Haymarket Books, 2013) and Capitalism and Class in the Gulf Arab States (Palgrave Macmillan, 2011), as well as numerous academic articles.

This act of denial of entry and deportation by the Israeli state and its agencies is part of a systematic policy of denial of entry to international academics, professionals and activists intending to visit Palestine. This policy represents an attack on Palestinian academic freedom, and is routinely practiced at the two entry points, the airport in Tel Aviv and the Jordan valley crossing from Jordan.

Israel is truly the Donald Trump of repressive states — unable to tolerate any criticism that doesn’t stay within the bounds of what it considers “legitimate.” Confident states address critics. Israel prefers to harass and silence them.

Business as usual in the Middle East’s supposed great democracy. Keep Hanieh’s treatment in mind the next time Israel complains about mean BDS-ers “silencing” (ie, protesting) Israeli academics.

Ukraine’s UNCLOS Arbitration Claim Against Russia May Depend Upon Philippines-China Precedent

by Julian Ku

After months (or even years) of threats, Ukraine finally filed an arbitration claim against Russia under Annex VII of the UN Convention of the Law of the Sea.  According to this statement from the Ukrainian Ministry of Foreign of Affairs, the claim will focus on Russia’s actions in the maritime zones bordering Crimea.

Since the Russian Federation’s illegal acts of aggression in Crimea, Russia has usurped and interfered with Ukraine’s maritime rights in these zones.  Ukraine seeks to end the Russian Federation’s violations of UNCLOS and vindicate Ukraine’s rights in the Black Sea, Sea of Azov, and Kerch Strait, including Ukraine’s rights to the natural resources offshore Crimea which belong to the Ukrainian people.

I discussed Ukraine’s claim back in February here, as well as Russia’s likely response.  I can’t find a copy of the Ukrainian statement of claim online, but the MFA description sounds like it will be pretty similar to the approach pioneered by the Philippines in its claim against China.  Ukraine will seek to avoid Russia’s Article 298 declaration excluding jurisdiction relating to sea boundary delimitations by not asking the tribunal to rule on sea boundaries. Ukraine will not seek to have the arbitral tribunal declare that the annexation of Crimea is illegal. Rather, the focus will be on specific actions Russia has taken in the Crimea maritime zones, which Ukraine is going to assume is part of Ukraine.

It will be interesting to see if Russia responds at all to this arbitration, or whether they follow China’s example and simply boycott the arbitration process completely.  I am not sure Russia’s jurisdictional defense is as strong as China’s (which lost anyway), so I am betting Russia simply declares it will not even show up, while loudly declaiming the legality of their actions.  Stay tuned.


The Guardian’s Remarkable Lack of Concern for Accuracy

by Kevin Jon Heller

I love the Guardian. It’s generally a great paper. But its unwillingness to correct even the most basic mistakes constantly amazes me. In an otherwise interesting article about the ICC and environmental crimes, John Vidal and Owen Bowcott — the Guardian‘s environment editor and legal affairs correspondent, respectively — say this (emphasis mine):

The ICC can take action if the crime happens in any of the 139 countries that have signed up to the Rome Statute, if the perpetrator originates from one of these countries, or if the UN security council refers a case to it. Crimes must have taken place after the Rome statue came into force on 1 July 2002.

This is just wrong. Unequivocally wrong. 139 states have signed the Rome Statute, but only 124 have ratified or acceded to it. The ICC has territorial and active-nationality jurisdiction only over the latter.

I tweeted the correction to John Vidal. He’s ignored it — for reasons that are beyond me, given that it would take a web editor 10 seconds to correct. But perhaps Owen Bowcott is to blame: a few years ago he not only refused to correct his blatant mistake concerning the ICTY’s holding in Perisic regarding specific direction, he repeated his mistake in a later article on Charles Taylor.

New Essay: What Is an International Crime? (A Revisionist History)

by Kevin Jon Heller

I have posted the essay on SSRN. Here is the abstract:

The question “what is an international crime?” has two aspects. First, it asks us to identify which acts qualify as international crimes. Second, and more fundamentally, it asks us to identify what is distinctive about an international crime – what makes an international crime different from a transnational crime or an ordinary domestic crime.

Considerable disagreement exists concerning the first issue, particularly with regard to whether torture and terrorism should be considered international crimes. But nearly all states, international tribunals, and ICL scholars take the same position concerning the second issue: an act qualifies as an international crime if – and only if – that act is universally criminal under international law. The international-law aspect of the definition distinguishes an international crime from a domestic crime: although some acts that qualify as domestic crimes are universally criminal – murder, for example – their universality derives not from international law, but from the fact that every state in the world has independently decided to criminalize them. The universality aspect of the definition, in turn, distinguishes an international crime from a transnational crime: although a transnational crime such as drug trafficking involves an act that international law deems criminal through a suppression convention, international law does not deem the prohibited act universally criminal, because a suppression convention does not bind states that decline to ratify it.

This definition of an international crime, however, leads to an obvious question: how exactly does an act become universally criminal under international law? Two very different answers are possible – and the goal of this article is to adjudicate between them. The first answer, what I call the “direct criminalization thesis” (DCT), is that certain acts are universally criminal because they are directly criminalized by international law itself, regardless of whether states criminalize them. Nearly every modern ICL scholar takes this position, as does the ILC.

The second answer, what I call the “national criminalization thesis” (NCT), rejects the idea that international law bypasses domestic law by directly criminalizing particular acts. According to the NCT, certain acts are universally criminal under international law – and thus qualify as true international crimes – because international law obligates every state in the world to criminalize and prosecute them. No modern ICL scholar has taken this approach, although intimations of it date back to Grotius.

Which thesis is correct? This article argues that it depends on whether we adopt a naturalist or positivist approach to international law. Although every international criminal tribunal has insisted that international crimes are positivist, not naturalist, phenomena, no extant theory of positivism – not even so-called “instant custom” – is capable of justifying the idea that certain acts are directly criminalized by international law. On the contrary: if we take positivism seriously, the NCT provides the only coherent explanation of how international law can deem certain acts to be universally criminal. Maintaining fidelity to the DCT, therefore, requires rejecting positivism in favour of naturalism – with all of naturalism’s inherent limitations.

I have given a number of talks on this topic over the past couple of years, and my positivist critique of direct criminalisation has always proved controversial. The argument in the essay has evolved substantially, but I doubt it will be any more popular. I still continue to be surprised that, with the exception of a somewhat skeptical Roger O’Keefe, no scholar and no court has ever attempted to provide a comprehensive defence of the idea that certain acts (international crimes) are directly criminalised by international law. The idea is simply taken for granted based on a single statement in the IMT judgment and on the work of the International Law Commission. Indeed, as I try to show, direct criminalisation seems to be little more than an article of faith — a naturalist artifact that has proven very useful for the ICL project, which is predicated on the superiority of international law over domestic law. Indeed, my suspicion, merely noted in the essay, is that ICL is inherently naturalist, at least in the form that has the kind of sovereignty-limiting muscle its acolytes believe it should have.

The essay is very long — 30,000 words, nearly 400 footnotes. I’ve submitted it for consideration by AJIL, but I am sure I will revise it substantially before it is ultimately published there or somewhere else. So comments and criticisms are, as always, most welcome.

Protection of Civilians Symposium: A Multiplicity of Legal Frameworks and Practical Challenges

by Ralph Mamiya

[Ralph Mamiya is team leader for the Protection of Civilians Team in the UN Department of Peacekeeping Operations but writes here in a purely personal capacity, and the views expressed do not represent official positions of his Department or the United Nations. This post is the concluding post of the Protection of Civilians Symposium.]

This week’s symposium on the protection of civilians highlighted the range of legal and practical issues facing UN peacekeepers. Featuring posts from two contributors to the new volume, Protection of Civilians from Oxford University Press, former Senior UN Legal Officer Mona Khalil and University of Ulster law professor Siobhan Wills, as well as responses from distinguished colleagues Professor Ray Murphy, Legal Counsel Marten Zwanenburg and Professor Kjetil Mujezinović Larsen, the symposium has covered both very familiar ground for me and issues that I rarely have the opportunity to wrestle with.

Taken together, Mona’s and Siobhan’s discussions of peacekeepers’ authority and responsibility to use that authority to use force to protect civilians highlight the complexity of the issue. As Marten notes, we can read Mona as putting forward a strong but narrow concept of the protection of civilians mandate, rooted firmly in Security Council resolutions and Chapter VII of the UN Charter. The simplicity of this argument is its strength: the Council provides a strategic directive to protect (not merely an authorization), and this directive creates some form of responsibility. The challenge of this argument is, as those who deal regularly with UN bodies know, that determining the content and intent of Council resolutions is no simple matter, particularly in an era of political divisions in the Council. The “protection mandate” itself is often brief, providing a general direction with little detail. Generating meaningful positive obligations from such basic material is supremely difficult and gives rise, in part, to many of the practical peacekeeping challenges that Mona points out.

Professor Wills, on the other hand, searches beyond the mandate itself for sources of an obligation to protect that are, perhaps, more susceptible to legal analysis, and, also perhaps, more binding. She returns, however, to the UN’s own Human Rights Up Front  initiative, which she interprets as a potential acknowledgement by the UN of its own protection obligation. Whether this is a stronger or weaker foundation than Mona’s implicit presumption that peacekeeping mandates create a responsibility to act is somewhat uncertain in my mind (particularly as elections for the next Secretary-General are upon us). Her approach to filling in the content of the UNPKO’s responsibility to protect, however, seems a practical, procedural approach.

Professor Murphy takes up Siobhan’s appeal to the UN’s own commitment to human rights norms and raises her, proposing a Secretary-General’s bulletin on the application of human rights law to peacekeepers, analogous to the Secretary-General’s bulletin on international humanitarian law. The IHL purist, and the IHRL purist, may not give a great deal of weight to what the Secretary-General thinks about the application of international law to blue-helmeted troops, but such bulletins can be highly influential for the legal and policy architecture of peacekeeping and, ultimately, the way mandates are implemented.

Professor Larsen also follows Professor Wills, but in the direction of “hard law,” looking to treaty law as potential sources for an obligation to protect with regard to de-mining. This is a particularly interesting area. Professor Larsen’s discussion highlights not only how important protection issues are becoming to militaries around the world (not just UN peacekeepers) and further clarifies, in case there was any doubt, that protecting civilians is not only a matter of using force. The obligation that he argues for echoes the human rights-based norms that Professor Murphy raised.

Marten, in addition to providing wonderful summaries of Mona’s and Siobhan’s chapters in the book (going beyond just their posts), raises two points that I find particularly fascinating. First, with regard to the accountability of peacekeepers: despite the importance of UN privileges and immunities for so much of the UN’s work, if the international public perceives those privileges as being abused they may be whittled away. Second, with regard to Mona’s very interesting discussion of consent: the legal concept of consent and what host states permit missions to do at a practical level, particularly when it involves supporting or substituting for state functions (such as protection).

There is a common refrain that protecting civilians is simple in concept but difficult in practice. In one sense this is true—we tend to agree that protecting civilians is a good thing but we, as the international community, seem to disappoint ourselves on a regular basis—but in another sense simplifies what is a complex issue. One thing that I hope that this week’s symposium has highlighted is that practical challenges, and these are legion, are often tied to legal questions that we are still struggling to answer.

Many thanks to the distinguished panelists for contributing, and to Opinio Juris for hosting this symposium for Protection of Civilians, now available, with a foreword from Deputy Secretary-General Jan Eliasson, and contributions from Jean-Marie Guéhenno, Andrew Clapham, Hugo Slim, Mona Khalil and Siobhan Wills and many others.

High Commissioner for Human Rights Challenges Trump, Wilders

by Kristen Boon

In case you haven’t seen it, The High Commissioner for Human Rights’ recent speech addressed to “populists, demagogues and political fantasists” is well worth reading.   The speech can be viewed here, and a link to the video here.

As Prince Zeid says:  “The proposition of recovering a supposedly perfect past is fiction; its merchants are cheats.  Clever cheats.”


Protection of Civilians Symposium: Protecting Civilians from Explosive Ordnances-An Example of Operational and Legal Challenges

by Kjetil Mujezinovic Larsen

[Kjetil Mujezinović Larsen is Professor of Law, Director of Research, and Deputy Director, at the Norwegian Centre for Human Rights at the University of Oslo. He is the author of «The Human Rights Treaty Obligations of Peacekeepers» (Cambridge, 2012). This post is a part of the Protection of Civilians Symposium.]

By way of introduction, let me state that I agree with Marten’s analysis of the legal obligations of peacekeepers. Therefore, rather than rehearsing the arguments raised by the other contributors to this Symposium, I want to address a concrete issue that illustrates many of the challenges, while also being of great practical importance: The removal of anti-personnel landmines, unexploded cluster munitions, and other explosive ordnances in the area of deployment of a peacekeeping operation. Such explosive ordnances represent a considerable and continuous threat to the civilian population in the affected area, and to protect civilians from this threat clearly falls within the «protection of civilians» paradigm. But does there exist any legal obligation to remove any such ordnances?

There exist a range of international treaty provisions concerning removal and destruction of explosive ordnances. For anti-personnel landmines, Article 5 of the 1997 Mine Ban Treaty requires each State Party to «destroy or ensure the destruction of all anti-personnel mines in mined areas under its jurisdiction or control, as soon as possible»; for cluster munition remnants, Article 4 of the 2008 Cluster Munitions Convention similarly requires States Parties to «clear and destroy, or ensure the clearance and destruction of, cluster munition remnants located in cluster munition contaminated areas under its jurisdiction or control»; and for (other) explosive remnants of war, Article 3 of the 2003 CCW Explosive Remnants of War Protocol (Protocol no. 5) provides a similar rule. All of these provisions also set out requirements to identify and mark contaminated areas, and to take all feasible measures to protect the civilian population against the threat that these ordnances represent.

In 2006, Norwegian media reported allegations that Norwegian military personnel who were involved with removing and destroying anti-personnel mines in the American-led operation “Enduring Freedom” in Afghanistan had omitted removing mines in order to protect American soldiers against attacks. It was further alleged that Afghan civilians were killed by these mines. This was not a United Nations peacekeeping operation, and the allegations were most vehemently denied by Norwegian authorities. But even without considering the veracity of the allegations or the validity of drawing an analogy to peacekeeping operations, one may ask: If a Troop Contributing Nation in this manner omits removing explosive ordnances in an area under its control, and civilians are killed or injured because of the omission, has there then been committed an internationally wrongful act? Has any de jure obligation been violated, and, if so, by whom? Can anybody be held accountable under international law?

The informed reader will here think about the European Court of Human Rights’ inadmissibility decision in the Behrami case. The case concerned an incident where some children while playing found a number of undetonated cluster bomb units, which had been dropped during the NATO bombardment in 1999. When a cluster bomb unit exploded, one boy was killed and another was seriously injured. It was alleged that UNMIK personnel were aware of the location of the units. The application was brought against concrete Troop Contributing Nations, but the Court declared the application inadmissible because the relevant omission was attributable to the United Nations, which fell outside the Court’s jurisdiction ratione personae. Accordingly, the Court didn’t consider whether the European Convention on Human Rights was applicable, and in any case it wouldn’t have had jurisdiction to consider the other conventions mentioned above.

The International Society for Military Law and the Law of War is presently developing a Manual of the International Law in Peace Operations, where this issue has arisen. After consultations with representatives from the UN Department of Peacekeeping Operations, it has become clear that the United Nations does not accept any legal obligation to remove explosive ordnances in areas within the control of an operation. The UN insists that the primary responsibility for demining and removal of explosive remnants lies with the host State, and it is necessary for the mandate to stipulate it if a peace operation should have any responsibilities for demining and removal of explosive remnants. It is worth noting in that regard that peacekeeping operations are rarely given a mandate to actively remove explosive remnants, but that mandates instead focus on providing assistance to other actors that perform the actual demining. By way of example, UN Security Council resolution 1244 (1999) gave KFOR the responsibility of «supervising demining until the international civil presence can, as appropriate, take over responsibility for this task», while resolution 1990 (2011) mandated UNISFA to «provide … de-mining assistance and technical advice». But if the mandate of an operation doesn’t specify a duty, what then applies? The conventions refer to the responsibility of States Parties, but if the United Nations is the responsible entity, then the conventions don’t apply. The United Nations position is that there doesn’t exist enough evidence to establish as a rule under customary international law that any actor that exercises jurisdiction or control over a contaminated area has an obligation to clear that area.

Even with regard to the duty to make feasible efforts to clear, remove or destroy anti-personnel mines, cluster munition remnants and other explosive remnants in affected areas under their control, the UN position is that any legal obligation to do so must stem either from the mandate or from the treaty obligations of a Troop Contributing Nation. The applicability of these treaty obligations for Troop Contributing Nations is a contentious issue that has not been authoritatively solved, and it may be argued that current operational practice does not support a claim that legal obligations to this effect exist during peace operations. If not, a responsibility to clear, remove or destroy anti-personnel mines, cluster munition remnants and other explosive remnants only applies to the extent that the mandate of the operation states this as a responsibility, and even then it may not qualify as a legal obligation.

Protection of civilians in peace opertions is a multifaceted issue. It is not only about the legal right or obligation to use force to protect civilians, it is much more. In the case of removal of explosive ordnances, the question is whether anyone has the positive obligation to protect the civilian population from threats. It can quite plausibly be argued that the United Nations has no such obligation since it’s not a party to any convention and since the relevant rules don’t qualify as customary international law, and that Troop Contibuting States can’t be held accountable when it participates in a UN peacekeeping operation, even if they would otherwise be bound by their treaty obligations. The legal challenges with regard to protection of civilians in peacekeeping operations remain considerable.

Protection of Civilians Symposium: Some Thoughts on the Use of Force by UN Peacekeeping Operations to Protect Civilians

by Marten Zwanenburg

[Marten Zwanenburg is legal counsel at the Ministry of Foreign Affairs of the Netherlands. The views expressed herein are his own and do not necessarily reflect the views of the ministry of Foreign Affairs of the Netherlands.This post is a part of the Protection of Civilians Symposium.]

In this post, I will focus on Mona’s chapter in “Protection of Civilians”, in which she addresses the issue of the use of force by UN peacekeeping operations for the protection of civilians.

Mona’s main point is that the mandate to use force to protect civilians is broad and deeply founded. However, a number of factors may have an inhibiting effect on the use of force by UN peacekeepers beyond self-defence and for the protection of civilians.

She points to a number of legal considerations that may impede carrying out a PoC mandate. While these undoubtedly play a role, I cannot escape the thought that the main obstacle appears to be unwillingness of TCC to put their troops in harm’s way, as well as the limited capabilities and resources available to many missions.

One of the factors Mona argues contributes to peacekeeping operations not fulfilling their PoC mandate is “complacency regarding the legal consequences of failure to fulfil the mandate.” This refers to the ultimate accountability of the Force Commander for both acts of commission and acts of omission when it comes to the use of force by military contingents under the mandate and ROE. This forms an interesting parallel to the question discussed by Siobhan whether the UN mandate imposes a positive obligation on a peacekeeping operation to protect civilians, In this context, Mona states when discussing self-defence that UN forces have not only the right but also the duty, under Chapter VII of the UN Charter, to use force where and when necessary and appropriate to pre-empt, prevent, deter and/or respond to targeted or systematic attacks on civilians within the limits of their capabilities and deployment. She thus appears to see the mandate as imposing a duty to use force in certain circumstances. This in contrast to Siobhan, who argues that a Chapter VII mandate authorizing use of force to protect civilians does not create an obligation to use force (although it may create an obligation to provide protection).

Another consideration Mona mentions is an inhibition to use force arising from fear of criminal accountability or loss of protected status (under IHL). Personally I wonder whether fear of loss of protected status plays an important role. This would assume that peacekeepers have an expectation that their opponents will act in accordance with IHL and respect their protected status under IHL as long as they do not directly participate in hostilities. I wonder whether they really do have such an expectation, for example vis-a-vis armed groups in the DRC or in Mali. Fear of criminal prosecution on the other hand seems a plausible factor in the minds of peacekeepers, judging from my own experience talking to military personnel. Although she doesn’t say to explicitly, Mona probably has fear of prosecution for the use of force in mind. Interestingly, the more protection of civilians is propagated as an obligation, the more likely that not using force may lead to prosecution. In this context, an interesting development in recent years was the (unsuccessful) attempt by relatives of men killed by the Bosnian Serbs in Srebrenica to have three members of Dutchbat prosecuted for not protecting those men.

A final consideration that Mona refers to is unwillingness to use force due to perceived contravention of the basic principles of peacekeeping. Her argument, with which I agree, is that the interpretation and application of these principles have evolved, to varying degrees, in a similar and corresponding manner as operations have evolved to become increasingly robust and operate in volatile environments. I find the development of a nuanced interpretation of consent particularly interesting in this regard. Traditionally, consent of the parties was seen as a fundamental principle of peacekeeping. As the High Level Independent Panel on Peace Operations stated: “In conflict management settings today, where fighting continues and is not confined to two parties, there may be practical obstacles to obtaining consent beyond that of the government. Clearly the consent of the government is fundamental for the deployment of a mission, and this should be reinforced. Obtaining and maintaining the consent of the other parties remains an important objective of any mission and should be pursued to the extent possible.” Even consent of the government is not always as black-and-white as this statement might suggest, however. Such consent may be equivocal and be manifested only to a limited degree in practice. This is illustrated by the recent initial refusal of the government of South Sudan to accept the deployment of additional UNMISS personnel, even though this increase was already part of a resolution adopted by the UN Security Council.