The Sea is Still Cruel – A Mariner’s Perspective on Some Aspects of the Updated ICRC Commentary on the Second Geneva Convention

by Peter Barker

[Lieutenant Commander Peter Barker is a Royal Navy barrister, currently serving as the Associate Director for the Law of Coalition Operations at the United States Naval War College.  The views expressed in this article are personal and do not reflect the position of the United Kingdom government or Armed Forces.]

Technology has changed many aspects of naval warfare and the rate of change shows no sign of abating.  Despite these developments, the physical effects of immersion in the ocean are essentially the same for a shipwrecked sailor in the 21st century as for sailors of previous centuries.  The human body will still cool about 25 times quicker in water than in air.  Survival times in freezing water can be as short as 15 minutes and even in more benign temperatures, life expectancy can be as short as 1 to 6 hours depending on physiological condition.  Exhaustion will quickly set in and the presence of sea spray creates a real risk of secondary drowning.  It is a trite statement that international humanitarian law is concerned with the protection of the vulnerable in armed conflicts, combatants as well as civilians.  The unique dangers of the sea for shipwrecked sailors makes them acutely vulnerable and in need of these protections.

For these reasons, the requirement for parties to a conflict to search for, and collect, the shipwrecked is critical to the protections contained within the Second Geneva Convention.  The obligation is made explicit in article 18, although this is a natural extension of the requirement to respect and protect the shipwrecked in all circumstances contained in article 12.  As stated in the updated ICRC Commentary, article 18(1) is “among the most important provisions in the Second Convention [and]… is paramount in achieving one of the core objectives of the Convention” (para 1617).  These words are uncontroversial and the importance of the general duty to rescue has been highlighted recently in an International Review of the Red Cross article.

Whilst the importance of article 18(1) might be clear, the exact interpretation of this critical provision is ambiguous in two key respects.  Firstly, the requirement to act arises only “at the end of the engagement”.  The need to identify the end of the engagement is unique to the Second Convention.  The equivalent provision for land warfare (article 15 of the First Geneva Convention) includes a requirement to act “at all times”.  Unfortunately for legal certainty, the days of traditional naval battles, the meeting of two fleets and the emergence of a victor, are now consigned to history.  Modern naval warfare occurs across a range of domains, both physical and electronic.  It is possible for a ship to be attacked (and therefore in an engagement) without being immediately aware of the fact.  Similarly, the point at which hostile action ends may be vague and so it may be difficult to assess exactly when the duties contained within article 18(1) are triggered.  The updated ICRC Commentary suggests that this determination requires a “good faith assessment” (para 1655) but precisely what factors are required to be taken into account remains unclear.

Secondly, the Parties are required to take “all possible measures” to search for, and collect, the wounded, shipwrecked and sick.  This phrase seems to place a heavy burden on Parties and the commanding officers of units at sea.  One reading would suggest that this requires Parties to take any action that is not impossible.  The reality of naval conflict is that this interpretation would inevitably require ships and submarines to be placed at considerable risk, a conclusion that would be militarily unacceptable.  Instead, both the ICRC and various States have openly acknowledged that there are limits to this requirement, but the extent of these vary depending on the source.  A full review of this issue is beyond the scope of this post, but a brief overview of various approaches is sufficient to highlight the interpretive problem associated with this phrase.

The UK Manual of the Law of Armed Conflict circumscribes the phrase “all possible measures” by the simple insertion of the words “consistent with their own security”.  This is almost identical to the approach taken by the United States in one part of “The Commander’s Handbook on the Law of Naval Operations” (“consistent with the security of their forces” – para 11.6).  This can be contrasted with another approach adopted within the same document when dealing with reportable violations where it suggests that the caveat to “all possible measures” is “when military interests do permit” (para 6.3).  Different wording is used in the US Department of Defense Law of War Manual (para 7.4.4), where, in line with the original ICRC Commentary of 1960 (page 130), emphasis is placed on the judgment of individual military commanders in assessing what is possible.  Personnel are not expected to “place their lives at undue risk” and a commander of a naval ship “need not increase the risk to his or her vessel from threats”.  The updated ICRC Commentary adopts a different, arguably more stringent standard.  At para 1650, it acknowledges that almost all actions required of commanders under article 18 will require the assumption of some risk to their own forces.  It is only when there is “major risk to its personnel” that the requirement to act is lifted.  It is not necessary to examine this in further detail.  The simple point is that there are a variety of standards adopted when interpreting the phrase “all possible measures”, particularly when deciding on the level of risk to their own forces that commanders are expected to assume when fulfilling their obligations.

This unresolved ambiguity has clear consequences for the shipwrecked sailor whose protection may be undesirably dependent on individual circumstances or the views of the opposing Party.  It also has consequences for naval commanders.  The captain of a ship or submarine, as an agent of the “Party to the conflict” will bear responsibility for ensuring that the provisions of the Convention are adhered to.  Failure to act, leading to the death or serious injury of shipwrecked sailors, may constitute a grave breach of the Convention for the purposes of Article 51.  A full review of the position in international criminal law is unnecessary but it is sufficient to note that the 2017 ICRC Commentary (para 3065) considers that willfully leaving shipwrecked survivors without assistance may amount to the grave breach of willful killing.  The exact circumstances in which this liability would arise are not clear, partly due to the issues surrounding the phrase “all possible measures”.  This is particularly difficult when naval commanders, especially those on submarines, may be making decisions in very short time frames and without access to legal advice.  In these situations, it would be hoped that knowledge of the actions required would be instinctive but this seems impossible given the current state of the law.

For “those in peril on the sea”, article 18 of the Second Geneva Convention is of particular importance, given their acute vulnerability.  For commanders, who are likely to be required to fulfil the Convention obligations in practice, the provisions are frustratingly unclear

The Boundaries of the Battlefield

by Michael W. Lewis

A busy week of grading prevented me from addressing Ken’s May 6 post on battlefield geography along with the May 6 news that the US conducted a drone attack in Yemen any sooner, but there should be an important take away on the boundaries of the battlefield from the bin Laden operation.

An often heard complaint about the US conduct of the “war on terror” is that it treats “the whole world as a battlefield.” Many contend that such a conception of the battlefield, particularly in the context of a NIAC, violates international law. Mary Ellen O’Connell is perhaps most readily identified with the position that if the NIAC threshold is not met within the geographical boundaries of a specific state then the use of the tools of armed conflict on that state’s territory is impermissible, even with that state’s permission. However many others have taken similar positions with regard to the Aulaqi case or other possible uses of US force outside of Afghanistan (see e.g. my January debate with Ben Wizner of the ACLU on the Aulaqi case).

In analyzing the bin Laden operation Kevin expressed his belief that there is currently a NIAC between the US and “original” al Qaeda, a group to which bin Laden clearly belonged. Although there is not sufficient violence taking place within Pakistan to say that there is currently a NIAC occurring on Pakistani territory, that fact did not prohibit the use of armed force in Pakistan when a participant in the NIAC between the US and al Qaeda could be found there. Likewise, if bin Laden were in Yemen, the same outcome would have been reached, the tools of armed conflict could be employed against bin Laden in Yemen (under certain circumstances) because he was a participant in the NIAC with the US.

The normative reason for this conclusion is that any other reading of IHL with respect to the boundaries of the battlefield would essentially turn IHL on its head. One of IHL’s principal goals is to spare the civilian population and members of the military that are hors de combat from the ravages of warfare. To this end it insists on proportionality and military necessity for all attacks, it requires the acceptance of surrender, it ties the availability of the combatants’ privilege to organizational respect for IHL, and it removes civilian immunity from those participating in an armed conflict either temporarily for such time as they directly participate in hostilities (DPH) or more permanently for those who continuously perform a combat function (CCF). Members of al Qaeda are targetable when they are engaged in attacks (DPH), and leadership (like bin Laden) that is consistently engaged in the planning and direction of operations is targetable at all times (CCF). IHL rewards organizations that enforce the laws of war by allowing members of those orgainzations the combatants’ privilege. IHL discourages terrorist organizations like al Qaeda that target civilians and blend in with the civilian population (thereby placing them at greater risk) by denying them the combatants’ privilege and removing civilian immunity from its members.

However, if IHL is read to prohibit the use of the tools of armed conflict outside of certain geographically defined areas it would be conferring a tremendous strategic advantage upon these same terrorist organizations that it disfavors. By limiting the use of the tools of armed conflict to territory on which the threshold of violence for a NIAC is currently occurring, IHL would effectively create sanctuaries for terrorist organizations in any state in which law enforcement is known to be ineffective (like Yemen, Somalia, Sudan and the FATA area of Pakistan). This reading of IHL would thereby cede the initiative in the NIAC between a state actor that abides by IHL and a non-state terrorist organization (which IHL disfavors in every other way because of its conduct during an armed conflict) to the terrorist organization. The disfavored terrorist organization would get to decide when, where and how the war is to be fought because they would be immune from targeting based purely on geography. That cannot be how IHL should be read when considering the boundaries of the battlefield.

This does not mean that IHL does not offer a number of other challenges to strikes in Yemen or elsewhere. Has the NIAC threshold been met just for al Qaeda, or are other organizations such as AQAP properly part of that NIAC? Do the strikes comport with military necessity and proportionality? What sort of positive identification procedures are required before such strikes take place? Is some form of independent post-strike review required? Is host state permission required? If not, (in the self-defense paradigm) has the host state shown itself to be unwilling and/or unable to apprehend the targeted individuals? What is the standard that should be used to make the unwilling/unable determination? All of these are legitimate questions that may call into question some, most or all of the US’ drone strikes outside of Afghanistan (depending upon how you choose to answer them).

But the question of whether IHL provides a geographically-based immunity for participants in a NIAC should be answered in the negative once and for all.

How Should the Conflict in Libya Be Categorized?

by Michael W. Lewis

The UN Security Council’s approval of the no-fly zone over Libya serves to answer the thorniest jus ad bellum questions, but there are also jus in bello questions that need to be answered. Most importantly, what kind of conflict is this?

Before the UN became involved, the conflict was clearly a conflict “not of an international character” (NIAC) between the Libyan government and rebel forces within Libya. That conflict was governed by common article 3 of the Geneva Conventions and Additional Protocol II. Did the UN’s entry into the conflict change this into an international armed conflict (IAC) subject to all of the provisions of the Geneva Conventions and Additional Protocol I (for ratifying nations which include Libya, France, Italy and the UK)? The language of common article 2 of the Geneva Conventions speaks of an armed conflict between “two or more of the High Contracting parties”. Who is employing force in Libya, the UN, NATO or the coalition nations individually? If the answer is the UN or NATO, neither of those groups are “High Contracting parties” to the Geneva Conventions. It should be recalled that Justice Stevens in Hamdan determined that the conflict between the US and al Qaeda was not an IAC because one of the parties to the conflict was not a party to the Geneva Conventions. The same reasoning might be applied here. It is only if the conflict is viewed as being between the allied nations of the US, the UK, France, Italy, etc. and Libya that this conflict would clearly be considered an IAC.

Does the fact that the United States has gone to great lengths to make it clear that NATO is in charge of the operation lend weight to viewing this conflict as NATO v. Libya? On the other hand, does the French recognition of the Libyan rebel forces as the legitimate government of Libya favor viewing the conflict as France (and its allies) v. Libya?

One reason why the characterization of the conflict matters is the concept of the combatants’ privilege. This privilege allows members of national armed forces to avoid criminal liability for the harm they do, as long as their actions comport with the laws of war. Without this privilege participants in an armed conflict could be subject to criminal liability for assault, murder, arson, etc. resulting from any use of a weapon. If this is an international armed conflict then the privilege applies to members of national armed forces (Libya, France, the US, etc.) involved in the conflict. If this conflict is a NIAC then combatant status, and the privilege that flows from it, is not clearly developed. AP II contains no mention of “combatants”. It assumes that the domestic law of the state in which the conflict is taking place will regulate the conduct of the conflict.

If this is a NIAC are the allied forces entitled to the combatants’ privilege? The common sense answer to this question must be yes, that US and French armed forces are not incurring potential criminal liability for conducting strikes that comport with the laws of war under the authorization of the UN. However it is less than clear what the source of that privilege might be. Is there a privilege associated with being part of a UN authorized force, even in a NIAC, and is the scope of that privilege the same as the combatants’ privilege found in IAC’s? Or is the need to find a combatants’ privilege for the UN authorized force another independent and compelling reason to classify the conflict as an IAC in the first place?

I don’t believe that IHL currently provides definitive answers to these questions, and the status of the rebel forces complicates matters even further. My own proposed solution, which will be the subject of another post, is that the conflict be treated as a NIAC but that the status of all parties to the conflict, not only the UN forces and the Libyan army, but that of the rebels as well, be more clearly and symmetrically articulated.