Program on Humanitarian Policy and Conflict Research - IHL

Double-Tap Drone Strikes and the Denial of Quarter in IHL

Ofilio Mayorga — Wed, 08 May 2013 13:49:23 +0000

Blog Type:

IHL in Action

The denial of quarter is prohibited under the customary rules of armed conflict and is considered a war crime under the Rome Statute (see article 8(b)(xii) and article 8(e)(x)). In his book Kill or Capture: The War on Terror and the Soul of the Obama Presidency, Daniel Klaidman explains that the Obama administration struggled for some time with the question of whether the administration’s targeted killing policy amounts to a denial of quarter. In the same vein, Jeh Johnson, former General Counsel of the Department of Defense, once warned, “We have to be vigilant to avoid a no-quarter, or take-no-prisoner policy.” Despite such calls for restraint, and though the pace of drone strikes has slowed down this year compared to that of 2012, the policy of targeted killing remains intact.

Like most norms of international humanitarian law (IHL), the obligation to give quarter purports to strike a balance between military necessity and humanitarian considerations. First, this obligation protects combatants actively engaged in hostilities from threats of extermination. Conversely, an order to deny quarter communicated in advance of fighting renders a potential offer to surrender void ab initio. Second, the obligation to give quarter shields from attack fighters who are out of combat, either due to sickness, wounds, or shipwreck, or because the fighters have expressed an intention to surrender. The rationale behind this aspect of the rule is that attacks against hors de combat are inhumane and confer little military advantage.

Additionally, the failure to give quarter would render many IHL norms irrelevant. As the ICRC stated in the commentary to article 40 of Additional Protocol I:

It is obvious that if there is no quarter, in other words, no survivors, there will be no wounded to be retrieved and cared for, no shipwrecked persons to be rescued, and no prisoners to respect and treat humanely.

To be sure, the no quarter rule should not be read to include a requirement to offer the enemy an opportunity to surrender or a duty to capture prior to using lethal force. Air missile operations would be impossible to justify under the laws of war if that were the case. Take as an example NATO’s air bombing campaign over Kosovo in 1999, which involved 10,500 strikes launched from approximately 15,000 feet. Very few would suggest that the absence of ground forces rendered operation Allied Force per se illegal because NATO did not capture a single Serbian soldier.

However, State practice places significant weight on taking prisoners as a factor to determine compliance with the obligation to give quarter. In a report (see p. 719) submitted to Congress after the first Persian Gulf War, the U.S. Department of Defense defended the tactic of using armored vehicles to crush or bury dug-in infantry forces on the basis that “[t]he large number of Iraqi prisoners of war [was] evidence of Coalition compliance” with the obligation not to deny quarter to surrendering forces. The Tablada case (see para. 182) also illustrates the point. Petitioners submitted that the Argentinian military had denied quarter by deliberately ignoring an offer to surrender during the recapture of a military base. But the Inter-American Commission on Human Rights dismissed the claim, assisted by the fact that the Argentinian military took survivors after the attack, which “tends to belie any intimation that an order of no quarter was actually given.”

But both the Tablada and the Persian Gulf War cases are inapposite to the determination of whether or not the U.S. drone program violates the rule on no quarter for two reasons: 1) drones cannot capture their targets, and 2) drone operations, at least in non-declared war zones, are not supported by boots on the ground, except for intelligence gathering. Coupled with the fact that IHL does not impose an obligation to employ ground forces, the Obama administration’s preference for killing rather than capturing suspected terrorists does not make the drone program per se illegal under the laws of war.

Adding double-tap strikes to the argument, though, introduces another layer of the issue. In the report, “Living Under Drones,” New York University and Stanford human rights clinics found “significant evidence that the US has repeatedly engaged in a practice sometimes referred to as double tap, in which a targeted strike site is hit multiple times in relatively quick succession.” Double tap strikes have killed fighters already injured in a first strike and have deterred rescuers from assisting them, which may also result in the target’s death. In either case, these strikes violate IHL because the rule on no quarter imposes an obligation to desist from further attacks once a combatant has been placed out of combat. This tactic is not defensible under the law of reprisals or on the basis that the targets are “terrorists”.

Unlike isolated IHL violations committed by undisciplined soldiers on the battlefield, failure to give quarter during wartime has far-reaching implications for everyone involved in the planning and execution of military operations. This may be the reason why the Pentagon’s former chief lawyer advised President Obama to avoid a “take-no-prisoners” policy.

It is unlikely that the drone program will be abolished anytime soon, but ending double-tap strikes would be an important step towards reducing the gap between IHL and the practice of targeted killings.

Blog Tags:

Targeted killings

Drones

Hors de combat

no quarter

IHL

Arms Trade Treaty: A ray of hope to change the way world fights?

Sanoj Rajan — Wed, 20 Mar 2013 04:00:00 +0000

Blog Type:

IHL in Action

As around 150 states started negotiating on the final terms of the proposed Arms Trade Treaty (ATT) in New York on 18 March 2013, the expectations from the regulation on the global trade on conventional weapons are keeping high. Started as a movement to find solution to the lethal consequences of the uncontrolled arms trade, the impact of ATT would be multifarious, which could change the lives of millions caught up in violent situations.

It is widely acknowledged that majority of conflicts today are not fought by conventional armies, but by non-state armed groups and private military companies. Furthermore recently the number of groups taking up arms increased on an alarming scale, including branching out of the existing groups. This takes the firearms to very irresponsible and unsafe hands, latest example being the execution of seven foreign workers in Nigeria by a little known group Ansaru which is a splinter group from the better-known group Boko Haram. The stories are not different in other parts of the world too where you see a lot of new groups taking up arms for their own cause. This type of unregulated flow of firearms, easily accessible to armed groups essentially makes the world a dangerous place to live in. This is mindful while looking at the statistics where half a million people perish every year and many more get injured because of the use of conventional firearms. The international trade in arms is estimated to be worth more than 100 million a year. It is interesting to see how ATT, a multinational treaty (if realized) signed and ratified by states, could regulate the acts of non-state actors and thereby change the ways in which the world fights its wars and of course there by protecting the civilians.

ATT and its probable impact
Initially the idea for an international convention regulating trade and transfer of conventional firearms was put forwarded by civil society actors and Nobel Peace laureates as early as 1990’s. In 2006 United Nations General Assembly through its Resolution 61/89 requested views of member states and constituted groups of Governmental experts from 25 states to explore the idea. In 2009 United Nations General Assembly issued Resolution 64/68 calling for convening a conference on the Arms Trade Treaty in 2012, which finally took place in New York, from 2-27 July 2012. The 2012 conference could not come with any effective out come because a small group of countries including US, Russia and China pointed out some technical problems with the text of the draft ATT.

The main objective of the ATT is to regulate the international trade in conventional arms and eradicate their illicit trade, marketing and unauthorized end use. The firearms that are intended to be covered include the conventional ones, which are not covered through other international conventions in place. The firearms in focus would be small arms and light weapons along with other conventional firearms like Battle tanks, Armored Combat Vehicles, Large caliber artillery systems, Combat aircraft, attack helicopters, warships, missiles and missile launchers.

The important provisions of ATT include prohibition of transfer of conventional arms if it violates obligations under the UN Charter and other international agreements. It specifically prohibits if such transfer facilitate commission of Genocide, crimes against humanity or war crimes constituting grave breaches of the Geneva Conventions, including serious violations of the common article 3 of the Geneva Conventions. It also provides for national assessment before export of conventional firearms to determine whether it would contribute to, or undermine peace and security and facilitate a serious violation as mentioned above. State parties involved in the international transfer shall take appropriate measures to prevent diversion of firearms to the illicit markets or for the unauthorized end use.

The importing state parties are also obligated to give relevant information to the exporting states to assist in their national assessments. They have to adopt appropriate measures to prevent the imported conventional arms under the scope of the treaty to reach illicit markets or for unauthorized end use. Every importing country has to collect information and keep record on details of the export/import, transits and trans-shipment and on the end user of the firearm. This information is to be kept up to 10 years. The drafters look forward to minimize loopholes by making all parts of weapons be included in the regulation including ammunition and production equipment. Likewise all transactions has to be included like those by dealers, brokers and those providing technical assistance, training transport, storage, finance and security. All type of transfers i.e., import, export, re-export, temporary transfer and trans Shipment, loans, gifts and aid are to be monitored under the ATT regulation.

Once widely accepted and properly implemented, ATT can prevent unauthorized transfer of conventional firearms to the non-state actors, organized criminal groups and other unauthorized end users. This can make a big difference to the different types of violence occurring across the world, both classified and unclassified armed conflicts. Though many armed groups fight for legitimate causes, members of such groups are untrained and unwary of the nuances of rules of war and hence are not very much concerned about violations. Therefore a regulation and restriction of illicit arms trade would be one of the best ways of controlling these problems faced by the modern world.

Challenges
Though the draft ATT seems conclusive and effective to regulate the firearms flow, it runs a risk of being abated by the states for many reasons.

Resistance from the countries dealing in arms
Just mentioning that the five permanent members of Security Council are the largest arms manufacturers and dealers show how intense the political resistance to ATT is going to be. The big five are joined by Germany, Israel, Italy, Sweden, South Africa, Spain, Belgium and Ukraine in the league of biggest arms exporters. Considering the discouraging stance already taken by China and Russia, on inclusion of binding rules on international human rights, international humanitarian law and socio-economic development in the ATT shows trouble at the outset itself. Though US stance is positive after the Obama administration reversed earlier opposition to the ATT, it still has reservations and is supportive of transferring arms even when there is credible evidence of their potential use for serious violations of human rights. Another point raised by US was against inclusion of ammunition under the scope of the ATT, apprehending it as impractical in terms of implementation.

The other side of the game also has bigwig players in the list; India and Pakistan are among the top three arms importing states with its prominent internal issues with non-state armed groups. This list also includes United Arab Emirates, Saudi Arabia, South Korea and Iraq in the first 20 names. It would be a real challenge to get many of these countries on board of ATT and further internally it would be very difficult to have national assessment as per ATT especially in turbulent areas like Khyber Pakhtunkhwa (KPK) province in Pakistan or in areas with Maoist presence in India.

Proxy wars
Even after the end of cold war many countries still continue proxy war as a part of their foreign policy. The precursors of many of todays armed conflict situations were proxy wars and for sure it is going to haunt ATT from the beginning. All the countries mentioned above, who are stakeholders in conventional firearms trade have had stake in some proxy wars as either active supporters or as targets. So this could be another reason why many countries may resist ATT.
It is interesting that many of the present conflicts are in fact uprisings against oppressive rulers and dictatorial regimes’ and the people are fighting for their legitimate rights. If ATT is strongly implemented the possibility of a third country supporting such legitimate uprising may become difficult and this could also stand in between ATT and its success.

Illegal trade and black market smuggling
Even after the successful implementation of ATT, the illegal transfer of firearms may continue through black market smuggling and illegal trafficking in arms that are mostly beyond the control of states. Like wise the covert government shipments to armed groups supported by them may continue to haunt ATT in its effectiveness.

With all the oppositions from different countries and the so-called shortcomings in the draft, ATT is under negotiation and the whole world is looking forward to March 28 2013 when the conference end in New York, expecting it as a step towards changing the way the world fights, and thereby protecting innocent civilians in such situations.

Blog Tags:

IHL

Arms Trade Treaty

International Humanitarian Law

Non State Actors

Armed Groups.

Shahbag Movement and the Mandatory Death Penalty for Alleged War Criminals in Bangladesh – The International Crimes Tribunal revisited

Sanoj Rajan — Fri, 22 Feb 2013 22:25:42 +0000

Blog Type:

IHL in Action

Recent mass movement in Bangladesh, demanding capital punishment for the accused war criminals before the International Crimes Tribunal (ICT) in Bangladesh and the subsequent amendment to the International Crimes Tribunal Act of 1973 (ICTA) by the Bangladeshi government on February 17, 2013, once again raises the much-debated question regarding the fairness of ICT’s prosecution.

The movement is named after Shahbag, a major neighborhood in Dhaka, the capital city of Bangladesh, where hundreds of thousands of Bangladeshis gathered demanding death penalty to Mr. Abdul Quader Mollah the second person to be convicted by ICT. The ICT was setup for trying the alleged atrocities committed during the 1971 Liberation War of Bangladesh where around three million people lost their life and rape of around two hundred thousand women occurred. Many of these women were subjected to sexual slavery, forced pregnancy and torture. The war created around ten million refugees, most of who had fled to India allegedly forcing India to get involved in the war. The ICTA provide for trial and punishment of any person irrespective of his nationality for crimes against humanity, crimes against peace, war crimes, genocide, violation of Geneva Conventions and other crimes under international Law committed during the 1971 Bangladesh liberation war.

At the time of its enacting in 1973, ICTA was considered as a bold step and a noteworthy development in international criminal law when the other world nations were shying away from the concept of an International Criminal Court. This reputation was fallen short of when the Pakistani prisoners of war accused of war crimes and crimes against humanity captured by Indian Army were released on the basis of an interim opinion given by International Court of Justice and subsequently through a mutual agreement between Pakistan and India. Further through several Bangladeshi national legislative and executive orders hindered prosecutions under ICTA and granted amnesty to many accused Bangladeshi nationals.

Though enacted in 1973, ICTA took almost four decades to constitute the tribunal, which came into force on 2010. After its constitution ICT made arrests without any formal charges and denied bail to the accused, which made international community to voice its concerns over the ICT’s ability to proceed with the trials in a fair and unbiased manner and provide protection to the witnesses. Above all there was a wide spread apprehension that the trials were politically motivated as five of the seven accused were members of Jamaat-e-Islami party and other two were from Bangladesh National Party both opposition parties to the ruling Awami league. The main criticisms faced by the ICTA at its initial period were as the following.

The ICTA was adopted in 1973 and was fashioned in Nuremburg model and International Criminal Law has developed since then. To ensure justice, the jurisprudence and interpretations of various ad hoc international tribunals and the International Criminal Court at The Hague should be incorporated in the ICTA.
The amendments to the Constitution of Bangladesh, especially article 47(3) and 47A took away major constitutional protections to the accused under the ICTA. These amendments are discriminatory and gross violation of the International Covenant on Civil and Political Rights (ICCPR) to which Bangladesh is a party.
The lack of provision for appeal on interim/interlocutory orders, this was mooted especially considering the fact that five accused were arrested with out any formal charges and they were detained till the end of the post-conviction stage and hence devoid of any appeal remedy.
Challenges of retroactive application of the ICT, even though all the ad hoc international criminal trials so far, except the International Criminal Court had retroactive application of law.
No provision for challenging the jurisdiction of the ICT.
The reversal of burden of proof in case of alibi defense.
Death penalty which seems inconsistent with the Bangladesh’s treaty obligation under the ICCPR

Though some were well founded many were not, most of these allegations were addressed and countered by ICT and the Bangladeshi government at that time. Now the stage has reached where the first two verdicts have come out, one a decision in abesntia awarding death penalty and the second one awarding life sentence to the convict.
The present controversy is associated with the ICT’s second decision sentencing Mr. Abdul Quader Mollah for life and following that a large section of people in Bangladesh came out to streets demanding death penalty for him. The subsequent amendment to the ICTA by the government to address this popular demand reopened the discussions regarding the fairness of the ICT. This new controversy has to be analyzed de novo and not be read along with the earlier criticism associated with the ICT and ICTA at its initial period, which were discussed and addressed once. The emergent controversy associated with the Shahbag movement and the new amendment passed on February 17, 2013 needs an independent analysis under the following heads.

The Demand for Mandatory Death Penalty for an already sentenced convict.

The popular demand and subsequent constitutional amendment seeking death penalty for Mr. Abdul Quader Mollah, who has already been sentenced to life imprisonment by the ICT is arbitrary deprivation of life in violation of article 6, paragraph 1 of the ICCPR. It would amount to a decision taken in circumstances where death penalty is imposed with out any possibility of taking into account the defendant’s personal circumstances or circumstances of the particular offence. In the present case it is very clear that Mr. Mollah has been convicted and sentenced to life imprisonment by a competent court is now exposed to a mandatory death penalty just because a section of the society thinks that the punishment awarded by the court is not sufficient. It is to be noted that under the ICTA the court is empowered to award death penalty under the original act; however it awarded life imprisonment after due process and considering the merits of the case. This is to be read in light of the popular demand and the political determination of the government to give death penalty to Mr. Mollah.
This point is further supported by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions statement that "[t] he mandatory death penalty which precludes the possibility of a lesser sentence being imposed regardless of the circumstances, is inconsistent with the prohibition of cruel, inhuman or degrading treatment or punishment."

Retrospective application of the Amendment to Section 21 (1) of ICTA

Before the amendment, ICTA Section 21 provides for appeal by the convicted person to the appellate division of the Supreme Court of Bangladesh and at the same time it is silent on whether the state can do the same. The recent amendments to the ICTA incorporate the ability of the state to move the appellate court against the decision of the ICT and to decrease the time for an appeal to be completed. Many of the supporters of the Shahbag movement and the Government would claim that the amendment only rectifies a procedural anomaly in the act and now both the prosecution and defense are put to equal terms. But here the retrospective application of the governments right to appeal specifically, for imposing the death penalty for a particular person (presently Mr. Molla) amounts to clear violation of Article 15 (1) of ICCPR which mentions: “Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.” Here neither during the commission of the offence nor even during the trial there was any reference to mandatory death penalty to the convicts, hence the amendment runs contrary to the spirit of this Article, which in fact favors a lighter punishment through the retrospective application of a provision. In this case, on the contrary, government intends to seek enhancement of punishment. Nor the exception clause in Article 15 (2) under ICCPR applies here, which stands for prohibiting impunity and speaks of the justifications against nullum crimen, nulla poena sine praevia lege poenaliprinciple underlined through Nurumburg Trials and subsequently in Adolf Eichmann’s case.

Double Jeopardy

Though the present amendment enabling appeal by the State against the decision of ICT seems legitimate, it would amount to double jeopardy because of the alleged political intention of giving definite death penalty to Mr. Mollah. This intention is evident from the statements given by people holding high offices, for example Prime Minister Sheikh Hasina was reported by media as saying she would talk to the judges to convince them to take the sentiments of the protesters into account in formulating their decisions. When the bill was offered in parliament, the deputy speaker welcomed it by saying, “This is the voice of parliament.” Protesters in Shahbag have called for Jamaat and its student wing, Islami Chhatra Shibir, to be banned, and for further amendments of the ICT law to prohibit presidential pardons for those convicted by the ICT, and to permit closure of Jamaat-related businesses and media outlets. This all point toward a definite political intention to give death penalty to Mr. Mollah. The gravity aggravates when it is read along with the constitutional amendments especially the one through Article 47 (A) which takes always the fundamental rights of the war crimes accused otherwise available to a Bangladeshi citizen. Article 47 (3) further prohibits the war crimes accused from approaching appropriate forums against ex post facto laws, right to speedy, fair trial and the ability to enforce guaranteed rights under the constitution. Hence reconsidering the sentence awarded by the ICT through a retrospective amendment would amount to double jeopardy as the conviction process has been completed by the pre-amended ICTA. This point is further supported by article 75 (3) (h) of Additional Protocol I to the Geneva Conventions, which says, “no one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgment acquitting or convicting that person has been previously pronounced under the same law and judicial procedure.”

Conclusion

It is widely accepted that a national level prosecution of grave international crimes helps in promoting self-reckoning and reconciliation in the aftermath of violent conflicts. It also equips the state in the painful search for its lost identity due to the atrocities committed. But at the same it has to be made sure that in that process of reconciliation (both physical and emotional), the state should not forget to deliver justice in a fair and equitable manner. It may be true that the prosecuted war criminals under the ICT might have had committed the crimes alleged, but it should not be an excuse for the state to deny them a diligent due process and fair trial.

Blog Tags:

International Criminal Law

War Crimes

IHL

International Tribunals

Death Penalty under International Criminal Law

Killing journalists in wartime: a legal analysis

hpcr — Fri, 11 Jan 2013 22:41:35 +0000

Blog Type:

IHL in Action

Journalists who work for media outlets or information services of the armed forces.
Journalists who accompany the armed forces and are authorized to do so, but who aren’t members of the armed forces, e.g., the embedded reporter.
Journalists who are undertaking professional activities in areas affected by hostilities but who aren’t accompanying the armed forces, e.g., the broadcaster who is presenting from a conflict zone but who isn’t embedded with the troops.

The first category of journalists constitutes members of the armed forces. Accordingly, they don’t benefit from the protections afforded to civilians and their deaths don’t constitute a violation of the law.

The latter two categories of journalists are civilians. Accordingly, they can’t be attacked, unless and for such time as they take a direct part in hostilities. Reporting on events and investigating abuses committed by the parties can never constitute taking a direct part in hostilities, even if the investigations lead to greater support for one side or another.

Journalists may, however, prove to be casualties of lawful attacks. This is a particular risk for journalists who are embedded with troops. The law allows for the targeting of troops and that targeting may result in bystanders or embedded reporters becoming casualties. In order to judge the legality of such an attack, the law utilizes the principle of proportionality, ie we have to weigh up the expected loss of civilian life, injury to civilians, and damage to civilian objects with the concrete and direct military advantage anticipated. Only where the former is excessive when compared to the latter will the attack be unlawful. Although any loss of life is regrettable, the legal test means that deaths don’t necessarily imply that unlawful acts have been committed.

Particular controversies

One particularly controversial area of the law is the targeting of TV and radio stations. Civilian broadcasting services are protected from attack. They may be legitimate targets, however, if they constitute military objectives. In legal terms, this refers to objects that, “by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”

This would render dual purpose broadcasters that broadcast civilian programmes and which are used for military communications possible targets. Civilian broadcasters that broadcast propaganda are not generally considered military objectives, as propaganda doesn’t satisfy the test for a military objective. Thus, following NATO’s targeting of the RTS studio in Belgrade during the conflict in Kosovo, the Committee established by the Prosecutor of the International Criminal Tribunal for the former Yugoslavia to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia noted that, “if the attack on the RTS was justified by reference to its propaganda purpose alone, its legality might well be questioned by some experts in the field of international humanitarian law” (para. 76). Compare that to Radio Mille Collines, the broadcaster that was inciting genocide in Rwanda and which many people consider a legitimate target. The dividing line is a tricky one to draw.

Blog Tags:

IHL

Syria

ICTY

Journalists

NATO

Guest Writer:

Sandesh Sivakumaran

How to close the gap between law and practice in targeted killing

hpcr — Tue, 28 Aug 2012 19:01:49 +0000

Blog Type:

IHL in Action

[Editor's Note: In its efforts to enrich professional dialogue on contemporary challenges of humanitarian law and policy, the Program on Humanitarian Policy and Conflict Research (HPCR) at Harvard University invites experts in international humanitarian law, humanitarian action, and associated fields to contribute their insights to relevant discussions. We are pleased to welcome the contribution below from Gabor Rona, one of the expert panelists at the 11 September 2012 Live Web Seminar on "Emerging Challenges in the Age of Drones: Targeted Killings and Humanitarian Protection"]

Drone strikes conducted by the United States are an increasingly hot flash point in the U.S., in the countries where they occur, and in relations between the U.S. and its allies. Not long ago, a U.S. drone strike is reported to have killed approximately 40 people in Pakistan. The New York Times reports that it was a meeting of Taliban mediators and local citizens. But a Pakistani resident dismissed that assertion, saying “[t]he Taliban will never gather in such a large number in broad daylight to be targeted by the drones. It has been a big mistake to target the jirga, as it will have severe consequences.” A Pakistani General upped the rhetorical ante: “It is highly regrettable that a jirga of peaceful citizens, including elders of the area, was carelessly and callously targeted with complete disregard to human life.”

The U.S. could take a meaningful step toward reducing the heat by adding more light. The use of drones to deliver deadly force is not necessarily a violation of law. In war, killing is permitted, but subject to certain limitations. The U.S. could, and should, make public the criteria it uses to determine that a drone strike is lawful, as well as the vetting process by which targeting decisions are made. This would not jeopardize national security, as no disclosure of decisions in individual cases would be required.

Careless statements by U.S. officials, such as “These people weren’t gathering for a bake sale. They were terrorists,” merely add to the need for clarification and greater transparency. Why careless? Because international law does not permit deadly force against people simply because they are considered a “terrorist” or "militant" or "insurgent," - the terms most often used in public accounts. The laws of war are more restrictive and are commonly understood to prohibit use of deadly force unless the target is a combatant or a civilian directly participating in hostilities. If such statements by U.S. officials accurately reflect U.S. targeted killing policy, there is, indeed, cause for concern.

A second point of contention concerns the problem of unintended victims, or what international law antiseptically calls “collateral damage.” Not all targeting of legitimate military objectives becomes illegitimate because of the risk of civilian death. Instead, the law establishes a test of proportionality, weighing military advantage against civilian harm. In the attack in Pakistan mentioned above, a U.S. intelligence official is reported to have said that of the 32 people at the meeting, 13 were Taliban fighters, 11 of whom were killed, and that the rest of the dead were elders and tribesmen. This admission raises serious questions about the vetting process for targeted killing. The proportionality analysis is not simply a numbers game and even a high ration of civilian to military casualties might not be a violation of law if adequate precautions are taken. Mistakes can, and do, occur. But so long as both the criteria for deciding who to kill and the process for making the decision remain unknown, reasonable doubts about the legality of such attacks will, and should, persist.

One resident is reported to have said that given the large Taliban presence, average people and the militants were difficult to distinguish in the area, but that to target a jirga would lead to a backlash. “It will create resentment among the locals,” he said, “and everyone might turn into suicide bombers.”

A third point of contention is about the concept of war, itself. To justify killing because it is permitted in war presumes that the context is, indeed, war. There is little doubt that the context is indeed war in Afghanistan, and probably those areas of Pakistan from which attacks against U.S. forces are organized. But what about U.S. targeted killings in Yemen, in Somalia, and elsewhere? Some contend that in the absence of a "hot battlefield," the laws of war have no application. But even if that contention is wrong, the targets must surely have some nexus to parties against whom the U.S. is at war. The question of what that nexus must be is unsettled.

There are limits to what can be done to eliminate civilian casualties in so complex an environment. But there is every reason to strive to those limits, for purposes both humanitarian and strategic. Improved transparency by the government will build confidence in the U.S. and elsewhere if it shows that the policy is within the bounds of law. If it shows otherwise, it should put pressure on the government to bring the practice to heel.

Blog Tags:

Drones

IHL

humanitarian

Guest Writer:

Gabor Rona

Briefing Note: On Target? Drone strikes, legitimate military objectives, and civilian casualties

Ofilio Mayorga — Fri, 10 Aug 2012 13:55:40 +0000

Blog Type:

IHL in Action

Accounts of U.S. drone strikes in Pakistan, Yemen, and Somalia abound. In most cases, news agencies highlight the killing of a top Al-Qaeda member or “suspected” terrorists hiding in dubious militant compounds. AFP recently reported a new drone attack that killed at least 7 people in North Waziristan, a Pakistani tribal district near the Afghan border. Although the victims were not identified, local security officials said all of them were militants. But the Bureau of Investigative Journalism (TBIJ), a British NGO that tracks CIA drone strikes, cautioned that three of the victims may have been innocent civilians.

At least two conclusions may be drawn from this example. First, the U.S. policy of targeted killings is not limited to “personality strikes”, which are aimed at known high-value suspected terrorists; it also covers “signature strikes”, targeting groups of unknown individuals who have been determined, through surveillance, to exhibit certain patterns of activity commonly associated with terrorist operations. Signature strikes increase the risks of target misidentification and collateral damage.

Second, the actual number of civilian casualties from drone strikes will remain highly contested. On the one hand, the numbers provided by the United States minimize the total of civilian deaths because U.S. counts all military-age males found in a strike zone as combatants or potential co-belligerents of Al-Qaeda. On the other hand, human rights groups may be more inclined to count persons whose status is unconfirmed as civilians, thus reporting a higher number of civilian casualties.

The issue that lies at the heart of the controversy around the U.S. drone program can be framed in one simple question: who can be targeted? Unfortunately, there is currently little consensus among scholars, decision-makers, and humanitarian actors. The answer depends on the legal framework that governs targeted killings.

The United States has defended its drone program mainly on the basis of the existence of an armed conflict with Al-Qaeda and its right of self-defense. The laws of armed conflict authorize belligerents to attack members of an organized armed group, such as Al-Qaida and affiliates, as well as any civilians taking direct part in hostilities. Because targets are considered legitimate by virtue of their affiliation with an armed group or their function in an armed conflict, the United States asserts its right to target individuals even outside of the traditional battlefields. According to this interpretation, the laws of armed conflict follow the individual wherever he or she goes. Moreover, reliance on the right of self-defense allows the United States to preventively target individuals who purportedly pose an imminent threat, without the need to establish the target’s connection to the armed conflict between Al-Qaeda and the United States.

So long as targeted attacks from drones comport with the principles of distinction, proportionality, and precaution, personality or signature strikes are likely to be consistent with the laws of armed conflict, even if civilian casualties ensue. After all, in times of war, knowing the name or identity of a legitimate military target before an attack is irrelevant. Some argue that the precision and accuracy of drones make them the most humanitarian weapon available, since the likelihood of indiscriminate attacks is substantially diminished. This alone may justify tightening the legal standards of proportionality and precautions prior to an attack so as to minimize unnecessary civilian losses and target misidentification, which will ultimately subject drone strikes to much closer scrutiny.

That said, the most precarious aspect of the U.S. drone program is not the use of drones itself, but the arbitrary designation of individuals to a terrorist group and the relaxation of the standards and criteria for determining who is a legitimate military target.

At present, merely being suspected of engaging in terrorist activities seems to warrant the deprivation of life without due process of law. Given the technological advantages of drones and the secrecy of the CIA drone program, carrying out targeted killings outside of the traditional battlefield may have become too easy. As a result, human rights advocates are pushing for the application of law enforcement standards and human rights law to the conflict with Al-Qaeda and terrorist organizations, in order to ensure the adoption of alternatives to the use of deadly force as a first resort (i.e., capture). Additionally, human rights law may be less tolerant of collateral damage, even if proportionate in relation to the military advantages of an attack.

As a policy matter, it is important that a consensus on the standards and criteria for targeted killings be reached, particularly as other countries may develop their own drone programs in the future. And despite the lack of effective legal mechanisms for the enforcement of international law, the United States has an incentive to comply with the laws of war in order to prevent Al-Qaeda from using drone strikes as a recruitment tool. But as long as the American public continues to perceive targeted killings of suspected terrorists as legitimate, there will be little incentive for other branches of the U.S. government to limit the Executive’s current policy of targeted killings.

Blog Tags:

Drones

Targeted killing

IHL

Understanding Core Differences between Human Rights and International Humanitarian Law in Armed Conflict

Dustin Lewis — Tue, 17 Apr 2012 13:41:48 +0000

Blog Type:

IHL in Action

International human rights law (IHRL) and international humanitarian law (IHL) are often perceived as legally synonymous, aiming to achieve similar objectives through legal protection. Yet while they share important features, these two bodies of law have distinct origins and in many ways constitute distinct projects.

At its core, IHRL seeks to regulate the relationship of the government to its population in order to spur the government to do what is necessary to ensure the safety and well-being of its population while allowing the population to pursue their desires unencumbered by unwarranted government intrusion. IHL — also known as the law of armed conflict — is more limited, applying only during armed conflict and seeking generally to inject a modicum of humanity into wartime by regulating the means and methods of warfare and protecting those not, or no longer, directly participating in hostilities. While IHRL has a fundamental mission of transforming the relationship between the government and the population, IHL aims primarily to limit the effects of hostilities on populations, whether civilians, detainees, the wounded, the sick, or those otherwise hors de combat. In contradistinction to IHRL, IHL continually weighs the humanitarian interests of the population against the interests of parties to armed conflict attempting to achieve their military objectives.

These fundamental distinctions between IHL and IHRL can confuse and confound humanitarians operating in armed conflicts, natural disasters, and other emergency situations. Some of the difficulty may result from the turn by many humanitarian organizations — whose initial ambit was limited to emergency relief amid the tumult of armed conflict — to incorporate (often vague) human rights approaches into their work without identifying the short- and long-term costs and benefits of doing so. Adopting a “dual-hat” approach to humanitarian action, these organizations attempt to combine life-saving assistance alongside building the state’s capacity to promote and protect rights.

Programming that blends humanitarian and human rights objectives is on its face laudable, yet it raises strategic issues for humanitarian policy-makers. As Naz K. Modirzadeh recently argued, the co-application of IHL and IHRL during armed conflict could have significant deleterious effects for civilian protection, including diluting the clarity of IHL, reintroducing a hierarchy of rights, and undermining sovereignty and long-term rights development. Balancing these considerations is one of the many challenges facing humanitarian actors today.

Blog Tags:

IHL

IHRL

humanitarian policy

Human rights obligations and accountability of armed groups

hpcr — Mon, 02 Apr 2012 19:37:24 +0000

Blog Type:

IHL in Action

One of the controversies surrounding armed groups is whether – and to what extent – they bear obligations under international human rights law. The traditional and still dominant conceptualization of human rights addresses only harms done by governments to individuals and leaves largely unaddressed abuses committed by non-state actors and private parties. The relevant treaties are signed and ratified by states and are binding upon them. Thus states incur a range of obligations to respect, protect and fulfill the rights of those in their territory and subject to their jurisdiction. These obligations are monitored by the respective treaty bodies as well as under other universal or regional mechanisms. By not fitting into this scheme, armed groups are not considered as bound by international human rights law. Thus any non-governmental violence is not regarded as amounting to human rights violations but as only having an indirectly harmful effect on the capacity of states to provide basic services and ensure full enjoyment of human rights to affected individuals.

This approach is, however, premised on the shaky assumption that states possess and control a functioning institutional apparatus and that governments are in effective control of the state’s territory. It turns a blind eye to dozens of failing or failed states that are unable to provide even the most basic services to their citizens and other individuals (e.g., refugees) and/or do not control portions of their territory. In such situations the state-centric approach to human rights is largely ineffective and leaves a regulatory and accountability gap, which cannot be filled by applicable rules of state responsibility or international humanitarian law and international criminal law, even if we were to assume the latter’s applicability in all situations. Infringements on the rights to expression, religion, assembly, movement, family, food, work, health, education and others as well as issues of (gender-based or other) discrimination are barely and only indirectly – if at all – addressed by applicable international humanitarian law. This gap should however be filled if the international community is serious about the cause of human security.

Yet, regulation of activities of armed groups in international treaty law is mostly limited to international humanitarian law (i.e., common article 3 of the 1949 Geneva Conventions and the 1977 Additional Protocol II). As regards international human rights treaty law, armed groups have only found their way into Article 4, paragraph 1 of the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. Nevertheless, there is nothing in international law that prevents further regulation of harmful activities of armed groups in situations beyond the reach of international humanitarian law. Many armed groups do not lack the capacity to provide protection to civilians and ensure a variety of their human rights that go beyond the reach of applicable rules of international humanitarian law or, conversely, commit violations/abuses of rights that do not necessarily result in accountability under international criminal law. The international legal system may well accommodate additional obligations (and rights) of non-state actors if treaties are concluded or customary law emerges to that effect. Indeed, apart from treaties, there are plenty of legally significant developments in many conflict situations involving armed groups that are largely unaccounted for and can influence or change the legal landscape if properly documented.

Such developments include the rich practice of the Security Council, which has identified the applicable legal framework concerning armed groups as including human rights obligations and has sometimes enforced such obligations by imposing sanctions on their leaders. This practice is in line with similar developments in the United Nations and elsewhere, such as: UN reports as well as expectations and engagement of UN organs with armed groups on the ground; reports by Truth and Reconciliation Commissions; peace and other agreements concluded between armed groups and concerned governments, often witnessed by other states and/or the UN; declarations and codes of conduct unilaterally undertaken by armed groups under the scrutiny of the international community. Much of this practice has developed in interaction with armed groups, which adds to the legitimacy of the obligations incurred.

When they first appeared, such developments admittedly met with controversy among scholars and some ambivalence in the UN. However, when the problem has arisen on the ground the various concerned actors – including affected governments and the United Nations – in different country situations did not shy away from extending human rights obligations to armed groups in addition to obligations applicable under international humanitarian law. Much of this practice has skipped the attention of international lawyers. However, if such developments are properly documented and if their legal relevance is properly assessed, we may witness a welcome change in the applicable legal framework, which will extend human rights obligations and accountability to powerful armed groups to the extent appropriate to the context, depending on their actual capacity to bear those obligations.

Blog Tags:

IHL

non-state armed groups

Guest Writer:

Aristoteles Constantinides

On ICRC Engagement with Non-State Armed Groups: Recent Developments

hpcr — Mon, 02 Apr 2012 19:18:02 +0000

Blog Type:

IHL in Action

Engaging with non-state armed groups has been at the core of ICRC actions for decades. For example, Henri Dunant, the founder of the ICRC, brought humanitarian help and tried to negotiate the release of hostages during the Paris Commune in 1871. According to an ICRC publication from 1900, only 39% of Red Cross operations between 1863 and 1899 happened in "international wars", while 55% were carried out in contexts involving the equivalent of modern-day armed groups. These included both insurgents and non-recognized States. In the 20th century, ICRC action involved dialogue with countless armed groups. For example, following the First World War, the organization was active in Silesia (1921) and Ireland (from 1922). During the Second World War, the ICRC had contact with a number of resistance organizations in occupied Europe and tirelessly worked for better protection of their members, while also visiting German prisoners held by the French Forces Françaises de l’intérieur (1944). In the immediate aftermath of the war, it maintained contact with parties in China, Greece, Palestine under British mandate, and Vietnam. During the Cold War, the ICRC engaged in dialogue with armed groups in Africa, Asia, and Latin America, such as the New People’s Army in the Philippines, the National Union for the Total Independence of Angola (UNITA) in Angola, and the Farabundo Martí National Liberation Front (FMNL) in El Salvador.

Today, given the explosion of non-international armed conflicts and the proliferation of armed non-state actors, far from being a merely temporary phenomenon, they are here to stay as participants in armed conflict and other situations of violence. The question is not whether to deal with them, but rather how to engage them. In the ICRC perspective, dialogue with armed groups can centre around three parallel and linked goals. First, engaging armed non-state groups will serve to improve access and security for the ICRC in the field and to get a better understanding of the groups. Second, this engagement will serve to facilitate the humanitarian response and actions of the ICRC. Finally, engaging non-state armed groups on more sensitive issues such as the conduct of hostilities and the use of force can contribute to an improved respect of all relevant laws through prevention and integration of the law into the doctrines and trainings of those groups.

This news release concretely illustrates the work of the ICRC in the field. It also shows how the ICRC engages non-state armed groups in a dialogue articulated around access, humanitarian response and an improved respect of IHL. This is only one example among many. However, it is encouraging to see that IHL is being discussed more and more among armed groups as greater respect for IHL can make a huge difference for the populations affected by armed conflicts. Understanding why non-state armed groups chose to respect IHL or not is key to working with them on improving the situation. The article, "Reasons why armed groups choose to respect international humanitarian law or not" is a good starting point to make sense of the actions of non-state armed actors.

Blog Tags:

non-state armed groups

IHL

Guest Writer:

Christophe Gillioz

Challenges of compliance of non-state armed groups: one-way obligations?

hpcr — Mon, 02 Apr 2012 19:11:36 +0000

Blog Type:

IHL in Action

As we write, non-state armed groups (‘NSAGs’, also variously described as‘insurgents’, ‘rebels’, ‘insurrectionists’, etc) are mainly seen as law-takers rather than as law-makers, and thus as objects rather than subjects of international law: they are required to comply with international humanitarian law (IHL) without having had the opportunity to participate in the making of the law. This lack of participation has translated into an imposition of duties on NSAGs which is not matched by the conferral of rights. NSAG members who take part in (non-international) armed conflicts are not entitled to combatant or prisoner-of-war status, and can be punished for their mere participation in hostilities, whether or not they comply with IHL. Therefore, at first sight, compliance with IHL yields few advantages for NSAGs. To remedy this imbalance in the structure of the law of non-international armed conflict, it is key that other incentives for compliance are offered to NSAGs, with full respect for the diversity and motivation of the various NSAGs. The most potent incentive for compliance with IHL is perhaps the promise of a broader acceptance of the legitimacy of their struggle, both domestically and internationally. To obtain this legitimacy, NSAGs may want to be seen to comply with IHL by formally pledging adherence to IHL in various legal instruments. These pledges are performative speech acts in an Austinian sense: they do not simply describe a reality, but by being uttered they transform it. By formally pledging to abide by it, they exhibit an enhanced willingness and expectation that compliance will indeed be forthcoming.

There are a number of legal instruments through which NSAGs can give their actual consent to be bound. All of them—unilateral declarations, codes of conduct, special (bilateral) agreements and multilateral agreements—have their respective advantages and drawbacks. The most important drawback, as with any declaration or agreement, is that a declaration or agreement adopted by an NSAG may not be worth much if it is not backed up by credible compliance monitoring or sanctions. Monitoring and enforcement by independent and disinterested agencies may indeed be considered as the backbone of a genuine ‘rule of law’.

Interestingly, some innovating initiatives have recently been developed to monitor IHL compliance by NSAGs. Notably the Security Council’s Monitoring and Reporting Mechanism, which monitors the IHL record of NSAGs in respect of children in armed conflict, and the NGO Geneva Call’s monitoring of NSAGs compliance with the ‘Deed of Commitment’ deserve mention in this regard. Monitoring may result in naming and shaming recalcitrant NSAGs, but in case of persistent or gross violations, sanctions that bite may have to be contemplated. NSAGs’ and their members’ assets might be frozen, their travel may be restricted or they may be criminally prosecuted, possibly even by courts set up by the NSAG itself.

Blog Tags:

IHL

non-state armed groups

Guest Writer:

Cedric Ryngaert