On December 12

(credit)

On this day in ...
... 1977 (35 years ago today), were opened for signature 2 Protocols Additional to the 4 Geneva Conventions on the laws of war; both protocols would enter into force on December 12, 1978. Protocol I, which relates to the protection of victims of international armed conflicts has 172 states parties, while Protocol II, which relates to the protection of victims of non-international armed conflicts, has 166 states parties. The United States has neither signed nor ratified either treaty.

(Prior December 12 posts are here, here, here, here, and here.)

Internet in bello: more questions than answers

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post)

Berkeley Law and the International Committee of the Red Cross recently posted a written summary and full audio file of a November 2011 seminar held in Berkeley on "The Internet in Bello: Cyber War Law, Ethics & Policy."
Among the many speakers and moderators were these: IntLawGrrls' editor emerita  Beth Van Schaack (below right), since March 2012 the Deputy to Stephen J. Rapp, U.S. Ambassador-at-Large in the Office of Global Criminal Justice; Anne Quintin of the ICRC (below left); and yours truly, Berkeley Law’s Kate Jastram. The keynote speaker was Air Force Colonel Gary D. Brown, Staff Judge Advocate for the U.S. Cyber Command, based at Fort Meade, Maryland. (Prior IntLawGrrls posts.)
Reflecting on how jus in bello norms apply, if at all, to cyber security operations, the main themes of the seminar are sketched below.
Characteristic of the uncertainty posed by cyber capabilities in armed conflict, it was a matter of some dispute whether the issue itself is even significant:
► From one perspective, cyber operations are a strategic development of first-order significance, heralding a revolution in military affairs analogous to the dawn of the nuclear age. In addition to posing new threats, cyber may offer unprecedented opportunities to comply with international humanitarian law/the law of armed conflict (typically abbreviated IHL/LOAC).
► Skeptics point to the profit-motivated hype associated with cyber security issues, and argue that there have been very few examples of serious cyber attacks in the accepted legal meaning of the word.
A recurring question is whether "war" is in fact the correct characterization for most hostile cyber activity, and therefore whether the law of armed conflict is the relevant legal framework. It was agreed both that IHL/LOAC applies to cyber operations in armed conflict, and that not all hostile cyber actions should engage this body of law.
It is difficult to analogize from established international law rules to new and rapidly changing technologies. Cyber’s lack of correlation to physical geography, for example, makes application of traditional rules problematic. While IHL/LOAC is too limited to deal with the full range of cyber security activities, and cyber issues must be addressed in other legal frameworks, it is also the case that IHL/LOAC needs to develop to respond to the capabilities and threats of cyber war.
The most promising, and underexplored, possibility is the potential for a more humane method of warfare.
Reviewing the cyber aspects of some basic definitions, it was agreed that cyber operations causing physical damage would constitute an "attack" under Article 49.1 of Additional Protocol I to the Geneva Conventions of 12 August 1949, which was adopted in 1977 and entered into force 1978. (The United States is not a party but accepts many of its provisions as customary international law.)
Article 49.1 states:

'"Attacks" means acts of violence against the adversary, whether in offence or in defence.'

However, views on "neutralization" under Article 52.2 of Additional Protocol I differ. Article 52.2 provides:

Gotovina's impact on IHL

The International Humanitarian Law Clinic at Emory Law School, for which I serve as Director, has issued a report based on a meeting of military operational law experts with extraordinary breadth and depth of experience in applying and enforcing international humanitarian law (IHL).
The meeting was convened last November 4 to analyze the broader legal issues in and implications of the judgment of Trial Chamber I of the International Criminal Tribunal for the former Yugoslavia in the case of Prosecutor v. Gotovina (April 15, 2011). As detailed in prior IntLawGrrls posts here and here, the judgment focused on Operation Storm, the Croatian operation to re-take the Kraijina region in the summer of 1995.
The Trial Chamber convicted Croatian General Ante Gotovina of war crimes and crimes against humanity on a joint criminal enterprise theory of liability, and sentenced him to 24 years confinement. The ruling rests on two Trial Chamber findings:
► First, that Gotovina ordered an unlawful direct attack by placing “civilian areas” under attack. Although the Trial Chamber found that less than 5% of all artillery and rocket effects were not attributed to lawful targets, it relied on these effects to conclude that Gotovina acted with the intent to deliberately attack civilians.
► Second, that using artillery to attack the building where the enemy's President and supreme military commander resided was a disproportionate use of force, even though there was no evidence of civilian casualties as a result of the attack.
The judgment thus poses challenging questions about the application of IHL to complex targeting decisions involving the use of artillery against a range of military objectives in populated areas during a sustained assault.
The Atlanta meeting grew out of extensive conversations with a range of US and foreign military operational law experts about the application of IHL in the Gotovina judgment. These issues are at the heart of a brief that has been submitted to the Appeals Chamber at the ICTY – that amicus brief will be the subject of my post tomorrow.
Beyond the amicus brief, however, we felt it was essential to explore in greater depth a broader range of legal, institutional, and policy concerns – in particular, the consequences of the judgment’s approach on future military operations, military planning, and the implementation of IHL.
The experts gathered represented a remarkable compilation of military legal and operational experience, with regard not only to the implementation of IHL during the conduct of operations, but also to the broader institutional considerations of training, planning, and doctrine that contribute significantly to the development and maintenance of disciplined and moral fighting force. This operational experience and knowledge brought the concepts at the heart of IHL – and the issues at the heart of the discussion over the Gotovina judgment – into sharp relief.
The report just issued by the Emory IHL Clinic is entitled Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law. It sets forth the experts’ consensus views and concerns regarding the application of the law in the judgment, highlighting four key areas:

Civilians & the collateral damage rule

(Delighted to welcome back alumna Valerie Epps, who contributes this guest post on her paper entitled Civilian Casualties in Modern Warfare: The Death of the Collateral Damage Rule, which she'll be presenting as part of a panel at 9 a.m. this Saturday, October 22, at International Law Weekend in New York)

Members of the armed forces are sent off to war to kill enemy combatants. They are not sent to kill civilians.
We permit the “combatant’s privilege” (soldiers being allowed to kill enemy soldiers) in part because we understand that although civilians may be killed or injured in warfare, this will only happen occasionally when such death and injury is “incidental” to a legitimate attack on a military object. (credit for 2011 photo of U.S. Navy attack against Libya) Under the laws of war, civilians may never be targeted.
The collateral damage rule, as set out in Article 51(5)(b) of Protocol Additional I to the 1949 Geneva Conventions on the laws of war, prohibits

'[a]n attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.'

The collateral damage rule is meant to give protection to civilians in time of war in contexts where military and civilian targets are interwoven.
The latter statement, reflecting the usual assessment of the collateral damage rule, may simply be a method for tricking us into thinking that ethical military commanders, by following the rule, will, in fact, avoid all but incidental damage to civilians. Nothing could be further from the truth.
The nature of warfare has changed fundamentally over the last two centuries. Once inter-state warfare was a predominate type of armed conflict. Now, by far the most prevalent form of conflict is intra-state, or internal, armed conflict. It currently makes up about 90 percent of all armed conflicts.
At the same time, the ratio of military-to-civilian-war-related deaths has undergone a radical transformation. Stanley B. Greenberg and Robert O. Boorstin wrote in their 2001 article, People On War: Civilians in the Line of Fire:

'[I]n World War I, nine soldiers were killed for every civilian life lost. In today’s wars, it is estimated that ten civilians die for every soldier or fighter killed in battle.'

There is much discussion of the accuracy of various proposed ratios -- 10 to 1, 9 to 1, 8 to 1 -- and considerable debate on who should be counted in both military war-related deaths and civilian war-related deaths. Yet no one doubts that in almost all modern wars, civilian deaths outnumber military deaths often by several multiples. While it is true that intra-state wars are generally far less deadly than international wars, the ratio of civilian to military deaths remains disproportionally weighted to civilian deaths.
It may thus be concluded that the collateral damage rule, whatever its intention, is not fulfilling its purpose of protecting civilians in war time.
What should be done, when we find that a legal rule cannot or does not achieve its purposes?
All law tolerates some level of violations and lack of enforcement, but in this case, the problems go deeper. We sense that the world is not about to adopt a rule of pacifism, although that would be the simplest and most effective method of protecting everyone from the devastations of war. Nor doe we sense that the armed forces will completely draw back from attacking military targets if there is even the slightest chance that civilians could be killed or injured.
So what modest suggestions can be made to assist, in some small way, the fulfillment of the collateral damage rule’s wish to protect civilians?
► First, we need to acknowledge that we have a problem.
Wars are not just killing military personnel with a few civilians being killed incidentally. They are killing more civilians than members of the armed forces.
► Next, we could suggest that commanders in the field have Rules of Engagement that restrict severely the amount of acceptable civilian casualties.
Such an approach has had a dramatic effect in reducing civilian casualties in places like Afghanistan, although the military rank and file often protest such rules. (credit for 2008 Associated Press photo at left, by Alauddin Khan, of funeral of victim of suicide bombing in Kandahar, Afghanistan)
► Above all, we need a mandatory system for recording civilian deaths and injuries in war time. (IntLawGrrls' posts on this issue here.)
Although the Geneva Conventions require the recording of details of military personnel who die, are injured, captured or are missing, the requirements for keeping similar statistics for civilians are much less robust and many states do not keep any such statistics. In September 2011, the Oxford Research Group launched the Charter for the Recognition of Every Casualty of Armed Violence, which sets out the requirements for the recording of every casualty of conflict throughout the world. This is bold and necessary step to begin to bring us closer to protecting civilians in warfare, the goal of the collateral damage rule -- a rule that, at the moment, is more often breached than observed.

Civilian participation in armed conflict

(Thanks to IntLawGrrls for the opportunity to contribute this guest post on my paper entitled "Regulating the Irregular – International Humanitarian Law and the Question of Civilian Participation in Armed Conflicts")

It has been over thirty years since the adoption of the 1977 Additional Protocols to the Geneva Conventions of 1949, and sixty since the adoption of the Geneva Conventions themselves. (creditfor ICRC photo of signing of 1949 conventions) These landmark instruments transformed the laws of war in regards to the treatment of non-conventional participants in armed conflicts. Partisan and resistance fighters, as well as persons participating in wars of national liberation, were granted the same kinds of protections – such as prisoner of war status – as their ‘regular’ defence force counterparts.
These changes to the law of armed conflict came about in response to political and social changes in the international landscape. As a law that aims, among other objectives, to protect persons who take direct part in hostilities, it was logical that the law be amended to better reflect the practical realities of the situations it regulated.
However, since the adoption of these instruments, there has been a significant jump in the number and kind of irregular participant currently engaged in armed conflicts around the world. A modern-day battlefield may see the involvement of:
► Private military contractors,
► Organised armed political and criminal groups, and
► Civilians who are taking direct part in the hostilities.
International humanitarian law does not prohibit civilians from taking part in hostilities, but such participation will result in the temporary loss of protected civilian status. Thus, under Article 51(3) of Additional Protocol I, a civilian taking direct part in hostilities will render themselves liable to targeting by the adverse party, for so long as they take direct part in hostilities.
At the time of adopting this provision, the international diplomatic conference convened to debate the protocols declined to further elucidate the parameters of ‘direct participation in hostilities’. (See the conference's Official Records , vol. XV, p. 330.) Article 51 does not go into further detail.
The official Commentary on the Additional Protocols provides the following test:

Civilians must abstain from all hostile acts "which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces."

Even though no reservations were made to Article 51(3), state practice over the intervening years has been imprecise, and occasionally contradictory. This led the authors of the 2006 International Committee of the Red Cross (image credit) study into customary international humanitarian law to declare:

'A precise definition of the term “direct participation in hostilities” does not exist.'

This situation of uncertainty looked to be resolved with the 2009 publication of the ICRC’s five-year long expert research project on the “Direct Participation in Hostilities”.
The study – involving fifty experts drawn from state armed forces, academia, and legal practitioners – aimed to finally determine three fundamental questions. As stated in Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC, 2008), p. 994.):
► (1) Who is a civilian for the purposes of the principle of distinction?
► (2) What conduct amounts to direct participation in hostilities?
► (3) What modalities govern the loss of protection against direct attack?
The Interpretive Guidance further states, at p. 1016, that, in order to qualify as direct participation,

[a] specific act must meet the following cumulative criteria: (1) the act must be likely to adversely affect the military operations of military capacity of a party to an armed conflict or alternatively to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm); (2) there must be a direct causal link between the act and the harm likely to result from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation); and (3) the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).

The process that produced the Interpretive Guidance was noteworthy for the controversies and disagreements that marked the experience. Consensus was hard to achieve. As detailed by W. Hays Parks in this 2010 article, dispute arose over the inclusion of Section IX in the final document. Also disputed was the definition of membership in armed groups, as Kenneth Watkin discussed here.
A considerable number of participating experts requested their names be removed from the final document. The ICRC, in response, ‘took back’ the Interpretive Guidance, and issued it under its own auspices.
However, of particular concern regarding the Interpretive Guidance is the incongruity of the aims of the study into direct participation, and the outcomes.
That is to say, the intention behind the study into direct participation was to clarify when civilians could be considered as taking direct part in hostilities, for the purposes of whether they could be targeted or not. Thus, a party to the conflict, or an individual participant, in making targeting decisions, would have to assess whether the persons in question were legitimate targets due to their direct participation. Indeed, the outcome – a long, detailed and quite complex cumulative test – presents as a series of questions that can only be successfully answered after the targeting decision.
It may well be that such a complex test would prove useful when a targeting decision is being made prior to any active engagement, against a target that is offering no immediate threat – the targeted killing of Osama Bin Laden (left) (IntLawGrrls posts available here) is an obvious example. (credit for FBI photo) However, one must question the utility of this Interpretive Guidance in active hostilities.
It seems exceptionally unlikely that an individual soldier could make such an assessment in a combat situation, under fire, with little time to weigh up whether persons whom they confront in battle are meeting the requisite threshold – of harm, causation criteria, and belligerent nexus.
In short, it seems that the situation regarding civilian and irregular participation in armed conflict remains as controversial and unclear as before.

On June 8

On this day in ...
... 1977, the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), were signed in Geneva, Switzerland. Among the innovations were detailed provisions on treatment of persons in the power of a party to international conflict, in Protocol I, and the explicit extension of international humanitarian law protections to non-international conflicts, in Protocol II. (image credit) Today the treaties have 170 and 165 states parties, respectively. Countries that have signed but not ratified: as to Protocol I, Iran, Morocco, Pakistan, the Philippines, and the United States; as to Protocol II, all of those just listed with the exception of the Philippines.

(Prior June 8 posts are here, here, here, and here.)

Eritrea-Ethiopia Claims Commission: Findings on allegations of rape during armed conflict

The Eritrea-Ethiopia Claims Commission will conduct its final hearing -- the second of two hearings on damages -- on 19-30 May 2008. The EECC was established by agreement of Eritrea (flag below left) and Ethiopia (flag at right), as part of the peace process ending hostilities that broke out in May 1998. The jurisdiction of the EECC is to decide by binding arbitration claims that relate to the prior conflict and “result from violation of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law.” The commissioners are Hans van Houtte (President), George Aldrich, John Crook, James Paul and me, Lucy Reed. A description of the EECC and its proceedings appears at this page of the website of the Permanent Court of Arbitration, the Hague-based institution that serves as the Commission's registrar.
As an arbitration tribunal determining post-war violations of international humanitarian law on a civil rather than a criminal basis, and proceeding with minimal resources and time, the EECC has understandably generated little coverage. It is therefore worth flagging that the EECC has addressed allegations of rape in several awards. (As a commissioner, I cannot comment, but merely quote from or refer to the awards.)
The following virtually identical “Comment on Rape” appears in the Partial Awards in the “Central Front” Claims (Ethiopia’s Claim 2; Eritrea’s Claims 2, 4, 6, 7, 8 & 12) (quoting from the latter, section D, pp. 9-11; footnote omitted, emphases supplied by the Commission):

36. The Commission considers that allegations of rape deserve separate general comment. Despite the incalculable suffering inflicted upon Ethiopian and Eritrean civilians alike in the course of this armed conflict, the Commission is gratified that there was no suggestion, much less evidence, that either Eritrea or Ethiopia used rape, forced pregnancy or other sexual violence as an instrument of war. Neither side alleged strategically systematic sexual violence against civilians in the course of the armed conflict and occupation of Central Front territories. Each side did, however, allege frequent rape of its women civilians by the other’s soldiers.

37. The Parties agree that rape of civilians by opposing or occupying forces is a violation of customary international law, as reflected in the Geneva Conventions. Under Common Article 3(1), States are obliged to ensure that women civilians are granted fundamental guarantees, including the prohibition against “violence to life and person, in particular murder of all kinds,mutilation, cruel treatment and torture . . . outrages on personal dignity, in particular humiliating and degrading treatment.” Article 27 of the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War ... provides:

"Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

"Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution or any form of indecent assault."

38. Article 76.1 of Protocol I adds: “Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault.”

39. We turn now to the specific allegations and proffered evidence concerning rape of civilian women. Both Parties explained that rape is such a sensitive matter in their culture that victims are extremely unlikely to come forward, and when they or other witnesses do present testimony, the evidence available is likely to be far less detailed and explicit than for non-sexual offenses. The Commission accepts this, and has taken it into account in evaluating the evidence. To do otherwise would be to subscribe to the school of thought, now fortunately eroding, that rape is inevitable collateral damage in armed conflict.

40. Given these heightened cultural sensitivities, in addition to the typically secretive and hence unwitnessed nature of rape, the Commission has not required evidence of a pattern of frequent or pervasive rapes. The Commission reminds the Parties that, in its Partial Awards on Prisoners of War, it did not establish an invariable requirement of evidence of frequent or pervasive violations to prove liability. The relevant standard bears repeating ...:

"The Commission does not see its task to be the determination of liability of a Party for each individual incident of illegality suggested by the evidence. Rather, it is to determine liability for serious violations of the law by the Parties, which are usually illegal acts or omissions that were frequent or pervasive and consequently affected significant numbers of victims."

41. Rape, which by definition involves intentional and grievous harm to an individual civilian victim, is an illegal act that need not be frequent to support State responsibility. This is not to say that the Commission, which is not a criminal tribunal, could or has assessed government liability for isolated individual rapes or on the basis of entirely hearsay accounts. What the Commission has done is look for clear and convincing evidence of several rapes in specific geographic areas under specific circumstances.

42. Perhaps not surprisingly, the Commission has found such evidence, in the form of unrebutted prima facie cases, in the Central Front regions where large numbers of opposing troops were in closest proximity to civilian populations (disproportionately women, children and the elderly) for the longest periods of time – namely, Senafe Town in Eritrea and Irob Wereda in Ethiopia. Knowing, as they must, that such areas pose the greatest risk of opportunistic sexual violence by troops, Eritrea and Ethiopia were obligated to impose effective measures, as required by international humanitarian law, to prevent rape of civilian women. The clear and convincing evidence of several incidents of rape in these areas shows that, at a minimum, they failed to do so.

43. For other areas along the Central Front, although there was evidence of occasional rape (deserving of at least criminal investigation), the Commission did not find sufficient evidence on which to find either government liable for failing to protect civilian women from rape by its troops.

The main findings on rape appear in the Partial Awards in Eritrea’s Central Front Claims (paras 80-81); Ethiopia’s Central Front Claim (paras 83-84; Ethiopia’s Civilians Claim (paras 83-90); Ethiopia’s Western and Eastern Front Claims (paras 49-56); and Eritrea’s Prisoner of War Claim (paras. 139-142).