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.

Go On! ILW 2011

(Go On! is an occasional item on symposia and other events of interest)

Next month will see the 90th annual meeting of the American Branch of the International Law Association, for which IntLawGrrls alumna Ruth Wedgwood serves as President.
The meeting, of course, is International Law Weekend 2011, to be held the 4th weekend in October in New York: events on Thursday, October 20, will take place at the Association of the Bar of the City of New York; on October 21 and 22, and at Fordham University School of Law.
Co-chairing the conference are Fordham Law Professor Martin S. Flaherty, Sahra Diament of the U.N. Office of Legal Affairs, and Jill Schmieder Hereau of the cosponsoring International Law Students Association.
Organizers write that the conference, themed International Law and National Politics,

will explore the intersection of international rules and norms and domestic politics and policymaking. To what extent do international standards influence the application and interpretation of national law including complementary or countervailing policies sought by domestic policymakers, non-governmental actors and/or civil society? Expert panels and discussion sessions will examine these and other issues with regard to such diverse areas as human rights and humanitarian intervention, national security, immigration, trade, labor, health care and the environment.

Delighted to see numerous IntLawGrrls contributors on the program: ABILA Vice President Valerie Epps (Suffolk), Chimène Keitner (California-Hastings), Molly Beutz Land (New York Law School), Margaret E. McGuinness (St. John's), Barbara Stark (Hofstra), Jennifer Trahan (NYU), and, of course, ABILA President Ruth Wedgwood (Johns Hopkins).
Registration for the conference, which is free to members of cosponsoring organizations, is here; full program details are here.

Someone give Kristof the U.N. Charter

A recent column by New York Times writer Nicholas Kristof included the following paragraph:

President Obama could also announce that from now on, when Sudan violates the U.N. ban on offensive military flights in Darfur by bombing villagers, we will afterward destroy a Sudanese military aircraft on the ground in Darfur (we can do this from our base in Djibouti in the Horn of Africa).

Huh?

Kristof deserves credit for his columns, which repeatedly pique public consciousness -- and consciences -- about human rights violations in the 3d World and, on occasion, here at home. But paragraphs like that quoted above sap his efforts.

As all international lawyers know, for a country to enter another's air space and destroys its property likely violate the pledge, contained in Article 2(4) of the U.N. Charter, that it shall

refrain in [its] international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

The Charter expressly exempts from this ban uses of force that:

► qualify as individual or collective self-defense meeting all requirements of Article 51 of the Charter (requirements that guest/alumna Valerie Epps analyzed in her recent post); or

► are sanctioned by the U.N. Security Council pursuant to Chapter VII of the Charter.

Neither exception would cover the scenario that Kristof proposes:

► Self-defense does not apply for the simple reason that Darfur is not a U.N. member state; it represents yet another tragic example of a state attacking its own populace.

► There seems almost no chance that all 5 permanent members of the Security Council would vote to authorize the use of force.

One presumes that Kristof -- or whoever suggested this scenario to him -- is operating on the assumption that such a U.S. military foray could be justified as an exercise of humanitarian intervention or its younger sibling, responsibility to protect. Put to one side the fact that just because a state can do something does not mean that it should. Put to one side as well the fact that taking out a Sudanese military jet seems far more like old-fashioned reprisal than an act promising to advance a humanitarian goal. The core legal problem is that no international law -- no customary norm, no treaty provision -- allows either humanitarian intervention or intervention in service of a responsibility to protect. Even commentators favorable to articulation of such a law often limit its scope to genocide, and, rightly or not, both a U.N. Commission of Inquiry and a panel of the International Criminal Court have refused to label the horrors in Darfur genocide.

There seems little doubt that other international offenses -- crimes against humanity and war crimes -- have occurred in Darfur. (map credit) No doubt, then, that the crisis in Darfur deserves all our best efforts. That's why the 1st venture of our California International Law Center at King Hall, UC Davis School of Law, is to partner with the Robert F. Kennedy Center for Justice & Human Rights to craft a framework for peace and reconciliation in that troubled region of Sudan. (See here and here.)

But those who argue for unauthorized military strikes do not make use of best efforts.

Rather than urge yet another American President to order unilateral military action, humanitarians ought to push for collective solutions achieved within the bounds of law.

Guest Blogger: Valerie Epps

It is IntLawGrrls' great pleasure to welcome as today's guest blogger Valerie Epps (right).

Professor of Law and Director of the International Law Concentration at Suffolk University Law School in Boston, Massachusetts, Valerie teaches International Law, The Laws of War, and Immigration Law. She has published widely in these fields.

Valerie earned her B.A. from the University of Birmingham in England, J.D. from Boston University School of Law, and LL.M. from Harvard Law School.

Her many professional activities include service since 2000 as Vice President of the American Branch of the International Law Association, and, from 2003-2004, as Chair of the Section on International Law of the Association of American Law Schools.

Valerie was awarded a Fulbright Distinguished Lectureship for the spring semester 2006 to teach International Law and International Human Rights at Fudan University, Shanghai, China, and also has taught at Boston University Law School, the Legal Studies Department of Brandeis University, and the University of San Diego School of Law’s programs in Paris and Mexico City. She has lectured and served as Co-Director of Suffolk’s Summer Program on International and Comparative Law in Lund, Sweden, and has lectured on Human Rights for the International Bar Association in Dubai, United Arab Emirates, and on International Law for the U.M.K.C.–Suffolk Continuing Legal Education Program in Oxford, England.

During the spring semester 2008,Valerie was a Visiting Professor at Hongik University College of Law in Seoul, South Korea, where she taught International Law and International Human Rights. Her guest post below discusses an article she published during that visit; it refutes the assumptions underlying the "Bush Doctrine" of preemptive -- indeed, preventive -- war.

Heartfelt welcome!

Rejecting the Supposed Right of Anticipatory Self-Defence

(In this guest post Valerie Epps discusses her article recently published at Northeast Asian Law Review 1 (2008) and available here)

During the spring semester 2008, I taught international law and human rights at Hongik University College of Law in Seoul, South Korea, as a visiting professor. During the semester, Professor Lyou Byang Woon organized a conference on various aspects of the laws of war and asked participants to contribute an article to Hongik's law review. This article was the result.

Ever since the administration of former U.S. President George W. Bush announced the “preemption” doctrine as one of what was to become many attempts to justify the U.S. invasion of Iraq, I had been surprised that virtually all, if not all, of the criticisms of preemption had, nevertheless, accepted the doctrine of anticipatory self-defence. I have never been happy with anticipatory self-defence for all of the usual reasons:

► It doesn’t comport with the language of Article 51 of the Charter of the United Nations, which states:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

► I don’t believe the Caroline doctrine (prior IntLawGrrls posts) in fact accepts anticipatory self-defence.

► I don’t think that Article 51's reference to the “inherent” right of self-defence was meant to incorporate anticipatory self-defence into the Charter.

► The doctrine cannot satisfy necessity or proportionality requirements of self-defence.

… And so on.

But more than all of these well-worn arguments, I had become convinced that the decisions of the International Court of Justice (logo at left) in the Nicaragua, Oil Platforms, and DRC cases, although not discussing anticipatory self-defence, practically ruled it out by implication. Those three cases all interpreted Article 2(4) of the Charter, which states:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

In each case the ICJ held that even if a state suffers an illegal use of force against it by another state that violates Article 2(4), the victim state does not get a right of self-defence unless the use of force reached a certain level in gravity and scale. In other words, even suffering low-level uses of armed force doesn’t give rise to a right to self-defence.

If that is so, I thought, how could a state that had not yet suffered any use of force against it possibly have a right of self-defence?

This logic led me to investigate language of the Charter and the commentary of scholars contemporary with its drafting. I was not surprised to discover that most of them were quite clear that the Charter meant to prohibit anticipatory self-defence.

The article examines the pre-Charter law on the use of force; the drafting and language of the Charter and the international legal cases that address self-defence. I conclude that international law prohibits anticipatory self-defence, and thus leaves no doubt that the use of preemptive force is illegal.

Three Narratives of Medellín v. Texas

Much ink has already been spilled about the Medellín v. Texas decision – the subject of my IntLawGrrls guest post – with much more to come. (For a summary of the case and its holding, see my ASIL Insight here.) The first published law review symposium on the case was convened by Professor Valerie Epps for the Suffolk Transnational Law Review and included important contributions from Bill Schabas, Christina Cernas, John Murphy, Jordan Paust, John Cerone and Craig Jackson. I have argued elsewhere that the story of Medellín is one of the Vienna Convention on Consular Relations (VCCR) being exploited as a “norm portal” that has permitted transnational advocacy groups to contest American exceptionalism on the death penalty. Building from that work. my own modest contribution to the Suffolk symposium, Three Narratives of Medellin v. Texas, views the case through a wide lens which sees the Supreme Court decision as part of a broader story of international legal process:

Analysis of Medellín is likely to fall into one of the three narratives to have emerged from the arguments of the parties, the briefs of amici, and outside commentary: (1) Internal/Constitutionalist: Draws on the U.S. Constitution as the final word on applicable law and modes of judicial interpretation in the case; (2) External/Internationalist: Looks to the tenets of public international law to identify first order principles for understanding the case and appropriate judicial outcomes; and (3) Transnational/Intersystemic: Seeks to explain Medellín through the phenomenon of multiple, interactive systems of law through which changes in normative behavior occur. While the first two narratives dominated the parties' submissions to the Court and form the space within which much of the academic debate has taken place, it is the third narrative that provides a more complete story of how a death penalty case in Texas came to be litigated before both the ICJ and the Supreme Court.

Medellín represents an excellent case study for process-oriented theories of how international human rights norms move across national borders and between and among local, national and transnational actors and provides important detail about the domestic and international mechanisms that promote norm integration and, significantly, can serve as barriers to norm integration. That this case is fundamentally a result and reflection of U.S. death penalty exceptionalism is broadly recognized by the foreign states that have challenged the U.S. at the International Court of Justice (ICJ), even though they sought to address the death sentences against their nationals through the seemingly neutral procedural device of consular notification. I don’t mean to suggest that the questions of presidential power, federalism, self-execution of treaties and ICJ enforcement powers at the heart of the case (and the Internal/Constitutional and External/Internationalist narratives) are uninteresting or unimportant. Rather, I am arguing that they are merely one part of the story, representing doctrinal spaces in which the underlying question of American exceptionalism to international human rights regulation is being contested.
To illustrate these disparate processes and actors at work, here are two examples from recent press accounts of the case. The first is a May editorial in the Corpus Christi Caller-Times calling on Texas to do the right thing and grant José Medellín (above left) the additional hearing that the ICJ held was required to remedy the breach of the VCCR notification provisions at the time of Medellín's arrest:

Medellín deserves his justice, but the United States has its obligations, too. The obligation is to honor the treaty it agreed to when it signed the 1963 Vienna Convention. That agreement says that when people are arrested abroad, they have a right to have access to consular officials from their own country.
That right protects Americans, too. And perhaps Americans in particular because thousands of Americans travel abroad on vacations, on family trips and on business. Being arrested and detained by foreign police, being put in a foreign jail, under strange laws can be frightening. Americans under arrest have the right to access American consular officials because of treaty obligations. But if the United States ignores those obligations, so can foreign countries.

[snip]

It’s highly doubtful that holding a hearing on the violations would change the outcome of the prosecution. Medellin’s prosecution seems to have followed every required step that state law requires. But ordering a hearing would satisfy the process of the international treaty and more importantly send the message that the United States takes treaty obligations seriously.

To get a flavor for how the issue plays out with the Corpus Christi readership – including how the question of consular reciprocity gets wrapped up with local prerogatives over the death penalty and perceptions of fairness of foreign criminal justice systems – check out the comments section below the editorial. At a minimum, the expressed "local" interest – in this case a community made up of a large active and retired military population, close to an international border – provides evidence for why we ought to be skeptical of rational choice reciprocity analysis of why states obey international law that takes into account only an aggregated or monolithic "national interest."
The second example is from the ICJ’s press release citing to the Mexican Government’s request of last month for interim measures seeking to compel the U.S. to comply – where the Supreme Court declined to do so – with the Avena decision:

Mexico explains that "while the United States may use ‘means of its own choosing’ under paragraph 153 (9) [of the Court’s Judgment], the obligation to provide review and reconsideration is not contingent on a success of any one means. As a result, the United States cannot rest on a single means chosen; it must provide the requisite review and reconsideration and prevent the execution of any Mexican national named in the Judgment unless and until that review and reconsideration is completed and it is determined that no prejudice resulted from the violation". Mexico further asserts that "requests by the Mexican nationals for the review and reconsideration mandated in their cases by the Avena Judgment have repeatedly been denied". It also states that "on 25 March 2008, the Supreme Court of the United States determined in the case of José Ernesto Medellín Rojas . . . that the Judgment itself did not directly require U.S. courts to provide review and reconsideration under domestic law" and that "while expressly recognizing the United States obligation to comply with the Judgment under international law, [it] further held that the means chosen by the President of the United States to comply were unavailable under the U.S. Constitution and indicated alternate means involving legislation by the U.S. Congress or voluntary compliance by the State of Texas". Mexico adds that "it understands the United States obligation under paragraph 153 (9) to extend to taking the steps set forth by the Supreme Court, including legislative action at the federal or state levels or compliance by state courts or the state legislatures".
In its Request for interpretation, Mexico goes on to explain that, since the decision of the Supreme Court was issued, "Texas . . . has scheduled Mr. Medellín for execution on 5 August 2008". It insists that "the actions of Texas, a political subdivision of the United States, engage the international responsibility of the United States" and that "the United States cannot invoke its municipal law as justification for failure to perform its international legal obligation under the Avena Judgment". It also observes that "at least four more Mexican nationals are also in imminent danger of having execution dates set by the State of Texas"

It is in this push and pull of the local, the national and the international that norms of behavior will emerge. Viewed from this perspective, there is no claimed superiority of the national or the international, the doctrinal or political, but an ongoing process through which shifts in human rights behavior may be achieved.

(Cross-posted at Opinio Juris blog)