Tag: international law (page 2 of 5)

Podcast No. 13 – A Conversation with Nick Onuf (mp3)

The thirteenth Duck of Minerva podcast features Nicholas Onuf. Nick is one of the “founding parents” of contemporary constructivism. His book, World of Our Making: Rules and Rule in Social Theory and International Relation  — which has been reissued by Routledge — introduced the term to describe an approach to the study of world politics. Continue reading

Podcast No. 13 – A Conversation with Nick Onuf (m4a)

The thirteenth Duck of Minerva podcast features Nicholas Onuf. Nick is one of the “founding parents” of contemporary constructivism. His book, World of Our Making: Rules and Rule in Social Theory and International Relation  — which has been reissued by Routledge — introduced the term to describe an approach to the study of world politics.

The podcast is wide-ranging — part of oral history, part interview, part discussion — such that I’ve had difficulty figuring out how to insert chapters. If you’re listening via m4a, you’ll see that the podcast has only a few chapter titles. “Enter Constructivism,” for example, contains not only information about World of Our Making but also about the state of the field in the 1980s, the rise of liberal institutionalism, and so on.

Continue reading

International Law and Armed Conflict (Syria version)

The International Committee for the Red Cross (ICRC) recently determined that the situation in the entire country of Syria can be classified as a non-international armed conflict.  While this may not have been news to many watching events unfold there, what makes this statement interesting is that this position differed from the position advanced in May 2012 by then ICRC President Jakob Kellenberger.  At that time, Kellenberger claimed that parts of Syria could be classified as an “internal” armed conflict, particularly in the area around Homs and in the Idlib district.  The difference may appear inconsequential, but may in fact have some significant impact on the ground.  The difference between whether an entire country is embroiled in a non-international armed conflict versus specific locations within that country has bearing on what constitutes a violation of international law.  The two main bodies of international law relevant to armed conflict are international humanitarian law (IHL) and international human rights law (IHRL).  IHL is the body of law which governs armed conflict and is only triggered when there is an armed conflict.  IHRL generally applies in peacetime, although it can apply during war time as well.  What is interesting about Kellenberger’s statement is that it is a departure from how IHL has traditionally understood territoriality within the context of non-international armed conflict. Continue reading

Landmine Advocacy From The Digital Archive

I am preparing to leave for a week to conduct participant-observation research at the The Third Meeting of States Parties (3MSP) to the Convention on Cluster Munitions (CCM) in Oslo. As I prepare my remarks for the Youth Meeting, which I understand is supposed to be one of my more inspirational talks, I’ve been looking up old advocacy videos on YouTube and I came across this 2006 landmine campaign ad which I’d never seen before. It was apparently so controversial that it received almost no airtime in the United States.

R2P and the “Double-Standard Problem”

Jean-Baptiste Jeangène Vilmer (writing at the Fair Observer) argues that there’s no double-standard problem because the Libyan intervention did not establish or reflect a generalized responsibility to protect.

The R2P is a slogan that has some media efficacy but a rather dubious legal existence. That does not prevent the majority of observers asserting that it was the basis of Resolution 1973, authorizing intervention in Libya. That is not true either. The Resolution reiterated the internal responsibility “of the Libyan authorities to protect the Libyan population”, but nowhere did it speak of an external responsibility of the international community to intervene. This does not imply that the concept did not play a role in the motivations of certain permanent members, only that it is not considered as a consensual “norm” worthy of being explicitly mentioned. 

The military intervention in Libya did not represent an implementation of a purportedly universal “responsibility to protect”, but an ad hoc consensus among powerful states. Moreover, it was motivated by both humanitarian reasons and national interests, as British Prime Minister David Cameron explained in his March 18 speeches evoking the security risk for Europe, posed by terrorist threats and potential migration pressure. It is also a question of moral image and political gain. Nicolas Sarkozy used the intervention to consolidate his presidential calibre and keep the failures of French diplomacy in Tunisia and Egypt out of the limelight.

I definitely agree that the intervention was an ad-hoc arrangement where a combination of principles, interests, and opportunities facilitated intervention, but I’ll leave the rest to international-law scholars.

Check it out.

Social Media and International Law

I have an essay online this morning at Opinio Juris as part of a symposium they are running this week on social media and international law:

One of the most curious aspects of the Kony2012 campaign is its backing by an important and powerful public servant, Luis Moreno-Ocampo. In publicly endorsing the campaign, Moreno-Ocampo, the chief prosecutor for the International Criminal Court, has espoused a powerful causal hypothesis: that social media campaigns are an indispensable new tool for the promotion of international justice. In the original Kony2012 video Moreno-Ocampo states: “We’re living in a new world, a Facebook world, in which 750 million people share ideas, not thinking in borders.” In the follow-up video, Beyond Famous, Moreno-Ocampo repeats the message: “We are changing the world, guys. This is completely new.”

Moreno-Ocampo’s enthusiasm for the campaign and for Invisible Children can be understood partly in terms of public relations for his own institution, and for the synonymity of IC’s narrative with the one underlying his own indictment of Joseph Kony for crimes against humanity. But his claims that campaigns like this will decisively shift public attention (and therefore policy attention toward international law and justice and the global institutions that promote them) deserve critical inquiry.

And we need to break this down a bit. Does social media impact citizens’ appreciation of and understanding of international law as Moreno-Ocampo implies? These are two separate questions and two separate processes. Even if they both hold true, does this imply that policy-makers will listen? And if that’s true, then in a world where social media and international law are routinely utilized and invoked by actors on both sides of any political issue, can we assume the net gain for human security will be positive? I don’t know the answers, but it’s worth thinking the questions through a little more carefully.

Some questions I ask:

1) Does social media impact citizen engagement with global social issues?

2) Does “citizen engagement on social issues” (where we see it) necessarily equate to “citizen understanding”?

3) What is the relationship between citizen engagement and citizen understanding, and what engagement/information ratio is most helpful in generating political will for international law enforcement?

4) How much does citizen engagement matter anyway?

5) To the extent that social media empowers the public, and the public empowers policy-makers, can we assume this will result in the promotion of human security and international law?

6) What do we mean by “promoting international law” anyway?

7) In an era of social media that empowers advocacy claims both consistent with and at odds with the spirit of international law, what is the best advocacy formula for mobilizing support for the implementation of international law to protect human security?

Read my answers here or leave your own in comments on either thread.

Transnational Politics, i(I)r(R) and the Information Age

Today I presented some thoughts on Henry Farrell‘s International Studies Association panel on “Transnational Politics and the Information Age.” The panel, which included Joe Nye, Dan Drezner, Marty Finnemore and Abe Newman, looked at the subject fairly broadly:

Public debates over the politics of the information age have been dominated by a battle between cyberoptimists, who believe that the Internet will lead to a fundamental transformation of social relations and cyberpessimists, who claim that the Internet will either have no effects or harmful ones. These debates partially map onto international relations arguments about the relationship between state power and globalization. Yet there is little work in international relations, which seeks to analyze the relationship between information flows and global politics. This is all the more remarkable given that information politics (whether the dissemination of sensitive government cables by Wikileaks, or the role of new media in the “Arab Spring”) seems to have direct, and sometimes dramatic consequences for central IR concerns. In this roundtable, we bring together scholars to examine in more depth the relationship between information technology and transnational politics. How has the rise of digital networks facilitated cross-border political organization or has it ultimately re-empowered the nation state? In either case, what points of variation exist in the political dynamics that have been unleashed? The distinguished participants offer a range of theoretical and empirical perspectives to this core debate concerning the relationship between information technology and global politics.

In honor of the conference theme, I uploaded my presentation to YouTube.

The discussion afterward ranged all over – topics included wikileaks, cybersecurity, pedagogy, etc. A fair amount of time was spent discussing Kony2012 though and one question that none of us really answered very well was what exactly makes videos go viral, and whether narrative structure matters. After the roundtable Michele Acouto sent me this TED video by tweet which I thought worth sharing.

Targeting in Armed Conflict: DPH, CCF, WTF?

Usually when I blog about drones and extrajudicial execution, someone leaves a comment to the effect that terror suspects are “legitimate military targets” under the re-envisioned laws of war. The question of whether they are or aren’t is a bit tricky, but since the number of bloggable stories is vastly outweighing the time I have to post at present, I’ve called in my colleague Betcy Jose to explain. – Charli Carpenter

Guest Post by Betcy Jose, University of Colorado-Denver


You’re a sniper in the armed forces of your country which is in the midst of a civil war. Among the following choices, who could you permissibly target under international law?

A. A hacker who is disrupting vital communications occurring on your military’s computer network during the slower parts of War Games.

B. A rebel fighter who’s fallen asleep during night watch.

C. Child soldiers in the midst of training exercises in preparation for their first experience in combat.

D. The leader of the opposing armed group who is attending the funeral of the second in command.

What’s your answer? Scratching your head in uncertainty? Well, to be fair, it’s a trick question because the answer is all of the above. Let me try to explain how.

Choice A: International humanitarian law (IHL), the body of law which governs the conduct of armed hostilities, requires belligerents to refrain from intentionally targeting civilians. This is the distinction principle which is part of the civilian immunity norm. However, IHL does allow for the targeting of civilians while they directly participate in hostilities (DPH). DPH is how you’re supposed to distinguish between permissible and impermissible civilian targets. DPH includes using weapons, collecting intelligence, and disrupting/damaging critical computer networks. Once civilians lay down their weapon or stop hacking into military networks, they are no longer targetable. So, you can target the hacker while s/he is trying to hack into your military’s computer system, even if s/he did it out of boredom. But s/he regains immunity once the hacking stops.

Choices B, C, and D: The people in these scenarios are also targetable in a non-international armed conflict, but for different reasons from those governing the targeting of the civilian hacker. The people in these scenarios would be targetable because they have a continuous combat function (CCF), and they are not considered civilians.

The ICRC came up with this concept in response to claims by state actors that relying solely on a DPH method of distinction to determine permissible targets advantaged rebel groups. States argued they could only target rebel fighters when they were engaged in DPH. Why was this problematic? Because since rebel fighters are not members of state armed forces, they are civilians. Thus, they regain their immunity once they drop their weapons, only to return to fight state armed forces another day. So the ICRC, which is charged with developing IHL, came up with CCF in the hopes of addressing these state concerns while maintaining the protections offered by the civilian immunity norm. Here’s how it works:

A member of an organized armed conflict has a CCF if that role entails sustained direct participation in hostilities. This definition essentially addresses the concerns raised by state actors. Individuals who possess a CCF are targetable as long as they hold this role in an organized armed group. That’s why the rebel leader can be targeted while attending a funeral even though s/he may not be engaged in hostilities at the moment. Organized armed groups can be those that are aligned with the state as well as those that act against the state. The category doesn’t require a particular position in the armed conflict, just a degree of organization in order to distinguish it from rebellions or insurgencies which IHL does not cover.

Thus, while DPH and CCF may seem like distinct methods of distinguishing between permissible and impermissible targets during a non-international armed conflict, the two are connected. CCF also maintains civilian immunity by requiring states to be selective in their targeting of the opposition. They can target a person who holds a CCF anytime, but they can only target civilians while they DPH.

This is all well and good. But if you’re still scratching your head, join the club. The utility of this category is hotly debated and the Guidance is not universally endorsed by states. Humanitarian actors are concerned that states can manipulate these rules to further their objectives at the expense of civilian populations. Thus, how well these categories advance their intended aim of protecting civilians who have the misfortune of finding themselves in the heat of battle is a question that’s hard to answer.

More on Gotovina

Ante Gotovina

Last week I wrote about targeting and mentioned the Gotovina Case. This case has become interesting for those interested in international law and post-conflict justice because of the decision of the court (among other things) effectively states that a 4% error rate in targeting in a complex military operation was tantamount to a war crime.

As I said in the post, the decision prompted several laws of war scholars (many of whom were former JAGs) to have a roundtable at Emory University on the decision and subsequently write up an amicus brief  supported by 12 international law experts from the US, Canada and the UK which was submitted to the appeals chamber at the ICTY. This prompted a response from the prosecution which may be read here.

What I didn’t realize, however, was that the Court was deciding that day to reject the amicus. You can read their decision here.

I must admit that going through the Court’s decision does not inspire confidence. That the decision begins with a discussion about the word length is… like something I might write at the END of my comments on a student essay.

Next, in the brief “Discussion” of the merits of the arguments, the court briefly states that it is “not convinced that the applicants’ submissions would assist in determining the issues on appeal”, and invokes procedural rules for submitting evidence. It further states that the amicus brief is problematic because it does not identify the fact that one of the authors, Geoff Corn, was an expert witness for the defence. Given that this later point should have been pretty obvious and they are already lecturing the authors for going over the word limit, you wonder how this should have been done? Or why this is a matter of substance in deciding the merits of the worth of the amicus?

Either way, the Court uses these points to reject the amicus in a brief dismissal that I find wanting. Disappointingly, the amicus has been dismissed on rather procedural and technical grounds. And this is important: if international courts are going to be making controversial decisions suggesting that a 4% error rate is tantamount to a war crime and if they reject advice on this matter because someone didn’t explicitly attach a CV to an amicus that violated the 10% +/- rule, I am concerned. And you have to wonder what kind of message this send to countries thinking about signing up to war crimes courts/trials?

Regarding my post from last week, Geoff Corn responded in the comments to direct readers to his SSRN paper on the matter. I would definitely recommend interested Duck readers to take a look.

Clearly, Gotovina remains a case that should be closely watched. The man himself remains a controversial figure. Being concerned with his trial is not to say he is not guilty of some crimes. However, it is clear that many experts in this area are concerned about logic employed by the ICTY on several important aspects of the case and the future implications of war crimes trials.

I look forward to more reaction from the amicus authors and other scholars on this matter.

The Constructivist Peace: Shared Norms and Pacific Relations Among Human Rights Abusers

Timothy Peterson and Leah Graham recently published a study in the Journal of Conflict Resolution showing that, after you control for the democratic peace, similarities in human rights performance have an important effect on any two countries’ likelihood to go to war. The interesting caveat is that this finding holds true for states that abuse their citizens as well as those that don’t:

Although mutual norms of domestic non-violence are more pacifying than mutual disregard thereof, the authors argue that a wide disparity in norms is more aggravating than shared norms… that norm asymmetry is aggravating provides evidence for an “‘abusers’ peace…” Our results suggest the possibility for conflicts arising between newly democratic, human rights-supporting states and their more oppressive, authoritarian neighbors… It may be that installing an “outpost of democracy” within an authoritarian region and enforcing improved respsect for human rights on the domestic population will lead to increased regional violence.

Peterson and Graham are building on two earlier studies augmenting the democratic peace thesis by exploring the specific impact of human rights performance on war. IR scholars have long noted that democratic states almost never fight one another, but there is much debate over why. Although IR liberals have long treated “ideological commitment to human rights” as one of several “pillars” or indicators of the liberal peace, Mary Caprioli and Peter Trumdore showed that human rights performance alone is actually a good predictor of interstate violence even controlling for regime type. A separate study by David Sobek, M. Rodwan Abouharb and Christopher Ingram demonstrated that states with good human rights records, were more peaceful with one another regardless of democracy. Peterson and Graham’s study extends this finding in one more direction, arguing it is indeed dyadic norms that matter, but that there exists an “abusers’ peace” as well as a “human rights peace.”

The findings themselves should be critically analyzed and replicated further: among other problems they all rely on different and imperfect indicators of human rights performance (for a critique of quantitative data-sets on human rights see this article). However as a whole this line of research suggests two modest challenges to democratic peace theory.

First, it suggests that democratic institutions per se may be far less important in mitigating interstate war than a cluster of human rights norms that can include but are not limited to the “empowerment rights” associated with democracy. Second, it suggests that the causal mechanism translating adherence to these norms into pacific relations is not liberal but rather constructivist: a set of shared identities that can constitute shared interests among human rights abusers as well as champions, lessening the likelihood of violent conflicts. And at the level of policy, these studies do indeed encourage an emphasis on diffusing norms within neighborhoods rather than changing the regimes of specific states, if the goal is to achieve both rights and security.

Blind Men, Elephants and Drones

There are many good reasons to read David Scheffer’s All the Missing Souls: its insider story of the war crimes trials, written by one of their architects, the in-depth case studies on Bosnia, Rwanda, Cambodia, the impassioned defense of international justice as a moral idea.

But the part I found most useful is in the post-script, where Scheffer re-articulates his theory that we need a new concept to describe the types of crimes dealt with by the emerging law of war crimes tribunals, because these types of “mega-crimes” fall at the intersection of a patchwork of broader legal regimes, leading to conceptual confusion:

“Diplomats, jurists, lawyers and journalists describe the law governing atrocities as international criminal law, international humanitarian law, international human rights law, or the laws and customs of war.

Yet none of these long-standing fields of international law suffice to describe comprehensively the legal framework of the war crimes tribunals. No term describes how the crimes being prosecuted should be described collectively. Where is the term that easily and accurately describes the totality of these crimes so that both dialogue and action can coexist?

Why care? Because clarify and cimplicity in law promote public understanding and support for the pursuit of justice… if we can discover such a term, it might help avoid the paralysis that overtakes bureaucracies mired in definition hunting rather than effective responses to evil.” – Scheffer, p. 425

I like this venn diagram because it’s a useful teaching tool for distinguishing legal traditions that often confuse students. But I’ve also been thinking about whether Scheffer’s insight – meant to help analytically with a set of crimes that are already being prosecuted – can also help us think about public debates about whether certain actions constitute potentially judiciable crimes.

For example, how might this come to bear on the central problem in the targeted killings debate: the fact that no single legal regime holistically covers the kind of international legal problem posed by the US’ assassination campaign abroad? For law of armed conflict types, the question is whether the weapons themselves violate the law (I think not) and/or are being used by the appropriate actors (it depends), consistently with the principles of proportionality (it depends). From a human rights law perspective, these are summary executions plain and simple, but it’s tricky because if war law applies (I think not) then some of these provisions are arguably murkier. In terms of humanitarian law, which also outlaws summary executions of both civilians and noncombatant soldiers even in time of war, a question is whether the targets are non-combatants when targeted (I think generally yes). Since commentators can bicker over which of these regimes applies, the question of international criminal culpability, either by specific pilots or by national leaders rarely comes up.

How would the concept of “atrocity law” help? Does the US’ “targeted killings” campaign constitute the type of international crime that could be construed as falling unquestionably at this intersection? I don’t know but I’ll punt this to readers: have a look at Scheffer’s definition (pp 429-430):*

“These are high-impact crimes of severe gravity and a highly orchestrated character, that shock the conscience of humankind, result in a significant number of victims or large-scale property damage, and merit an international response to hold at least the top war criminals accountable under the law.”

The definition is vague and subjective of course, but that is part of its utility, at least as a means of popularizing the core of this emerging legal nexus in the media and popular discourse (a nexus that lacks a single codified body of law itself). A piece of that core is the notion (which as precedent in the Martens Clause of the 1899 Hague Convention) that a measure of what makes certain things unlawful when their technical legality is contested is the extent to which they “shock the collective conscience.”

I think there is significant and mounting evidence of normative opposition to the targeted killings campaign (regardless of arguments some may make about its technical legality under different legal traditions), and according to even the most conservative estimates it meets the other criteria of a significant number victims and large-scale damage. No one can doubt it’s highly orchestrated character.

I wonder if others who generally oppose “targeted killings”** think the concept of “atrocity law” might be a more useful way of framing this problem publicly than talking about “war crimes” or “human rights” specifically – concepts that by their nature draw the listener’s attention to a legal regime that only partially bears on the activity in question and invites contrasting legal views drawn from contrasting legal regimes. Perhaps we can use Scheffer’s concept to combat the “blind men and the elephant” problem with respect to the drone debate. Thoughts?

*As a disclaimer I should say I am less enthused about Scheffer’s more specific criteria for this concept, which in a number of ways don’t mesh well with this general definition and defeat his goal of simplifying by introducing unhelpful redundancies.

**I recognize that not all readers of this post will fall into this category.

Drone ‘Wars’?

The Bureau of Investigative Journalism has released a new report alleging that CIA-piloted drones have regularly attacked rescuers and funerals as well as high-value targets – a damning claim given Obama’s recent assertion to the contrary in his digital town hall meeting.

The report correctly suggests that in the context of international humanitarian law, intentionally targeting individuals who come to the rescue of victims would be considered a violation of the rules of war.* But in doing so, and in using the term “drone wars” to describe this campaign of executions, the BJI also inadvertently legitimizes the very discourse it is critiquing: the notion that these killings are justifiable because we’re at war. And as I’ve argued before, the focus on drones also continues to obfuscate the principal problem here, which is not the weapons themselves but rather the fact that the US is engaged in a massive transnational campaign to execute suspected criminals without trial.

This would be bad enough even without the significant “collateral damage” that appears to be a consequence of these strikes. It would be bad enough even without argument that the US is targeting civilians and aid workers. And invoking the laws of war to critique those behaviors – which indeed are war law violations if we’re at war – implicitly legitimizes that very idea, which in fact the anti-drone lobby wants to refute.

It’s no wonder that the more the anti-drone lobby condemns “drone wars,” the less trouble the Obama Administration has justifying its actions.

Precision Guided Words? Libya and International Law

Guest Post by Betcy Jose-Thota, Assistant Professor, University of Colorado-Denver.

According to al Jazeera’s English language website, French President Nicolas Sarkozy and Mahmoud Jibril, head of the National Transitional Council, met on Wednesday to discuss what a post-Gaddafi Libya would look like. After the meeting, Sarkozy told reporters that NATO would continue its military operation in Libya as long as Gaddafi remained a threat, stating:

“We will continue acting within the mandate given to us by the UN to protect civilian forces.”

If President Sarkozy was not misquoted, his pronouncement contains two misstatements about both the NATO mandate and international humanitarian law.

UN Security Council Resolution 1973, the resolution under which NATO is conducting its military operations in Libya, enables

Member States… acting nationally or through regional organizations or arrangements… to take all necessary measures… to protect civilians and civilian populated areas under threat of attack…

By its plain language, UNSC Resolution 1973 authorizes member states to use force to protect civilians, not civilian forces as Sarkozy states. “Civilians” and “civilian forces” are two distinct concepts as the following discussion (hopefully) illustrates.

International humanitarian law (IHL), the body of law which regulates armed conflict, obligates belligerents to distinguish between civilians and other belligerents. This is the so-called distinction principle housed within the civilian immunity norm. Once belligerents make this distinction, IHL prohibits them from deliberately targeting civilians. To do so is a war crime.

However, it’s not as simple as that. Not all civilians are protected from deliberate attack under IHL. And this is where Sarkozy commits his second misstep. According to the 1977 Additional Protocol I to the Geneva Conventions civilians lose the protections of the civilian immunity norm when “they take a direct part in hostilities.” When civilians directly participate in hostilities, they can be targeted. Deliberately targeting such civilians is not a war crime.

So, when is a civilian considered to be directly participating in hostilities? Well, this is a dissertation-worthy question, too complex to be tackled within the confines of a blog post. Suffice it to say that the ICRC offers its explanation for what this phrase means in its Interpretive Guidance for Direct Participation in Hostilities under International Humanitarian Law. Based on this document and past practices, civilians engaging in armed resistance, like those in “civilian forces”, would likely lose their protections under IHL. They would not be the civilians for which UNSC 1973 enables the use of force to protect.

So what’s the significance of this legal rambling, you ask. Well, it means that NATO soldiers can use lethal force against civilians who use armed force against them. It also means NATO doesn’t have to put its soldiers in jeopardy to protect civilians who engage in armed force.

Sarkozy isn’t the only one who’s misstated IHL. That the lack of clarity is so widespread on this issue of when civilians can or cannot be targeted during armed conflict is precisely the reason why the ICRC had to issue its Interpretive Guidance. It will be interesting to see whether (and if so, how) this confusion may manifest in the ICC’s investigations into possible war crimes in Libya.

Punishment Over Peace?: Gaddafi in a Post-Amnesty World

It has been five months since protests in Tripoli sparked widespread ‘civil unrest’/war, a NATO enforced no fly zone, and partial (and unclear) international interventions. Rough death toll figures range from 10,000-30,000. Perhaps the biggest uncertainty is how this will all end. While there is some hope that rebel forces will tip the balance of power, Gaddafi’s forces are strong and have made recent advances.
One possibility that hasn’t been readily considered is the potential benefit of granting Gaddafi amnesty in exchange for a peaceful end to the civil unrest. So why isn’t amnesty being seriously considered by the international community?
There are multiple possible answers; however it is worth considering Libya as part of a ‘post-amnesty’ international justice agenda focused on prosecution. It seems that transitional justice has become a norm, based on the assumption that ‘true peace’ cannot be sustained without justice. I’m not arguing amnesty is the best option- but it is worth thinking about why amnesty has increasingly become an international taboo.

When put in a broader historical context, the current situation in Libya might be seen as a typical example of when amnesty should be considered. Yasmeen Naqvi explains that “amnesties for war crimes and other international crimes come into being mainly when states are going through periods of transition, often from war to peace, and of extreme political upheaval, for example, the handing over of power from military regimes to democratic civilian governments.”
Amnesties used to be more common, they were seen as a accepted part of peace negotiations, and a worthy compromise between the desire for peace and reconciliation and the desire to seek justice and retribution.
Since the end of World War II well over 420 amnesties have been introduced as mechanisms for achieving peace, with recent examples including provisions within the peace negotiations in Sudan in 1997, the 1999 Lusaka Ceasefire Agreement in the Democratic Republic of Congo, and both the Abuja and the Lome Peace Accords in Sierra Leone in 1996 and 2001.
Arguments in favor of amnesty have included the claim that, in many cases of war, peace could never be attained without amnesty (check out Michael Sharf’s work for more on this).
The principle of amnesty is even enshrined in international law, with Article 6(5) of the Additional Protocol II of the Geneva Conventions stating, “[a]t the end of hostilities, the authorities in power shall endeavor to grant the broadest possible amnesyt to persons who have participated in the armed conflict.”
Despite the historical precedence of its use, amnesty has increasingly come under criticism; it is now seen as fundamentally add odds with, and detracting from human rights and international law. But history tells us that amnesty has a place in ending violence. Might it be worth setting aside our desire to punish and set judicial examples in order to allow for a re-examination of the value of amnesty….in the name of peace?

Cutting Edge Research on Popular Views of War Law

My Rules of War class this past Spring was an Honors version of the course, and to challenge my students I asked them to do original research on popular conceptions of international humanitarian law, an issue the International Committee of the Red Cross takes quite seriously. The assignment was to identify a concept in the rules of war, gain a firm understanding of the law, then identify a set of data on how people see those rules, and use content analytic or discourse analytic coding methods to study how far apart the representations of the law in text are from the rules as understood or represented in reality, and in which respects. It was a tough assignment!

The students were at liberty to choose any kind of text data they wanted. Some chose blog posts. Some chose news articles. Some studied internal DoD memos to try to understand the narratives of policymakers as they tried to implement the rules of war. One scoured the Star Wars Trilogy screenplays for evidence of inaccurate portrayals of just warrior-hood (see below). All were required to attend a coding workshop, explain their methods and their findings, and draw inferences about the dissemination of humanitarian law to the public, media and policymakers.

Having graded many an undergraduate paper in my day, I was mightily impressed by the quality of the papers I saw and the amount of effort and detail many of these students put into their projects. Below the fold are short descriptions of the five best papers in the class, with accompanying visualizations. Working papers are linked below.

Dan Glaun snagged a summer research assistantship with me for this paper, in which he explores how news coverage of the Geneva Conventions themselves has changed since 9/11, in the context of agenda-setting theory. Dan tracks an increase in the overall salience of war law reportage in the US press, a shift in the referent point of the articles, and a corresponding change in the accuracy, precision and normative bent of the news coverage compared to war crimes reporting in the 1990s:

“In the two years preceding 9/11, there was not a single story which misrepresented the Conventions. However, only 11% of the stories were precise as well as accurate. The pre-9/11 newspaper reports tended to engage in generalities about civilian protection and war crimes, rather than citing specific sections of the Conventions or quoting significant excerpts from the texts. Post 9/11, however, the profile of accuracy and precision changed significantly. Accuracy declined from 100 to 65 percent, indicating an increase in media misrepresentation of the Conventions. Simultaneously, precision increased from 11 to 54%, including both accurate representations and specific, precise claims which were in actuality false. Among accurate articles post 9/11, 58% were precise and 42% vague. For inaccurate articles, 44% were precise and 56% vague. This demonstrates an acrossthe-board decrease in accuracy following 9/11. It also shows a universal increase in precision, both in accurate and inaccurate accounts.”

Christine Donovan examined jus ad bellum justifications for the Iraq war in not only press coverage but also US and British political speeches and statements. Christine examined both newspaper articles and political speeches for both countries and coded them not only according to how accurate, vague or misleading they were but also for what type of war law arguments were used to sell the war. She found that overall both press coverage and political rhetoric in the US was less misleading than in Britain (and also relied less on arguments grounded in humanitarian law, such as Hussein’s treatment of civilians). She also found that the media and the public were far more interested in international law aspects of the invasion than the politicians were in making international law arguments:

“While the positive interpretation of UNSCR 1441 (as well as 678 and 687) appeared to have been the soundest legal argument for the United States and the United Kingdom to make, it was not the main focus of political rhetoric. This may have stemmed from the belief that, perhaps, complicated legal arguments would not resonate with ordinary people as much as weapons of mass destruction or human rights violations would. However, the strong focus on international law found in the selection of newspaper articles, especially those later on in the war effort for the United States and consistently in the United Kingdom, suggest that the public cares more about international law and the legality of the invasion than originally assumed. Perhaps United States and United Kingdom officials made an error by not presenting this legal reasoning to the public in depth, as it might have improved public opinion.”

Wes Mason, who also worked with me on my Battlestar Tweet project, examined how well bloggers understood the law on cultural property as applied to both Iraq and Egypt. He finds some variation between Egypt and Iraq (discussed at more length) but also some general conclusions:

“My analysis shows that bloggers do not use particularly nuanced understandings of international law to make arguments about protecting cultural property in armed conflict, that they are far more likely to reference the Hague Regime than the Geneva Regime, and that they are even more likely to reference other laws outside the aforementioned regimes specific ally concerned with preventing the trafficking rather the destruction of cultural property.”

Sarah Wesley coded a random sample of 200 articles from the NYTimes, Al-Jazeera, WSJ and Huffington Post to explore to what extent the term ‘enemy combatant’ has come to be used interchangeably with ‘detainee.’ She found that the answer depended somewhat on the source – with Al-Jazeera six times more likely than the NYTimes to use the terms interchangeably, but also more likely to put the term ‘enemy combatant’ in quote marks when used, and far less likely to use it overall:

“On average, newspapers recognize there is a clear distinction between the terms ‘enemy combatant’ and ‘detainee’ and/or ‘prisoner of war.’ However interestingly, these news outlet did not often understand the differences between the terms.”

And last but not least, without doubt the juiciest paper of the entire lot was Shawheen Saffari‘s analysis of the Star Wars Trilogy, in which he finds a significant gap between portrayals of just conduct by the rebels and the standards of conduct required of actual rebels under humanitarian law circa 1977 and after:

“My analysis shows that the Rebels in Star Wars abide to war law in some cases but not all, including certain tactics that would be considered grave violations. While Rebels would generally follow law dictating accepted uniform and bearing of arms, the Rebels would frequently harm civilians in the majority interactions as well as show disregard towards civilian property that would be deemed culturally or religiously significant, violations specifically of Articles 13 and 16 of the AP II.”

Quick: how many war law violations can you find in this clip?

Bataille d'Endor Attaque des Ewoks VO by yan_solo2010

Harold Koh at Opinio Juris: “Killing OBL was Legal.”

Like Robert Haddick, though for different reasons, I was glad to see a State Department spokesperson publicly issue the legal justification for the manner in which the OBL raid was carried out.* Also as a blogger, I was delighted to see the explanation take the form of a much-trumpeted guest post at Opinio Juris.

Slightly disappointed, however, at the content of the post, posted earlier today.

To begin with, Harold Koh focuses solely on jus in bello concerns, although important legal questions were about whether it was legal to conduct the raid on Pakistani soil. I can imagine a number of ways you could argue that case, any of which would have been fascinating from a norm development perspective, so I’m disappointed the State Department is so opaque on this.

Koh also spends over half the post simply pasting in his comments on drone warfare last year – interesting since drones weren’t even used for this operation. It makes some sense, however, given that the real issue with drones isn’t the drones – it’s targeted killings.

The most interesting part of the argument, however, and what we should watch for commentary on in the next few days, is Koh’s comments on the law of surrender – addressing the conditions under which bin Laden would have been captured instead of killed. Here is what he writes:

Consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender [my emphasis]. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.

Now, I do not understand the law of surrender perfectly, and when I went to look it up I had a hard time identifying the appropriate clauses, though I’ll update this post as soon as I hear back from people trained in the nuances of Hague and Geneva law. (Help, Stephanie?) But in my non-lawyer’s understanding the requirement to accept surrender if it is requested is not contingent on any contextual understanding of whether in the judgment of belligerents the circumstances render it ‘feasible’.**

Milbloggers who have commented on the bin Laden raid echo this understanding – here for example is Ghosthawk:

Look, in war, if someone is attempting to surrender, you have a legal and moral obligation to accept that surrender.

Ken Anderson, on the other hand, who is actually a lawyer, tells us at Volokh Conspiracy that Koh’s articulation is entirely consistent with both treaty law and the UCMJ:

This is the international law standard in the laws of war for surrender, and it is the standard applied in operational law by US JAG in operations in Afghanistan on a regular basis — in conventional operations as well as special operations. I had some fears that, in order to present what was apparently a marvelously clean operation in terms of targeting and collateral damage in its most favorable light, the administration might be tempted to raise the bar on the law of surrender. It is an act in the law of war that is much more fraught and difficult in many circumstances than it might appear. But the Legal Adviser has stated the law as it is, and as it is operationally applied by US forces on a regular basis.

Unfortunately Ken doesn’t point us to the specific provisions in his post, so that we can interpret them for ourselves. I hope to get you more on this as my own understanding improves, and I can’t wait to use this as a case study in Rules of War next year.

The open thread on Koh’s remarks is here.

*(More on the latest details of the raid here. Kavetching about the coverage of raid details here.)

**To be absolutely clear, I am not claiming that bin Laden tried to surrender, or that Seals were required to offer him that option if he didn’t ask for it. I’m saying that hypothetically if he had asked for it, I am unfamiliar with conditions under which it would have been legal for troops to then kill him anyway due to it being “infeasible” to accept his surrender.

Reciprocity and International Law: A reply to International Jurist

On Wednesday, Xavier Rauscher at International Jurist posted his response to the hullabaloo over international law and the death of bin Laden. I’ve said my piece on it here and I’m getting tired of the issue, but Rauscher’s post is interesting because he tries to look at the “big picture” – noting that the manner in which bin Laden was killed has thrown more fuel on the fire over the “war on terror” vs “law enforcement” debate.

He also notes the commentary surrounding the fact that the debate over the issue seems to highlight the fact that within international politics we now seem to have two incompatible understandings of what international law is. Rauscher quotes American University Law Professor Ken Anderson who blogged at The Volokh Conspiracy on this point:

…what we call international law has been fragmenting for some time now into different “communities of interpretation and authority” as I somewhere called it. (…) Those communities have moved sufficiently far apart that they no longer share a common basis for authoritative interpretations of international law.

While disagreeing with the “conservative” tone, Rauscher responds:

It is important that the doctrinal debate on applicable international law does not lose touch with existing State Practice and more specifically States’ security concerns, lest international law becomes less relevant and hence loses its already relatively weak authority. While I am not arguing that international lawyers need to cave in systematically when confronted with a powerful State’s slightest whim, we must be always careful to address the security needs of States and offer credible and effective solutions to such issues. In the great scheme of things, international law should always be presented as a toolbox of solutions, not problems that may be negatively perceived not only by the States, but public opinion as well.

I agree with this sentiment very much.

However, I do have one major concern about the argument that Rauscher seeks to put forward:

The reason for the urgency is something that people like Kenneth Anderson completely miss in their discourse: that international law, and the international system as a whole, is founded on a fundamental principle that is reciprocity. To claim the right to invade “rogue States” for murky security reasons, to indefinitely detain “enemy combatants” in a never-ending conflict, or to send drones to kill terrorist suspects all over the world is one thing when you are the United States and believe you are a force for good – but it’s a whole other thing when other States, with perhaps less honorable goals, build their own policies on such dangerous precedents to the disadvantage of international peace and security.

There is a danger lying here in invoking reciprocity and I think the implications of it may take Rauscher to a place he may not want to go. Effectively, the principle reciprocity is what neo-conservatives in the United States have put forward as the reason to deny Guantanamo detainees any rights whatsoever. They don’t play by Geneva’s rules (or any rules, really), therefore they don’t have the right to expect treatment by the rules in turn. For example, as Alykhan Velshi and Howard Anglin have argued:

The Geneva Conventions are by no means anachronistic; they remain the proper legal framework for waging a conventional war against a regularly constituted army. But applying the strict letter of the Geneva Conventions to Islamist militants is like applying the Queensbury Rules to a donnybrook. When terrorists have shown no interest in abiding by the Geneva Conventions, it is naïve to think that we can shame them into doing so by treating them as though they have. The best way for the United States to honor the Geneva Conventions is to enforce the principle of reciprocity and deny Geneva protections to those who scorn them.

There are many other sources one could point to hear as well.

Part of the issue here is that the role of reciprocity in enforcing the law of armed conflict is not clear. The ICRC categorically rejects the idea that it plays a role in the enforcement of the laws of war (citing the first two common articles to the Geneva Conventions). However, whether or how this take on reciprocity applies to the full spectrum of war law is unclear. Keeping with Rausher’s point about state practice, I think it is fair to say that no state will constantly agree to suffer such grievances forever. As Yoram Dinstein maintains in his book on the law of armed conflict, expecting a state to do nothing in a cases involving a blatant and persistent violation of the laws of war is not reasonable and that the laws of war should not be based “on the unreasonable expectation that, when struck in contravention of LOIAC, the aggrieved State would turn the other cheek to its opponent. This sounds more like an exercise in theology than in the law of war.” (p.26)

I find myself agreeing with Dinstein,that there is still a basis for reciprocity or reprisals in the enforcement of law. However, at the same time, I would say that international law is pretty categorical on the prohibition of reciprocity against individual victims. One needs only look at Common Article 1 of the 1949 Geneva Conventions: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”

So we need to be cautious when we invoke reciprocity, particularly as it relates to the War on Terror. But despite the lack of a precise agreement over the concept, arguing that the fundamental basis of international law is reciprocity full-stop, particularly when it comes to the laws of war, is potentially very flawed. It may be fairer to say that “what goes around comes around”, or warn of the danger of precedent, but the way that Rauscher states it is probably not legally correct (although I stress that he is the actual lawyer and I am the fake one). Worse, it’s an argument that has been used to justify many of the things that Rauscher is warning against.

The bin Laden Killing and Assassination Explained in 4 Paragraphs Not By Me

At the risk of beating a dead terrorist horse, I want to cite W. Hays Parks (former Special Advisor to the Office of Legal Counsel on Law of War Issues at DoD, JAG and possible stand in for Clint Eastwood in that Grand Torino movie) on the Osama bin Laden assassination/murder/killing debate that has kind of been driving me nuts.

In a response letter in the Washington Post, Parks writes:

The May 2 lead story by Scott Wilson and Craig Whitlock on the death of Osama bin Laden was well written and reported. But on the continuation, the story referred to the deadly attack as an “assassination.” It was not.
Executive Order 12333 prohibits but does not define assassination. In 1988, as a civilian attorney in the Office of the Judge Advocate General of the Army, I researched the issue to define assassination. I coordinated my draft opinion with the judge advocates general of the Navy and Air Force; the general counsel of the Defense Department; the general counsel of the Central Intelligence Agency; and the legal adviser of the State Department. In 1989, the Army’s judge advocate general signed an unclassified memorandum defining assassination to provide clarity to the prohibition. It was provided to the House and Senate intelligence oversight committees and was published in the State Department’s volume of significant international law documents.
Assassination is murder committed for political purposes. The killing of enemy military personnel in time of armed conflict is not assassination.
Nor is it assassination to attack the leadership of armed non-state actors such as Osama bin Laden who have been and remain engaged in planning and executing armed attacks against a sovereign state. Because bin Laden was a lawful target, the attack was neither murder nor assassination.

I think this pretty much sums it up for me. Well that and this line from Roger Cohen:

If there is greater fatuity than second-guessing the split-second decisions of commandos confronted by gunfire, knowing the compound may be wired to explode, and hunting a serial mass murderer unwilling to surrender, then I am unaware of it. Let post-modern, pacifist Germans agonize, and whoever else wishes to writhe on a pin. The rest of us can be satisfied.

Me, and my fake-lawyer self could not care any less about this issue, unless it somehow involved the Royal Wedding.

Why the Geneva Conventions Need a Monitoring and Reporting Mechanism

Someone recently asked me whether, in the wake of the Richard Goldstone’s qualifications of his infamous report, the UN was losing its credibility to issue fact-finding studies on humanitarian law violations.

In my view, no matter how “credibly” a study is conducted, it is vulnerable to such critiques under the existing system – in which all humanitarian law reporting is partial, ad hoc and selective. That’s because unlike other international regimes, the Geneva Conventions comes with no official monitoring body.

At Foreign Affairs, I discuss this at more length and argue that it could and should be changed:

When the conventions were created, they were meant to be self-enforcing: signatories pledged that their own troops would follow the rules and agreed to bear primary responsibility for monitoring and punishing violations. But the treaties establish no independent organization to monitor compliance with the Geneva Conventions in real time, investigate alleged crimes after the fact, or produce even-handed analyses of each actor’s conduct measured against baseline humanitarian standards set by the treaties.

Without an independent monitoring mechanism capable of making informed, systematic, nonpartisan claims about what has happened on the ground, it is all too easy for countries to exploit the gray areas in humanitarian law. Consider drone attacks in Pakistan, which are criticized for having an undue impact on civilians. No independent body is responsible for systematically counting how many civilian casualties they cause. Nor is there any international institution to aggregate other relevant numbers — for example, civilian casualties from non-aerial attacks worldwide — for comparison. Instead, journalists and think tanks produce wildly conflicting estimates, relying on non-comparable sources and talking past one another. The discussion over drone use is thus stalemated, and it is left to the allegedly offending government to determine whether, in its estimation, its actions are justified.

An independent, multilateral monitoring agency tied to the Geneva Conventions could begin to fill this reporting gap. Such an organization would ultimately need to be designed by states through a negotiated consensus, but it is not too hard to envision what it could look like. Its role could be not to judge or condemn but to report; its data, a gold standard for courts, governments, NGOs, and scholars. The agency could be staffed not by lawyers and advocates but forensic specialists, statisticians, social scientists, and criminal investigators. It could include a mechanism for receiving and investigating confidential reports from soldiers who witnessed war law violations, filling a serious gap in the Geneva regime by formalizing war-crimes whistle-blowing. By limiting its mandate to objective reporting and requiring it to conduct rigorous and systematic investigations in every situation that meets a legally defined threshold for armed conflict, states would have less reason to fault the results of its investigations.

Read the whole article here.

[cross-posted at Lawyers, Guns and Money]

Was “Justice” Served?

In the wake of the jubilant response to bin Laden’s killing, it is heartening to see such a quick discussion erupt over its legality. The State Department has released its legal rationale for the operation here. The Atlantic Wire summarizes various arguments. Ken Anderson considers what the debate itself tells us about international law development.

My views on extrajudicial execution are well known, but I’m not sure I agree with Paul Campos that this event counts as such – whether or not this is understood as a law enforcement operation vs. a military engagement.

In the former, officers are permitted to use lethal force in self-defense, so if we accept the US’ claim that its Seal team was under fire then firing back was legal even if we assume human rights law rather than the law of armed conflict applies. This would be true, again assuming a firefight, even if bin Laden himself wasn’t armed (though his death ought to then have been treated as regrettable rather than celebrated as the Obama administration has done).

But if we cede the Administration‘s (and al-Qaida’s) claim that a state of armed conflict exists between the US and AQ, then the ICRC’s concept of ‘continuous combat function‘ would probably have applied to bin Laden (unlike Anwar al-Awlaki) due to his operational role in planning attacks. And even if you don’t buy this argument (many don’t since bin Laden’s operational importance is disputed and the concept of CCF is at any rate not enshrined in treaty law) the fact that this was a ground operation where bin Laden’s men were in a position to engage US troops, rather than a drone attack that hit him as he slept means that he was probably a legitimate target at the time he died even if he’s technically a civilian. Either bin Laden himself or those around him would have been directly participating in hostilities at the time, which means he was either a civilian who had momentarily lost his immunity (if armed), or a civilian caught in the crossfire of nearby civilians (the couriers) who had given up theirs. By using ground troops instead of an aerial attack, it is also clear that the US fulfilled the rules on proportionality and minimization of civilian harm, although whether they chose a ground mission for those reasons is debatable at best.

So in my mind – again assuming we can believe that US personnel were under fire at the time – it’s not the legality of killing rather than capturing bin Laden that is questionable; it is the wisdom of doing so. The claim that “justice” has been served here is particularly murky. That is because “justice” can mean a number of things.

To Obama and much of the American public it apparently means an eye for an eye.

To human rights lawyers, it involves following procedural rules in meting out punishment, which explains the focus on the legality of the killings.

But to advocates and scholars of post-conflict justice, “justice” has a broader, sociological and empirically measurable meaning: the phenomenon of holding perpetrators accountable for crimes in the eyes of their victims. This concept has a normative package of ideas associated with it as well: accountability should be exercised not only consistent with the rule of law, but in a manner that promotes a human rights culture, minimizes or deters future atrocities, and promotes reconciliation and inter-group understanding.

Killing rather than capturing bin Laden is an absolute fail on the first account. Warriors get killed in combat and criminal suspects get killed in confrontations with law enforcement all the time (as do civilian bystanders). But such incidents do not transform a warrior into a war criminal, or a criminal suspect into a convict. Such acts do not in themselves constitute justice in the sense of accountability before the law. They in face preclude it.

In so doing, the psychological benefits of international justice have been precluded as well. As Geoffrey Robertson argues in the Independent:

Bin Laden could not have been tried for 9/11 at the International Criminal Court – its jurisdiction only came into existence nine months later. But the Security Council could have set up an ad hoc tribunal in The Hague, with international judges (including Muslim jurists), to provide a fair trial and a reasoned verdict.

This would have been the best way of de-mystifying this man, debunking his cause and de-brainwashing his followers. In the dock he would have been reduced in stature – never more remembered as the tall, soulful figure on the mountain, but as a hateful and hate-filled old man, screaming from the dock or lying from the witness box. Killing instead of capturing Osama Bin Laden was a missed opportunity to prove to the world that this charismatic leader was in fact a vicious criminal, who deserved to die of old age in prison, and not as a martyr to his inhuman cause.

That won’t be possible now. Whether the world will be better or worse or neither as a result is anyone’s guess. But what is certain is that justice, by this standard, has been stayed, not served.

[cross-posted at Lawyers, Guns and Money]

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