Tag: humanitarian law (page 2 of 2)

The ICC Review Conference : The Belgium Amendment


For those of you who are international law junkies (– and really, who isn’t?) ASIL has a very interesting blog on the ICC Review Conference that took place over the last two weeks in Kampala, Uganda. David Scheffer, a notable scholar on both the ICC and international criminal justice, has a really interesting post summarizing most of the decisions that were made.

Of course one of the most interesting developments is, of course, the crime of aggression. However, what I find to be more interesting is the expansion of the prohibition of weapons banned in international armed conflict (including expanding bullets) in non-international armed conflicts, or NIAC – the so-called “Belgium amendment”.

This may seem relatively straightforward – the law of armed conflict has had regulation of bullets since 1868. As Scheffer himself writes:

These weapons already are included in Article 8(2)(b) for international armed conflicts, without anyone raising any real fuss, and this amendment is a logical extension of such weapons to non-international armed conflicts. So they are barely considered “new” weapons; rather they are long-standing weapons in the Rome Statute now introduced into an additional scenario of armed conflicts.

Yet, in areas of conflict such as Iraq and Afghanistan – where whether one is fighting an international or non-international armed conflict seems to change daily, this could have very serious consequences. It might affect sniper and counter-terrorism operations not only in these areas, but also within states, where the need to have one-shot/one-kill is important for security.

Additionally, incorporating the development of weapons law into the ICC Statute is an interesting new tactic for humanitarian groups. While the Belgium Amendment was formally supported by Austria, Argentina, Belgium, Bolivia, Bulgaria, Burundi, Cambodia, Cyprus, Germany, Ireland, Latvia, Lithuania, Luxembourg, Mauritius, Mexico, Romania, Samoa, Slovenia and Switzerland, there also has been clear support and lobbying from humanitarian organizations, particularly the ICRC.

This development also confirms the trend whereby humanitarians, unable to affect the kind of change they want to see through the ICRC Customary Law Study or the Convention on Conventional Weapons (CCW) Review Process (of which there will be a conference next year), are increasingly turning to alternative international fora. These fora have real binding powers and operate largely two-thirds majority voting system, like the voting proceedure in the General Assembly. This was the general approach of the process that lead to the Ottawa Treaty and Cluster Munitions Treaty. Western countries and militarily affected states have, by and large, favoured consensus approaches over this later system for rather obvious reasons.

It has been my understanding that the US is to issue a statement of understanding on the ICC soon (I’m a little surprised it hasn’t been out already – but perhaps they were waiting for the outcome of the Conference?) However, I have to believe that these kinds of approaches are not helping to bring the US any closer to ratifying – but perhaps the state-parties to the ICC are simply no longer inclined to care or bother trying.

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The Flimsy Case for Drone Warfare

Amitai Etzioni, a law professor at George Washington University, has followed up the State Department’s justification for drone attacks in Pakistan with an argument of his own, published in the new issue of Joint Force Quarterly.

Here is the first paragraph, sentence by sentence with commentary:

The substantial increase in the employment of unmanned aircraft systems in Afghanistan, Pakistan and other arenas has intensified debate about the moral and legal nature of the targeting killing of people who are said to be civilians.

Oh good. Because when I first saw the title – “Unmanned Aircraft Systems: The Moral and Legal Case” I almost thought Etzioni believed he needed to make the case for unmanned systems per se. But of course it’s not the systems themselves that are at issue. The issue is in using them – or any technology – for targeted killings of civilians, whatever we might suspect those civilians of doing, and particularly inside the sovereign borders of countries with whom we’re not at war. A better title for this particular piece might be “Targeted Killings of Civilian Terror Suspects: The Moral and Legal Case.”

The US and its allies can make a strong case that the problem is those who abuse their civilian status to attack truly innocent civilians and to prevent our military and other security forces from discharging their duties.

OK, fair enough. But note this is a PR argument, not a legal or a moral argument per se.

In the long run, we should work toward a new Geneva Convention, one that will define the status of so-called unlawful combatants.

Fair enough also. I myself have been in favor of an Additional Protocol that would create a multilateral consensus around what current law means in an era of asymmetric war. But note that this implies there is actually no legal case to be made for this behavior using existing law.

These people should be viewed as having forfeited most of their rights as civilians by acting in gross violation of the rights of others and of the rules of war.

Whoa, stop the presses. Quite a jump from arguing that the US should point out that these individuals are abusing humanitarian law for their own purposes, and suggesting that the law be updated, to suggesting that they lose all their rights “as civilians.” What I think Etzioni means is that they should lose their immunity from attack as civilians.

As far as I understand it, there is no legal justification for this – that is, no “legal case” to be made here. If they are civilians, they lose their immunity only as long as they are directly participating in hostilities. If they might actually be considered combatants, then Etzioni’s distinction between “innocent” and “abusive” civilians doesn’t make much sense. And even if it did, he suggests no means to distinguish between the two categories for the purpose of making sure you avoid “innocent civilian” casualties – arguably one of the key moral dilemmas that would need to be addressed in order to “make the case.”

Etzioni makes a few other unconvincing statements in supporting his argument: he overestimates, in my view, the differences between today’s wars and previous wars; his claim that we must kill terrorists before they attack us hinges on the notion that terrorists cannot be deterred or rehabilitated (they can); and he seems to be arguing that the UN Charter regime is irrelevant, when he suggests that no government who wishes to target a terrorist on foreign soil should wait for the consent of the foreign government. Maybe his goal is to push us back into a world where conventional war is the norm – go ahead and undermine the territorial integrity norm, and that’s what you’ll have.

This poor execution (pardon the pun) detracts from the two important points he makes: a) the US needs to make a clear moral case for these tactics if we are going to use them and b) the ethical/legal dilemmas raised by targeted killings suggest the need for a new multilateral consensus about what the laws of war mean – a new Additional Protocol to the Geneva Conventions, perhaps.

But ultimately, I think this article really does nothing to help us think through what a genuine moral / legal case for targeted killings would be, whether there actually is one, or what those new rules would need to look like in order to remain consistent with the larger body of humanitarian law. Mostly, it looks like apologism for existing US policy and a roadmap for rhetorical strategies policymakers might use to dupe the public into thinking it’s within the bounds of the law whether or not it actually is.

Danger Room has a bit more on this particular article. Etzioni has also been on NPR with his views; I’ve not had a chance yet to find out if he expounds more on them there than in the written piece.

I’ll be writing more on this by and by, but I’m curious what readers think about the moral/legal dilemmas associated with targeted killings, by drones or even by manned aircraft. The blog at National Defense University Press has solicited reactions from the general public, so consider leaving a comment there as well.

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Human Rights Watch: Between Two Worlds

Human Rights Watch founder Robert Bernstein lit a fire under human rights activists yesterday with his NYTimes op-ed yesterday, criticizing the organization for its focus on Israel rather than more autocratic regimes in the Middle East.

His argument is really about organizational mandate and issue selection: faced with the need to select among the many abuses competing for intention, how should a group like Human Rights Watch prioritize its activity? Bernstein argues it should focus on closed societies, not open ones:

At Human Rights Watch, we always recognized that open, democratic societies have faults and commit abuses. But we saw that they have the ability to correct them — through vigorous public debate, an adversarial press and many other mechanisms that encourage reform.

That is why we sought to draw a sharp line between the democratic and nondemocratic worlds, in an effort to create clarity in human rights. We wanted to prevent the Soviet Union and its followers from playing a moral equivalence game with the West and to encourage liberalization by drawing attention to dissidents like Andrei Sakharov, Natan Sharansky and those in the Soviet gulag — and the millions in China’s laogai, or labor camps.

Human Rights Watch issued a rebuttal yesterday:

Human Rights Watch does not believe that the human rights records of “closed” societies are the only ones deserving scrutiny… “Open” societies and democracies commit human rights abuses, too, and Human Rights Watch has an important role to play in documenting those abuses and pressing for their end.

To some extent this debate hinges on a tricky distinction between human rights law and humanitarian law. Human rights law governs what a state may do to its own people; since the movement has typically focused on civil and political rights, it makes sense to pay greater attention to non-democracies whose very governing structures violate the rules, than flinging barbs at violations on the margins of already free, democratic societies.

But humanitarian law governs what a state may do to the enemy in time of war, and it is humanitarian law that is relevant to the reporting on Israel that Bernstein is primarily addressing, as well as much reporting on the US. With respect to IHL, this distinction (if valid at all) breaks apart entirely, as the openness of domestic institutions has little bearing on the record of countries in war: militaries of democracies are no less likely to abuse noncombatants in time of war. In fact, Alexander Downes has found they may be more likely to do so.

In short, whatever the merits of Bernstein’s argument with respect to human rights (further picked apart by Michael Yglesias) it pretty much falls apart completely for IHL.

I think the tension Bernstein points to highlights HRW’s tenuous position at the interstices of two separate networks – human rights and humanitarian law. As Stacie Goddard points out in a recent study, betweenness of this type positions an actor to play a useful brokering role in international society, contributing to the development of new norms and ideas, and also increasing one’s influence within and between networks. However this latest PR snafu also highlights the disadvantages of being caught between two worlds with two different standards for human security agenda-setting.

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