Tag: ICRC

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

Quiz:

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.

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War Crimes and the Arab Spring. Again.

The direct targeting of actors protected under the laws of war has been one of the most disturbing trends arising out of the Arab Spring. For example, the targeting of medical workers and ambulance drivers was well documented and reported on last year. Additionally, here at the Duck we’ve been following the issue. In recent months Dan Nexon wrote about the targeting of doctors who treated protesters in Bahrain and I’ve bloged about the growing concern of the ICRC who have seen themselves and their workers targeted. Unfortunately, this trend has continued into 2012. In January, the vice-president of the Syrian Red Crescent Abdulrazak Jbeiro was shot and killed in circumstances described as “unclear” – an act that was widely condemned by the the ICRC and officials world wide.

The deaths of Marie Colvin and Remi Ochlik are an example of another neutral actor in wartime that has frequently been targeted – the press. Accredited journalists are protected under the laws of war, specifically the 1949 Geneva Conventions and Additional Protocol I. If they are wounded, sick (GCI 13(4)) or shipwrecked (GCII 13(4)) they are given protections. If they are captured, accredited correspondents are to be given POW status. (GCIII 4A(4)). Additional Protocol I devotes an section to the protection of journalists:

Art 79. Measures or protection for journalists
1. Journalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians within the meaning of Article 50, paragraph 1.
2. They shall be protected as such under the Conventions and this Protocol, provided that they take no action adversely affecting their status as civilians, and without prejudice to the right of war correspondents accredited to the armed forces to the status provided for in Article 4 (A) (4) of the Third Convention.
3. They may obtain an identity card similar to the model in Annex II of this Protocol. This card, which shall be issued by the government of the State of which the Journalist is a national or in whose territory he resides or in which the news medium employing him is located, shall attest to his status as a journalist.

(A good and longer summary of the rules may be found here.

It is true that these rules in the 1949 Geneva Conventions and API are for international (and not internal) armed conflict. But as non-combatants the direct targeting of these individuals would also be illegal under any legal framework. Further, it can be argued that directly targeting aid workers and journalists is a clear violation of customary international law for both international and non-international armed conflict.

This is, of course, on top of the relentless shelling, bombing and targeting of civilians by Syrian forces. While the deaths of these journalists once again highlight what is going on, we should not lose sight of the fact that it would seem, at best, thousands of civilians have died in the conflict since last year. The methods employed by the Syrian armed forces come nowhere near the standards by which we measure the conduct of hostilities.
Worse, it is clear that civilians are suffering great deprivations as a result of the uprising and crackdown. This has lead the ICRC to specifically request access to the civilian population in order to deliver food, water, medicine and fuel.

Last year the ICRC launched a campaign about that which impedes the delivery of assistance and aid in areas of hostilities and armed conflict. Certainly, a consequence of the Arab spring has been to highlight how fragile many of these international norms are. I am not going to pretend that I have any amazing solutions to the crisis in Syria – everything seems like a pretty terrible option. But there can be no doubt that we should be standing up for the laws of war and demanding that Syria’s ‘allies’ (Russia and China) place pressure on Syria to respect international law. At a minimum this is the very least we – and they – can do. The right to deliver humanitarian assistance and the protection of aid workers has long been established in international law. And significantly, this includes UN Security Council Resolution 1502 which (having been adopted unanimously) both Russia and China voted for in 2003.

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Safeguarding medical workers in hostilities

Yesterday the ICRC released a report on the very scary and depressing trend of attacks on medical workers in situations of armed conflict and civil disturbances:

According to Dr Robin Coupland, who led the research carried out in 16 countries across the globe, millions could be spared if the delivery of health care were more widely respected. “The most shocking finding is that people die in large numbers not because they are direct victims of a roadside bomb or a shooting,” he said. “They die because the ambulance does not get there in time, because health-care personnel are prevented from doing their work, because hospitals are themselves targets of attacks or simply because the environment is too dangerous for effective health care to be delivered.”

This makes for some pretty grim and reading.

Yet the evidence is clear – whether it is the targeting of medical workers in Libya, the targeting of a hospital in Afghanistan by the Taliban, or the unwarranted persecution of doctors in Bahrain. (A problem that Dan Nexon highlighted earlier this year here at the Duck.)  Even the allegation that the CIA found Osama bin Laden using a vaccination program puts medical workers and vaccination teams at risk – a potential disaster for global health.

(Aisde: Most, if not all of these issues, are being followed by Christopher Albon at his excellent blog, Conflict Health. Go read it. Read it now!)

The neutrality of medical staff in all circumstances is a core tenant of the laws of war, and some of its oldest codified principles. There is, quite simply, no excuse for harming someone who is engages in these tasks. This was the genius of the 1864 Geneva Convention:

Article 1. Ambulances and military hospitals shall be recognized as neutral, and as such, protected and respected by the belligerents as long as they accommodate wounded and sick.
Neutrality shall end if the said ambulances or hospitals should be held by a military force.
Art. 2. Hospital and ambulance personnel, including the quarter-master’s staff, the medical, administrative and transport services, and the chaplains, shall have the benefit of the same neutrality when on duty, and while there remain any wounded to be brought in or assisted.

These principles continues today as is clear in the First Geneva Convention of 1949. At the risk of being long-winded:

Art 15. At all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.
Art. 19. Fixed establishments and mobile medical units of the Medical Service may in no circumstances be attacked, but shall at all times be respected and protected by the Parties to the conflict. Should they fall into the hands of the adverse Party, their personnel shall be free to pursue their duties, as long as the capturing Power has not itself ensured the necessary care of the wounded and sick found in such establishments and units.
The responsible authorities shall ensure that the said medical establishments and units are, as far as possible, situated in such a manner that attacks against military objectives cannot imperil their safety.
Art. 20. Hospital ships entitled to the protection of the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, shall not be attacked from the land.
Art. 21. The protection to which fixed establishments and mobile medical units of the Medical Service are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after a due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.

The idea behind this is that someone who is seriously injured is hors de combat – in other words, out of the fight, and can no pose a military threat. Allowing someone’s wounds to fester or get worse serves no military purpose once they are hors de combat; it only causes what is normally termed unnecessary suffering. (This is the same principle that bans poisoned weapons – there is no need to uselessly aggravate an injury on someone who is seriously wounded.) The individuals who treat these injured combatants (and civilians) of all sides must therefore be protected from attack. This is why they are allowed to wear the Red Cross/Red Crescent/Red Crystal symbols – it identifies them as neutral medical workers and helps to expedite the process of recovery and treatment. (Abusing these symbols, such as using them as a ruse to conduct an armed attack, is a grave breach of the Geneva Conventions.)

Certainly, there is more law I could cite here. But the main point is that the ICRC is absolutely correct to highlight this as a growing problem.

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Blegging: Did no one complain about the Soviet Use of landmines in Afghanistan from 1979-1989?

I am trying to find examples of humanitarian organizations that spoke out against the use of landmines by the Soviet Union during its invasion of Afghanistan from 1979-1989.

Landmines were big as one of the weapons issues put up for debate in the late 1960s and early 1970s by the UN General Assembly. The first specific legislation against them was Additional Protocol II to the 1980 Convention on Conventional Weapons. (A regulatory treaty as opposed to a banning treaty.)

Even if the original APII was pretty weak (it was amended in 1996 which greatly strengthened it) there is no question that the Soviet Union, who ratified the CCW in 1982, was violating the crap out of it. In particular the “butterfly landmines” it used were particularly horrendous.

However, until the series of reports by the UN Human Rights Committee from 1985-1990, I cannot find any evidence that humanitarian organization spoke out about the landmine issue until the 1990s. I have a couple of guesses as to why this would be the case (one being the fact that the ICRC was kicked out of Afghanistan in 1980, allowed to resume limited operations in 1987 but then kicked out again until the end of the war. This would obviously make it hard to monitor the situation.)

Yet, while speaking out about the sue of these weapons, the Human Rights Committee report does not invoke the 1980 CCW?  Did no one else speak up about the treaty (or landlines, or incendiary weapons, etc)?

Edit: There seems to be a certain amount of news coverage of the weapons issue in Afghanistan, but the NGO response still seems underwhelming. MSF held a press conference in 1982, but it isn’t until around 1988 that we start to see NGOs (like the ICRC) really highlighting the problem in the press.) Additionally, it seems that in 1986 a UN official actually tried to cut out some of the criticism in the Human Rights Committee report – allegations of the use of chemical weapons, for example – that made the Soviets look really bad.

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Worst. IHL. Treaty. Evar….

Suspected Mercenaries in Libya

I really do more things than tweeting, but this morning I got up to find that the ICRC had sent out a message that simply stated the title of the Convention of the OAU for the Elimination of Mercenarism in Africa. Libreville, 3rd July 1977 and a link to the treaty.

I can only assume they’re doing it in response to the situation in Libya where it has been alleged that Gaddafi has been using mercenaries (from Chad? Nigeria?They seem to deny it, claim to be ordinary African migrant workers) to back up his regime.

I find this interesting for a few reasons. The ICRC has tweeted the treaty with zero context whatsoever. As if this was a normal thing to tweet out on a Saturday morning in Geneva. But I hear they’re having a bad ski season, so that might explain it.

The other thing is that this treaty is often held up as an example of just how ineffective IHL is at regulating private actors such as mercenaries and private military companies in conflict.

A brief history of the treaty is that it was written in the 1970s when there were concerns that colonial powers and the then-Apartheid government of South Africa – both who were seen as wanting overthrow left-wing/Marxist/anti-colonial governments – were using mercenaries.

Yet you don’t even need a close reading of the treaty to realize what the problem is. According to Article 1:

1. A mercenary is any person who:

a) is specially recruited locally or abroad in order to fight in an armed conflicts;
b) does in fact take a direct part in the hostilities;
c) is motivated to take part in the hostilities essentially by the desire for private gain and in fact is promised by or on behalf of a party to the conflict material compensation;
d) is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflicts;
e) is not a member of the armed forces of a party to the conflict; and
f) is not sent by a state other than a party to the conflict on official mission as a member of the armed forces of the said state.

How could one possibly prove 1(a) and (c) in court? They have to do with motivation which, unless the person was stupid enough to write “HA! HA! Today I am a mercenary and I have been specifically recruited to fight and I am solely motivated by profit! HA! HA!” in their diary, would be something that is easy to challenge in any defence. Certainly if the person said that they were motivated by ideological factors, they would fall outside the definition provided.

As Geoffrey Best is often quoted as saying, “any mercenary who cannot exclude himself from this definition deserves to be shot — and his lawyer with him”.

So while I am sympathetic with the ICRC for reminding one and all about the relevant treaties applicable to the situation, there are some difficulties. I’m actually more concerned that this is fueling an anti-foreigner witch- hunt that seems to be taking place where anyone who is suspected of being a mercenary could be attacked while the situation is so chaotic. Certainly the ICRC could have tried to provide some context?

But even beyond linking to a rather useless IHL treaty, perhaps they might focus on Additional Protocol II (which Libya signed in 1978) or at least its customary provisions. While the application of APII is very rare (and it is a pretty weak Protocol) certainly it’s possible to argue that it’s a point where it is applicable? Or is that to make a normative judgement upon the status of the conflict?

Perhaps the best thing about this situation is to renew discussions about how to regulate private actors in conflict, along the lines of the 2008 Montreux Document.

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