Female Voices at the 12th International Humanitarian Law Dialogs

I had the pleasure to attend the 12th International Humanitarian Law Dialogs in Chautauqua, New York, from August 26-28.  This post will brief highlight notable female contributions to this year’s conference.

Catherine Marchi Uhel

Catherine Marchi-Uhel, Head of IIIM (Katherine B. Fite Lecture, 12th IHL Dialogs)

As usual, Intlawgrrls sponsored the Katherine B. Fite lecture; this year’s lecturer was Catherine Marchi-Uhel, the recently appointed Head of the International Impartial and Independent Mechanism for Syria (IIIM).  Catherine Marchi-Uhel is a French national who began her career in the French judiciary, and then held several different posts at the United Nations, including in Bosnia, Kosovo, New York, and at the Extraordinary Chambers in the Courts of Cambodia.  In addition and as usual, Intlawgrrls sponsored a porch session.  This year’s porch session was on the topic of “Victims and International Criminal Tribunals.”  The session was moderated by yours truly, and included Professors Jennifer Trahan, Yvonne Dutton, and Valerie Oosterveld as speakers.

IntlawGrrls Porch Session

Intlawgrrls Porch Session: Professors Oosterveld, Sterio, Dutton, and Trahan (from left to right)

Other notable lectures and panels by female professors included the “Year in Review” lecture by Professor Valerie Oosterveld, a lecture on “Legal Limits to the Use of the Veto in the Face of Atrocity Crimes” by Professor Jennifer Trahan, and the “Ferencz Issues Panel: Is the Justice We Seek the Justice They Want?” moderated by Professor Leila Sadat (panelists included Zainab Bangura, Binta Mansaray, and Catherine Read).  The recipient of the Heintz Award this year were Allyson Caison, North Carolina Stop Torture Now, and Christina Crowger, North Carolina Commission of Inquiry on Torture.

Chautauqua 2018 Photo 3

Recipients of this year’s Heintz Award: Allyson Caison and Christina Cowger 

Chautauqua 2018 Photo 1

Professor Leila Sadat, moderating the “Ferencz Issues Panel”

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New supplements to the International Protocol on documentation and investigation of sexual violence in conflict for Iraq, Myanmar and Sri Lanka

Cover_Myanmar_Burmese supplement.jpgOnce hidden and unspoken, reports of sexual violence now feature prominently in daily media dispatches from conflict zones around the world. This visibility has contributed to a new emphasis on preventing and addressing such violence at the international level.

Promoting the investigation and documentation of these crimes is a key component of the international community’s response. However, this response requires thoughtful and skilled documenters.  Poor documentation may do more harm than good, retraumatising survivors, and undermining future accountability efforts.

Recently, the Institute for International Criminal Investigations (IICI) and international anti-torture organisation REDRESS, with the funding support of the United Kingdom’s Foreign and Commonwealth Office (FCO), have launched a series of country-specific guides to assist those documenting and investigating conflict-related sexual violence in Myanmar, Sri Lanka and Iraq.

The guides (available in English, Burmese, Tamil, Sinhalese, Arabic and Kurdish on the REDRESS and IICI websites) complement the second edition of the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict, published in March 2017 by the FCO.

The Protocol aims to support practitioners to document appropriately by providing a “set of guidelines setting out best practice on how to document, or investigate, sexual violence as a war crime, crime against humanity, act of genocide or other serious violation of international criminal, human rights or humanitarian law”. It is a tremendous resource for practitioners, covering theoretical, legal and practical aspects of documentation.

However, as the Protocol itself makes clear, documentation of conflict-related sexual violence is highly context-specific. Each conflict situation and country has individual legal and practical aspects that must be considered alongside the Protocol’s guidelines.

The guides aim to fill this gap by addressing the context for and characteristics of conflict-related sexual violence in the three countries. They address legal avenues for justice domestically and at the international level, specific evidential and procedural requirements and practical issues that may arise when documenting such crimes.

The publication of these guides on the three different countries highlights some interesting comparisons and contrasts.  Although the background to and most common forms of sexual violence differ from country to country, the motivations for the violence have parallels. Similarly, the stigmatisation of survivors is a grave concern in each country, influencing all aspects of daily life for them and the way that institutions and individuals respond to the crimes committed against them.

In all three countries, a landscape of almost complete impunity prevails, and in many situations survivors, their families and practitioners face significant threats to their security – often from state actors (e.g. police, military, state security). This harsh reality is borne out by the fact that although the drafting of the supplements relied heavily on the experience and input of local practitioners, due to security concerns, very few were able to be individually acknowledged for their contributions.  Continue reading

Modelling the rules of targeting

Maid of Orleans Jan Matejko

Jan Matejko “Maid of Orleans”

The rules of targeting of international humanitarian law play a pivotal role in protecting civilians. They achieve this by requiring military commanders to take appropriate steps when planning and executing military operations to mitigate danger to civilians. Yet, there is little guidance on how parties to the conflict apply the rules of targeting on the battlefield. Consequently, the task of Non-Governmental Organizations to hold parties to the conflict to account for breaches of the rules is extremely difficult. In the course of studying state practice on the rules of targeting I identified a number of trends which capture how commanders in all likelihood apply the rules of targeting to battlefield scenarios. A number of the findings challenge conventional views. This points to the fact that the debate concerning the rules of targeting continues to be necessary even though one can model how commanders apply the rules. I would like at this stage to share with you some of the conclusions I arrived at.

The principle of distinction requires attackers to distinguish at all times between civilians and combatants on the one hand, and civilian objects and military objectives on the other hand. The conventional view is contained in publications, such as the “Commentary to the Humanitarian Policy and Conflict Research Manual on Air and Missile Warfare.” It postulates that the degree of certainty the principle of distinction requires attackers to achieve is less than that entailed by the criminal law standard of proof of “beyond reasonable doubt.” However, it is concluded that the degree of required certainty is higher. The elements of available intelligence, urgency of acting, force security and the civilian harm which will result if the target is misidentified should each individually reinforce the conclusion that the target is a military objective in order for the attacker to be entitled to engage the target.

The rule of target verification requires the attacker to do everything “feasible” to verify that a chosen target is a military objective. Ian Henderson in his book “The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack Under Additional Protocol I” submits that the consideration of how many civilians will be killed if the target is misidentified and the likelihood of the target being a civilian object should play a role in a commander’s assessment of whether he or she is doing everything “feasible” to verify that the target is a military target. The examination of state practice reveals that commanders indeed balance the elements of the likelihood of harm to civilians occurring and the military advantage entailed in conducting further reconnaissance in assessing whether it is “feasible” to allocate additional resources to verifying the character of the target. They may additionally for policy reasons consider the number of civilians who will die if the target is mistakenly identified as having military character. The obligation to comply with the principle of distinction is one of the reasons why commanders do not view the magnitude of potential civilian harm as a core component of the rule of target verification. I was able to derive propositions capturing when commanders are likely to give greater weight either to the likelihood of civilian harm or to particular military considerations, such as the urgency of engaging the target.

Continue reading

Syria and the Limits of International Law

Earlier this week, the Assad regime most likely used chemical weapons against its own population in Syria. Up to 500 people may have been affected by this chemical attack, and approximately 75 individuals may have died. Western media reported that most western nations attributed the attack to the Assad regime, and although Assad himself has denied responsibility, this allegation appears credible, in light of Assad’s track record of using chemical weapons. Although this incident may have constituted a violation of jus in bello, and although this incident may be morally abhorrent, international law does not actually provide other nations with tools for a direct (military) response. The Syrian situation thus illustrates the limits of international law, which one may either accept as inevitable and necessary in a sovereignty-based system of international legal rules, or, which one may attempt to eliminate by changing rules of international law. This post will briefly discuss these options, in light of the ongoing crisis in Syria.
First, even in a dire situation like Syria, international law does not actually authorize other nations to use force against the offending regime. Our current international legal order is based on state sovereignty, and on the notion that such sovereignty may be breached in exceptional situations only. Using force against a sovereign nation may constitute the most supreme breach of state sovereignty, and under international law, force may be used against sovereign nations in two limited instances: pursuant to Security Council authorization and/or in self-defense. International law does not authorize nations to use force against another sovereign nation in other situations – no matter how devastating and limiting such a rule may be. For example, international law does not authorize the use of force against a sovereign nation if such a sovereign nation is experiencing a humanitarian catastrophe, caused by its own leadership. Thus, in a situation like Syria, where the country’s own regime is killing and wounding its own population, international law does not provide other nations with authorization to use force – unless such other nations can obtain Security Council approval or can demonstrate that they are acting in self-defense. As another example, international law does not authorize the use of force against a sovereign nation, although the latter may have used internationally-prohibited weapons, and may have committed violations of jus in bello. Thus, the alleged use of chemical weapons by the Assad regime against Syrians does not provide justification, under international law, for the use of force by other nations against Assad. Additionally, even in situations where the Security Council is deadlocked and unlikely to authorize the use of force against a sovereign nation which has engaged in brutal tactics internally, international law does not step in to provide alternative legal basis to other nations who may wish to use force against the offending nation. Assad is thus safe from external interference, from the perspective of international law, so long as Russia/China continue to veto Security Council resolutions against Assad, and so long as he does not attack other countries.
The situation in Syria is akin to that in Rwanda in 1994, where the international community did not interfere, and where hundreds of thousands of civilians were slaughtered over a brief period of time. In Rwanda, like today in Syria, international law did not provide justification toward the use of force by any other nation, and Rwandan leadership was able to get away with its genocidal policy for several months. The situation in Syria is similar to that in Kosovo in the late 1990s, when Serbian president Milosevic committed atrocities against ethnic Albanians. In the case of Kosovo, however, the international community acted, through a series of air strikes against Serbia in the spring of 1999, instituted by NATO despite lack of Security Council approval. From the perspective of international law, international community’s response was correct in Rwanda and illegal in Kosovo. From the perspective of international law, international community may not do anything in Syria and may not use force against the offending Assad regime. This conclusion, although morally questionable, is based on state sovereignty, which forms the basis of our current international legal order. State sovereignty thus shields regimes from interference, even if they commit atrocities, violate jus in bello, and engage in the most reprehensible behavior (absent Security Council involvement). And, if not changed, our international legal order will continue to insulate abhorrent state policies and practices, so long as these remain internal and so long as the Security Council remains deadlocked. International law is of extremely limited utility in situations like Rwanda, Kosovo, and Syria, and its limits underlie its own weakness.
Second, if one is dissatisfied with the current international law rules, how could such rules be altered, to provide a better response in situations like Syria, of internal humanitarian crises and Security Council deadlock? Several changes are theoretically possible. First, one could retain the sovereignty-based system of international law but remove veto power for any nation from the Security Council. One could require that all Security Council resolutions be passed by a super-majority of ten or twelve nations, to ensure that authorizations for the use of force against a sovereign nation face strict scrutiny and require super-majority consensus within the United Nations. Second, one could adopt a regional sovereignty-based system, by allowing regional organizations, such as NATO, to use force against their own member states. This system would allow for regional military responses within regional institutional structures; such regional responses could get around Security Council deadlock and could alleviate humanitarian crises in places like Syria. Under this regional sovereignty system, military responses, such as the 1999 NATO-led air strikes against Serbia, would become lawful. Third, one could legalize humanitarian intervention, as a third exception to the general ban on the use of force. Harold Koh has written about this and has proposed a normative framework for humanitarian intervention; I have also written about this and have argued for a similar set of rules. A true humanitarian intervention, organized by a coalition of states, pursuant to a concrete set of humanitarian goals and limited in scope and duration could become part of our international legal order, while offending state sovereignty in the most justified manner. It may be argued that states which offend international legal norms waive their sovereignty and no longer deserve the protection of the same norms; legalizing humanitarian intervention against the most rogue regimes, such a Assad’s, would only minimally offend the general notion of state sovereignty as this concept would continue to apply for all other law-abiding states. A modified system of international legal rules could preserve state sovereignty while allowing for a more robust (military) response in situations of humanitarian catastrophe, like the one ongoing in Syria.
In sum, international law in its current iteration remains powerless to impose true military restrictions on leaders like Assad. Several western nations have already discussed the possibility of staging a military intervention against Assad; such an intervention, absent Security Council authorization, would be illegal under international law. Intervening nations could choose to ignore international law and act in a military manner, in the face of the dire situation in Syria. This could, in turn, weaken our international legal order, by exposing its limitations and by demonstrating that nations are willing to ignore international law, because this law imposes unreasonable restraints. However, international law, if modified, could contain legal tools that would enable nations to lawfully intervene against leaders like Assad. This solution may be preferable in the long-term, as it would allow lawful state action against offending regimes, and as it would allow international law to develop small limitations on state sovereignty, for the sake of protecting populations from harm directed at them by their own leaders. International law’s limits are underscored by the situation in Syria. In the future, however, international law does not have to remain powerless.

International Law And National Security: A View From Abroad On Current Trends In Targeting, Detention, And Trials

On May 18, from 6-7:30 pm, in Cardozo Law School’s Moot Court Room, the International Committee of the Red Cross and Cardozo Law School will co-host an essential program for anyone interested in the application of international law to national security.

This event will feature some of the most active and respected experts in the field from abroad to discuss their view of international law and national security in the United States and around the globe in light of recent political upheavals. The panel will be moderated by yours truly (Prof. Beth Van Schaack of Stanford Law School).

For further information, please see the flyer below. There will be a reception after the event.

To register: Eventbriteppflyernorsvp.

Syria: The (Il)legality of the United States’ Use of Force Against Assad

On April 6, the United States unilaterally used force in Syria, against President Assad’s regime, in response to Assad’s alleged use of chemical weapons against a Syrian town and region.  Despite a humanitarian crisis that has been ongoing in Syria for several years, the United Nations Security Council has remained deadlocked, in light of the Russian and Chinese veto regarding any resolution that would have authorized a multilateral use of force.  The United States thus acted alone – potentially breaching both international and domestic law.  This post will examine the legality of United States’ actions under international and domestic law. 

Article 2(4) of the United Nations Charter prohibits states from using force against the territorial integrity or political independence of another state.  The only two exceptions to this general ban on the use of force involve Security Council authorization and self-defense.  The United States’ use of force in Syria had not been authorized by the Security Council, because, as mentioned above, Russia and China have persistently threatened or used their veto power to block resolutions regarding Syria.  Moreover, the United States’ use of force in Syria was not an instance of self-defense.  States can use force in self-defense if they are under an armed attack, or if they are about to be attacked; Syria has not threatened any other nations, and certainly not the United States, and the latter was not in danger of an imminent attack by Damascus.  Thus, under a traditional interpretation of international law, the United States has used force illegally in Syria, in breach of treaty and customary international law. 

It should be noted that the United Nations Charter is a treaty, to which the United States is a party.  The obligation in Article 2(4), mentioned above, is a treaty provision which binds the United States.  Thus, this treaty provision would be considered as “supreme Law” of the land under Article VI of the U.S. Constitution.  As such, this provision becomes part of United States’ domestic law and binds the United States on the domestic level as well.  Congress can, under the so-called later-in-time rule, pass a federal statute which trumps an otherwise binding treaty provision.  However, Congress has very rarely done so regarding existing treaties (doing so would put the United States in breach of its international law obligation), and Congress has certainly not done so in this instance, regarding the use of force in Syria. 

Moreover, under domestic law, a United States President is supposed to ask authorization from Congress before using military force in another country.  As Marty Lederman has explained recently, there are three major theories as to when the President can use force unilaterally against another sovereign nation and without Congressional authorization:

“(i) almost never (i.e., only to repel actual attacks, and then only as long as Congress is unavailable to deliberate)–what one might call the “classical” position;

(ii) virtually always, up to and including full-scale, extended war–that was John Yoo’s position, adopted by OLC in the Bush Administration, at least in theory; and

(iii) only under a set of complex conditions that do not amount to “war in the constitutional sense,” and only in conformity with legal restrictions Congress has imposed (including the War Powers Resolution)–a middle-ground position that I denominated the Clinton/Obama “third way,” and which in effect has, rightly or wrongly, governed U.S. practice for the past several decades.”

Marty Lederman had, in a 2013 post, elaborated as follows on the middle ground view:

“Between these two categorical views is what I like to call the Clinton/Obama “third way”—a theory that has in effect governed, or at least described, U.S. practice for the past several decades.  It is best articulated in Walter Dellinger’s OLC opinions on Haiti and Bosnia, and in Caroline Krass’s 2011 OLC opinion on Libya.  The gist of this middle-ground view (this is my characterization of it) is that the President can act unilaterally if two conditions are met:  (i) the use of force must serve significant national interests that have historically supported such unilateral actions—of which self-defense and protection of U.S. nationals have been the most commonly invoked; and (ii) the operation cannot be anticipated to be “sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause,” a standard that generally will be satisfied “only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period” (quoting from the Libya opinion).”

Assuming that the middle ground view is correct- that the President can decide to use force without Congressional approval in limited circumstances – the current use force against Assad cannot be easily justified.  As others have pointed out, the closest precedent for the unilateral use of force in Syria may be the United States’ and NATO use of force in Kosovo in 1999, under the Clinton Administration.  The United States never advanced a legal rationale for its use of force in Kosovo, relying instead on a policy argument that Kosovo was sui generis.  Kosovo was arguably a better case than Syria, because the military intervention in Kosovo had been staged by NATO, not by the United States acting alone, and because the United Nations had already been involved in Kosovo, unlike in Syria.  Thus, Kosovo may not provide the best precedent for Syria.  In addition, adopting the above-mentioned middle ground view on the President’s ability to use force unilaterally, it is difficult to argue that the use of force in Syria will serve significant national security interests, such as self-defense or the protection of American nationals.  It remains to be seen whether the United States’ use of force in Syria will entail an extensive and prolonged military engagement, requiring Congressional approval, or if it will instead be comprised of a time-limited and precise series of strikes not involving exposure of United States’ military personnel.  As of today, however, it is difficult to argue that President Trump should not have sought Congressional approval for the use of force in Syria.

Can the United States’ military actions in Syria be justified on either the international or domestic planes?  First, regarding international law, Harold Koh has argued that the unilateral use of force against a sovereign state can at times be justified under the developing norm of humanitarian intervention.  According to Koh, the following conditions must be met in order for a state to be able to invoke the humanitarian intervention exception to international law’s general ban on the use of force:

“(1) If a humanitarian crisis creates consequences significantly disruptive of international order—including proliferation of chemical weapons, massive refugee outflows, and events destabilizing to regional peace and security—that would likely soon create an imminent threat to the acting nations (which would give rise to an urgent need to act in individual and collective self-defense under U.N. Charter Article 51);

(2) a Security Council resolution were not available because of persistent veto; and the group of nations that had persistently sought Security Council action had exhausted all other remedies reasonably available under the circumstances, they would not violate U.N. Charter Article 2(4) if they used

(3) limited force for genuinely humanitarian purposes that was necessary and proportionate to address the imminent threat, would demonstrably improve the humanitarian situation, and would terminate as soon as the threat is abated.

In particular, these nations’ claim that their actions were not wrongful would be strengthened if they could demonstrate:

(4) that the action was collective, e.g., involving the General Assembly’s Uniting for Peace Resolution or regional arrangements under U.N. Charter Chapter VIII;

(5) that collective action would prevent the use of a per se illegal means by the territorial state, e.g., deployment of banned chemical weapons; or

(6) would help to avoid a per se illegal end, e.g., genocide, war crimes, crimes against humanity, or an avertable humanitarian disaster, such as the widespread slaughter of innocent civilians, for example, another Halabja or Srebrenica. To be credible, the legal analysis of any particular situation would need to substantiate each of these factors with persuasive factual evidence of: (1) Disruptive Consequences likely to lead to Imminent Threat; (2) Exhaustion; (3) Limited, Necessary, Proportionate, and Humanitarian Use of Force; (4) Collective Action; (5) Illegal Means; and (6) Avoidance of Illegal Ends.”

It is unclear whether these conditions have been met in Syria – for example, it is unclear that the Trump Administration is acting consistently with condition 3, and it is unquestionable that the American unilateral action does not satisfy condition 4.  Moreover, Koh’s proposed framework is doctrinal in nature and does not reflect the current status of international law – unless one assumes that Syria is a law-breaking moment and that the evolution of international law requires the breaking of existing international law norms (a point of view which many scholars would disagree with).  Finally, it is also unclear that the use of chemical weapons is prohibited in non-international armed conflict; chemical weapons are banned in international armed conflict and their use is certainly morally abhorrent, but it is not legally clear that chemical weapons are always prohibited in internal and non-international warfare (the use of chemical weapons in international armed conflict is not prohibited by treaty law although it may be argued that it is prohibited under customary law).  And, even if chemical weapons were prohibited in non-international armed conflict, a violation of jus in bello does not provide justification for the use of force against a sovereign state – a point which Koh’s framework ignores (arguably because Koh’s framework focuses on the protection of human rights, which justifies the conflation of jus in bello and jus ad bellum norms). 

On the domestic level, the United States’ use of force in Syria could be justified if one adopts the Yoo/Bybee view, that President can always act alone, without Congressional approval, or if one adopts the middle ground view and concludes that the action in Syria advances national security interests and is so limited in time and scope that it falls outside of a traditional “war.”  As mentioned above, it is unclear as of today what the Syrian military action will entail and it is uncertain whether the strikes will remain limited in duration and scope and whether United States’ military personnel will not be exposed. 

Thus, it is difficult to construct the legal argument that the United States’ use of force in Syria is legal under both international and domestic law.  While military action may be the morally correct response to Assad’s slaughtering of civilians, it appears that the United States’ actions lack a solid legal basis. 

On the Job! Gender Project Consultant in NYC; Clinical Fellow @ Duke Law

On the Job! compiles interesting vacancy notices, as follows:

logoThe Global Coalition to Protect Education from Attack. Applications are welcome from Ph.Ds, Ph.D candidates or other advanced research training in fields such as gender, human right, humanitarian assistance or education for the position of GCPEA Gender Project Consultant.  The holder of this position will conduct research and develop gender-specific recommendations on protecting girls and women from attacks on education and military use of educational institutions. They will work approximately 65 days between April and November 2017, presenting research to the GC{EAGender Project Working Group and external reviewers. Applications will be reviewed as received until the position is filled; details here.

download► Duke University Law School. Applications are welcome from individuals with 2-5 years experience with international human rights for a supervising attorney/clinical fellow to join the international human rights program and clinic beginning in Summer 2017, led by Professor Jayne Huckerby. The holder of this position will primarily help supervise student fieldwork in Clinic projects and participate in the planning and teaching of the Clinic advocacy seminar, among other opportunities, supervised by the Director of the International Human Rights Clinic. Deadline is April 16, 2017; details here.