ICC extends War Crimes of Rape and Sexual Slavery to Victims from Same Armed Forces as Perpetrator

Readers of this blog will be interested in an important decision issued by Trial Chamber VI of the ICC in the case of Ntaganda yesterday. At issue was the Defence’s argument that the Court could not have jurisdiction over the crimes of rape and sexual slavery allegedly committed against UPC/FPLC child soldiers, because war crimes cannot be committed against combatants from the same armed forces as the perpetrator. Such crimes, the Defence argued, would come within the ambit of domestic law and human rights, and were not covered by the war crimes prohibition.

Initial appearance of Bosco Ntaganda, 26 March 2013

Bosco Ntaganda. Picture credit.

The argument, on its face, is rather convincing – the Geneva Conventions and their Additional Protocols explicitly protect certain categories of persons, principally sick, wounded and shipwrecked persons not taking part in hostilities, prisoners of war and other detainees, civilians and civilian objects. Ntaganda is charged with these crimes under Article 8(2)(e)(vi) of the ICC Statute, which defines the war crime as:

Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;

The chapeau of Article 8(2)(e) enumerates the crimes therein as being ‘other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law’. It stands to reason, then, that we would examine that established international law framework in seeking to determine whether fellow combatants from the same armed forces as the perpetrator are protected by that framework.

Common Article 3 refers explicitly to ‘persons taking no active part in hostilities’, while Article 4 of Additional Protocol II (which contains the prohibition on outrages upon personal dignity, rape, enforced prostitution and any form of indecent assault) applies only to those ‘persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted’.

The most obvious way to resolve this issue would seem to be to acknowledge that Article 8(2)(c) and (e) crimes cannot be committed against those actively taking part in hostilities, but to argue that those victims identified in paragraphs 66-72 of the Confirmation Decision as having been abducted to act as domestic servants and, in the words of one witness, provide ‘combined cooking and love services’ were obviously not actively taking part in hostilities.

Yet, other victims mentioned in the Confirmation Decision acted as bodyguards, while other young girls abducted by the UPC/FPLC and later raped by soldiers in camps underwent military training, from which we can assume that they probably carried out some military functions. The issue here is that the Trial Chamber in Lubanga embraced a much broader definition of ‘active participation in hostilities’, in order to include a wide range of children who were forcibly recruited as victims under Article 8(2)(e)(vii). It determined, in paragraph 628, that:

Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants.

At the time of the Lubanga judgment, several authors noted that this expansive definition may have unintended negative consequences for the protection of children in armed conflict. For example, Nicole Urban argued that, ‘Should the sexual exploitation of and violence against child soldiers render them ‘active’ participants in hostilities under one Article, there is a real risk that they will also be considered as active participants in hostilities under the others.’ In a sense, the chickens have now come home to roost, as the Court in Ntaganda has to marry that interpretation, which seeks to protect child soldiers as victims of forcible recruitment, with an interpretation that includes them within the ambit of Article 8(2)(e) when they become victims of other war crimes.

The Pre-Trial Chamber took the position that individuals only lose their protection ‘for such time’ as they are actively participating in hostilities, and that those who were raped and subjected to sexual violence were clearly not participating in hostilities at that time. This interpretation is somewhat problematic, as it sidesteps the situation of those members of the armed groups who bear a ‘continuous combat function‘.

Trial Chamber VI in yesterday’s decision took a rather different approach, by determining that:

While most of the express prohibitions of rape and sexual slavery under international humanitarian law appear in contexts protecting civilians and persons hors de combat in the power of a party to the conflict, the Chamber does not consider those explicit protections to exhaustively define, or indeed limit, the scope of the protection against such conduct. (para. 47)

It went on to conclude that, because the prohibition of rape had attained jus cogens status under international law (para. 51), ‘such conduct is prohibited at all times, both in times of peace and during armed conflicts, and against all persons, irrespective of any legal status’, and that it did not, therefore, need to determine whether the victims were ‘members’ of the armed forces at the relevant time (paras. 52-53).


 Judge Kuniko Ozaki, one of the three Trial Chamber judges. Picture credit.


This decision neatly sidesteps the issues surrounding the notion of active participation in hostilities raised by the Lubanga judgment. Yet, the conclusion that members of the same armed force are not per se excluded as potential victims of war crimes is a very expansive interpretation of Article 8, and one that is not fully reasoned in the judgment. The decision appears to be founded on two separate aspects.

The first is that not all war crimes need to be committed against protected persons (para. 37). The Chamber referenced a number of sub-paragraphs of Article 8(2)(e) in this regard, namely Articles 8(2)(e)(ix) and (x) on perfidy and denying that no quarter will be given, in support of this argument. This is not entirely convincing, as Article 8(2)(e)(ix) explicitly refers to killing or wounding ‘a combatant adversary’ treacherously. Article 8(2)(e)(x), prohibiting a declaration that no quarter will be given, is explicitly prohibited because it would result in the killing of persons hors de combat.

The second justification for the decision appears to be the widespread prohibition of rape and sexual violence under international humanitarian law. The Chamber considered that to limit the protection against rape to exclude members of the same armed group would be ‘contrary to the rationale of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict, without banning belligerents from using armed force against each other or undermining their ability to carry out effective military operations.’ Given that there could be no military objective or justification to engage in sexual violence against any person, regardless of whether or not that person was a legitimate target under the law of armed conflict, the Chamber considered that the prohibition of sexual violence under International Humanitarian Law was not limited to certain categories of persons, and that anyone could be a victim of this war crime. This justification is more convincing, but leaves many questions unanswered, as it seems to be limited to the prohibition of rape (which the Chamber considered to be a jus cogens norm of international law). We might ask, for example, whether armed forces who commit acts of humiliating or degrading treatment against their own members, or who deny those members a fair trial, may now find that they are committing war crimes under Article 8 of the ICC Statute.

This decision is clearly founded in a desire to offer the greatest level of protection to victims of sexual violence in armed conflict, regardless of their status. A similar argument was made in the ICRC’s updated commentary to Common Article 3 of the Geneva Conventions, which stated that ‘all Parties to the conflict should, as a minimum, grant humane treatment to their own armed forces based on Common Article 3.’

It will certainly be interesting to see what states’ reactions to this expansive interpretation, and what the broader consequences of this decision, will be.

(Cross-posted from PhD Studies in Human Rights)

Call for Papers: 2017 AHRI Conference

The Promotion and Enforcement of Human Rights by International and Regional Organizations: Achievements, Challenges and Opportunities

Conference: 27-28 April 2017, Leuven (BE)
Deadline for abstract submissions: 2 January 2017

The Association of Human Rights Institutes (AHRI), the FRAME Project and the Leuven Centre for Global Governance Studies (KU Leuven) are pleased to announce a call for papers for the 2017 AHRI Conference, which will be held in Leuven. This international conference aims to take a broad and comparative view of the achievements and potential, but also of the challenges of international and regional organizations in promoting and enforcing human rights. Further details of the call can be found in the attached document.
Leuven Centre for Global Governance Studies, KU Leuven
Charles Deberiotstraat 34
3000 Leuven
+32 16 32 87 25

The Trial of Hissène Habré

CAE from afarOn May 30, the Chambres Africaines Extraordinaires (CAE) will announce its verdict in the trial of Chad’s ex-dictator Hissène Habré. Conviction is expected. What will it mean?

The trial of Chad’s Hissène Habré by an ad hoc court in Senegal is making history, and more is expected in the Judgment, scheduled for May 30, 2016. Habré’s trial represents many firsts: it is the first trial of the leader of one country by courts of another, and the first exercise of universal jurisdiction in Africa. The trial is taking place before the CAE, a hybrid judicial product governed by a statute resolved between Senegal and the African Union (AU) employing Senegalese procedure and international criminal law content.

In advance of the expected judgment, this post considers three victors of the CAE, what the trial means for Chad, and what to watch in the post-judgment phase.

The CAE’s Victors:

First, the trial is a triumph for the coalition of international NGOs and Chadian victims that have agitated for recognition of state-sponsored atrocity in Chad since Habré fled in 1990, and perhaps for the broader question of universal jurisdiction more generally. Human Rights Watch’s Reed Brody, a central figure in the effort, deliberately elected Habré’s asylum in Senegal as the place to make this stand, and the trial is the result of two decades of efforts, passing through multiple domestic and international institutions (courts in Senegal, Belgium, Chad, ECOWAS, ICJ and even the fledgling African Court of Human and People’s Rights).

Second, the trial appears to be a triumph for Senegal. Nearly everyone – from foreign diplomats to the proverbial man on the street – describes the trial as “well-run”. The trial stayed within its modest 8.6 million euro budget and, provided the scheduled judgment is issued as predicted, nearly within its timeline. Witnesses appeared when planned and none of them perished or disappeared. Even the resistant Habré was effectively contained: after his first days of bitter resistance, where he fought his guards and was ultimately carried to his seat and physically restrained once there, the Chambers began seating him before the trial began. In this way, Habré’s resistance – beyond his total silence – effectively became a non-news item. Overall, the trial highlighted Senegal’s position as a long, stable democracy with a vital civil society sector, unique to the region. In an African power structure where South Africa is wealthy and Nigeria has vast resources, Senegal has further carved out a position as a regional rule of law expert.

Finally, the trial is arguably a triumph for the International Criminal Court (ICC), though it may be a Pyrrhic. To the degree that the trial follows the tenets underwriting the ICC – the appropriateness of legal responses to atrocity, and the centrality of combating impunity for leaders – the trial can be understood to shore up the ideological foundation of the ICC, and thereby its work. Senegal officially maintains its support for the ICC, and officials at the CAE and within the Ministry of Justice represent the CAE as an institution in line with, not in conflict with, the ICC. On the other hand, the trial can be read as an example of local alternatives to the ICC, and is supported by powers (the AU, Chad) that openly oppose the ICC. Moreover, the lean efficiency of the CAE stands in stark contrast to the ICC’s unwieldy behemoth. For example, the CAE’s four investigative judges, who completed the impressive work of roping international criminal law and the facts (2500 witnesses, 4000 documents) into the 160 page Ordonnance did this by themselves, with no clerks or researchers, over the space of 19 months. The Court Administration, responsible from soup to nuts, from hiring personnel to housing witnesses, has a staff of three. Continue reading

‘It is a cold liaison!’ Military perceptions of humanitarian distinction


‘You are the company commander today. Your task is to negotiate access to land with the local mayor in order to secure a new space for our military hospital, which has flooded.’ After a brief strategy session, my team proceeds to the negotiation table. I am seated directly across from the local mayor and his businessman friend, and I have one hour to convince these civilians to help me.

This is not a story from a conflict zone, though it is a theatre of sorts. The scenario unfolds on a military base in Italy, where a training run by the NATO Multi-National CIMIC (civil-military cooperation) Group is underway. The ‘mayor’ and ‘businessman’ are members of the Italian armed forces performing the role of civilians, while I, in turn, am a civilian acting as a military commander. How did I come to be involved in such civil-military shape shifting?

Attacks against humanitarian aid workers have attracted considerable attention in recent years, especially the October 2015 bombing of the Medecins Sans Frontieres hospital in Kunduz, Afghanistan. Important legal and operational measures have been proposed to bolster aid worker protection and, crucially, attempts are being made to better understand the causes of violence against aid workers. The roles played by other actors, such as international militaries, are being examined and there is renewed interested in bolstering guidance on humanitarian-military interactions  (e.g.  IASCMCDA, and country-specific guidelines).

The public conversation about aid worker security has opened a window for reflecting on the humanitarian-military relationship more broadly. As a former aid worker myself, I am intimately acquainted with efforts humanitarians make to separate themselves from military actors—often by appealing to a protected civilian status in IHL. Less clear is how these attempts are perceived from the other side. And so I am attending this NATO training and others like it to investigate how military actors learn about, make sense of, and respond to the humanitarians they meet in armed conflict contexts.

As the civilian humanitarian trainers at NATO emphasize, perceptions are paramount. One trainer states: ‘Beyond following the humanitarian principles, I must be perceived as following them, by the population, by the army, by the government…’ Another adds, ‘it’s all about perceptions—that’s the pin that I dance on.’

Military trainees are taught that their direct engagement in humanitarian-type activities is problematic for humanitarians, who fear the ‘association, mobilization, and utilization of humanitarian assistance to achieve other objectives.’ One military trainer advises: ‘You have to watch for mission creep, you can’t send the wrong message to the public.’ Another touches on general issues of proximity: ‘If they share a room and coffee with us, they can be seen as taking sides by people outside.’

How do the military trainees receive these lessons?

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Go On! Program of Advanced Studies on Human Rights and Humanitarian Law

The Program of Advanced Studies on Human Rights and Humanitarian Law takes full advantage of the American University Washington College of Law’s location in Washington, D.C., by giving participants unrivaled opportunities to meet policy makers, visit influential international organizations, and attend a multitude of international events. The program is a venue for total immersion into the realm of human rights and humanitarian law provided in an intense three-week format that enables individuals with limited time to develop their skills and gain practical experience.


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Go On! Geneva Academy new Master of Advanced Studies on Transitional Justice, Human Rights and the Rule of Law (deadline 29 Feb.)


The Geneva Academy of International Humanitarian Law and Human Rights has launched a new Master of Advanced Studies on Transitional Justice, Human Rights and the Rule of Law (September 2016–August 2017). Based in Geneva, this one-year program combines in-depth theoretical knowledge with ‘real world’ perspectives. The Faculty comprises leading scholars and practitioners working in the area of transitional justice, human rights and the rule of law – including Professor William Schabas, Dr. Rama Mani and Professor Christof Heyns, UN Special Rapporteur extrajudicial, summary or arbitrary executions. The deadline to apply is 29 February (with scholarship request) or 31 March (without).

One of the special features of the program is a concern to link academic teaching and research with practical work and professionalizing activities. The program offers students access to work experience in leading international agencies dedicated to transitional justice, human rights and rule of law concerns. Throughout the year, a transitional justice clinic will be held to serve as a platform for students to share their practical experiences and to facilitate dialogue and critical reflection on specific cases and situations.

The program adopts a highly personalized approach to teaching and academic life by providing individualized guidance and one-to-one counseling for students, namely via personalized academic mentoring, career coaching and the coordination of internships. For more information, visit http://www.master-transitionaljustice.ch.

Strike at Kunduz: Did the United States Violate International Humanitarian Law?

Reports recently surfaced that United States forces carried out an air strike against a Doctors Without Borders (Medecins Sans Frontieres) hospital in Kunduz, Afghanistan. Twenty-two civilians died as a result of the attack – twelve Doctors Without Borders staff members and ten patients; thirty-seven additional individuals were injured during the attack. By all accounts, the United States-executed bombing took place as part of a larger military operation to re-capture Kunduz from the Taliban forces. The strike was horrific, as described by a Doctors Without Borders President, Dr. Joanne Liu:

“Our colleagues had to operate on each other. One of our doctors died on an improvised operating table — an office desk — while his colleagues tried to save his life.”

This post will explore the most relevant question: whether the United States’ bombing of the Doctors Without Borders hospital constituted a violation of international humanitarian law and whether the individuals responsible for this operation committed a war crime?

The answer to the above question is not easy and it depends on numerous factors, including an accurate factual accounting of what truly happened. The United States’ government first claimed that the bombing was a mistake; that narrative changed over the last few days, when Gen. John F. Campbell, the American commander in Afghanistan, offered detailed congressional testimony to lawmakers, and clearly stated that the attack was “a U.S. decision made within the U.S. chain of command.” President Obama himself officially apologized to Dr. Liu. According to White House officials, President Obama also told Dr. Liu that he would make any changes necessary to ensure that such incidents were less likely in the future, and he promised a “full accounting” of who was to blame, and whether the military’s rules of engagement needed to change. In addition, Doctors Without Borders have confirmed to the press that they shared the hospital’s GPS coordinates with the United States’ military numerous times, including as late as September 30. In light of General Campbell’s testimony, President Obama’s apology to Dr. Liu, and the fact that Doctors Without Borders shared the hospital’s precise location with the United States’ forces very recently, it seems unlikely that the bombing was simply a mistake. Jonathan Horowitz on Just Security has already laid out four different hypotheticals for what could have led the United States to conduct the attack against the Doctors Without Borders hospital; two of these hypotheticals include scenarios where the United States did not know that it was bombing a hospital. This post will discard these two hypotheticals because it seems implausible, in light of recent developments, that the United States’ military did not know that it was attacking a hospital. Two other plausible scenarios which Horowitz correctly lays out include the possibility that the United States intentionally targeted the hospital which was being used for medical services only, or that the United States intended to bomb Taliban fighters who it believed were located either in the hospital or somewhere nearby. If either of the latter two factual scenarios were true, did the United States violate international humanitarian law? Most likely – yes.

Civilians, as well as hospitals and medical professionals cannot be an object of an attack under international humanitarian law – even if the enemy is receiving medical treatment inside a hospital. Hospitals lose their protected status only if they are being used by the enemy to launch attacks. However, even if a hospital becomes a legitimate target of a military attack, international humanitarian law’s principle of precautions still requires that the attacker take precaution to minimize or avoid harm to civilians. Principle of proportionality additionally requires that attacking forces must ensure that the attack will not cause civilian harm excessive to the anticipated military advantage. If one assumes that the United States deliberately targeted a hospital which was being used for civilian and medical purposes only, then the United States violated international humanitarian law, and individuals involved in these attacks committed war crimes. Even if the attacked hospital had been treating Taliban fighters, the same conclusion would apply because, as stated above, hospitals do not lose their protected status under international humanitarian law if they are treating enemy forces.

If the United States attacked the hospital because it suspected that Taliban fighters were located near or in the hospital itself, the relevant principles of precautions and proportionality would still apply. The United States would have to demonstrate that its forces took appropriate precautions – that those who planned the attack chose the most appropriate means and methods in order to avoid or minimize incidental loss of civilian life, and injury to civilians and civilian objects. In addition, the United States would have to show that it conducted an appropriate proportionality assessment – that its military commanders knew, when ordering the strike against the hospital, that civilians would be killed and/or injured, but that they concluded that military advantage gained from the attack would outweigh civilian harm. In other words, the principle of proportionality authorizes military attacks if the expected civilian harm is not excessive to the anticipated military advantage; those carrying out the attack have an obligation to cancel or suspend the attack if it becomes apparent that the attack will not be proportionate. It is unclear, at best, that the United States will be able to prove that its military actions against the hospital in Kunduz satisfied the principles of precautions and proportionality. The general public is still in the dark regarding more specifics about United States’ targeting operations in Kunduz and how important the attack against the hospital was in relation to the overall military strategy in this region. What is clear, however, is that the civilian harm caused by the attack was significant, and that the United States has a lot of explaining to do in order to justify this attack. In addition, the United States would only be justified in attacking the hospital if it could demonstrate that the Taliban fighters present in the hospital or its vicinity were launching attacks themselves against United States’ forces (as stated above, if Taliban fighters were in the hospital because they were receiving medical treatment, then the hospital could not become a legitimate military target). Doctors Without Borders has vehemently disputed any such allegations, and it is not clear as of now what the United States’ government’s position on this issue is.

The only way that we may find out what truly happened in Kunduz is through an independent investigation. Thus far, the United States has committed to conducting an investigation by the Department of Defense. In addition, NATO and a joint United States-Afghan group will also investigate. Doctors Without Borders has called for a separate independent investigation by the International Humanitarian Fact-Finding Commission. The Commission is a body set up under the Geneva Conventions which can investigate violations of international humanitarian law; however, affected countries (here the United States and Afghanistan) must consent. It is unlikely that either will. Because of the gravity of the alleged conduct, they clearly should. A military investigation conducted by the military which itself may have carried out the illegal operation is insufficient and inappropriate.

Read On! Starvation as a Weapon – Domestic Policies of Deliberate Starvation as a Means to an End under International Law

The media’s fondness for images of cracked earth and withered crops gives us the impression that famine is caused by forces beyond human control. In reality, however, famines are often strategic, deliberately engineered by governments or their opponents, in a calculated effort to achieve their political ends. When humanitarian aid was blocked in Somalia by the Al-Shabaab rebels, or the fields and forests of certain ethnic groups were targeted in Darfur, the decision to deprive the population of food was political. In the smouldering conflict in Yemen, the biggest problem that civilians face is hunger. Hilal Elver, the UN Special Rapporteur on the Right to Food, just warned last week of deliberate starvation of civilians in Yemen.
But starvation is not just used as a military weapon; it is often deployed for political or economic purposes. In 2002, the president of Zimbabwe implemented a land reform that returned white-owned land to black Zimbabweans. This mass eviction, conducted without appropriate compensation, resulted in mass starvation. In this case, the Zimbabwean government not only deprived people of their livelihoods, but also restricted international food aid, allegedly wielding food supplies as a political weapon against opposition supporters.
A close look at modern famine shows that, in many cases, food scarcity is not the product of coincidence. Instead we see that many famines are side effects of, or the result of a deliberate strategy. There are some who argue persuasively that all famines in the 20th century were resulted from, or were exacerbated by political manoeuvring. War and repressive government policies can play a significant role in famines even when drought or flood are proximate causes. In a world where munitions are expensive, famine is a low-cost method of political coercion, and of waging war. It is a readily available weapon even in the least developed nations. Politicians and military leaders know how to leverage access to food, and can use it to their own benefit. It is an efficient instrument when used to exert pressure and power, in times of war and peace.
How does the framework of international law prevent deliberate starvation as a means of achieving political goals? What duties do the human rights obligations to respect, protect, and fulfil impose on states with respect to famines? And what prohibitions does international humanitarian law offer against deliberate starvation?
The book Starvation as a Weapon considers, within the framework of international law, the legality of using deliberate starvation as a means to an end. The analysis focuses on instances in which deliberate starvation is deployed domestically, i.e. carried out within the state’s own national territory. Domestic starvation policies are often poorly reported and deliberately concealed by the perpetrators. In countries where malnutrition is already widespread, emerging famines often go unnoticed by the international community. Famines are also highly divisive; few affect more that 5-10% of the overall population, so they may be invisible within a state. Famines may even be created in states where food is abundant. Lack of transparency often makes it difficult or impossible to scrutinise the domestic policy behind prevailing food scarcity; for example, they may not be detectible through the media blockade erected by a totalitarian regime.

On the Job! American Red Cross hiring an IHL Legal Advisor

The American Red Cross (ARC) International Services Department (ISD) is hiring a Legal Advisor in the area of International Humanitarian Law (IHL).


The Legal Advisor will work as part of the IHL team where he/she will teach an IHL CLE/professional course; assist with research, writing and analysis on IHL and conflict-related issues; and will support the team in complementing and revising educational materials on IHL to highlight the contemporary relevancy of humanitarian issues. Knowledge of international humanitarian law required and a strong interest in international issues, public international law, human rights and international relations or related fields is essential. This position will report to the Director, International Humanitarian Law.


• Lead NHQ hosting of the Clara Barton IHL Competition, conferences, meetings, webinars, as required
• Organize law school workshops in key regional cities/hubs with law school partners
• Conduct research on IHL and policy-related areas and draft memoranda on relevant issues of IHL as needed for program development
• Track and identify current events and relevance to IHL and prepare updates on developments in IHL
• Draft talking points, backgrounders, potential presentation material to support our IHL networks
• Develop supplemental materials for IHL teaching materials, presentations, other events
• Attend briefings/conferences on IHL-related issues and provide updates of key points to IHL team
• Develop and foster networks for possible partnerships with actors within legal community and external audiences (law schools, faculty, professional associations, etc.)
• Assist with content and messaging for social media tools
• Supervise IHL legal interns
• Support the IHL CLE/professional training courses, as needed
• Perform other job-related duties, as assigned.

For more information and to apply, please visit https://www.americanredcross.apply2jobs.com/ProfExt/index.cfm?fuseaction=mExternal.showJob&RID=56011&CurrentPage=1.

Why international law matters in outer space – Part 2: because, military!

In the first part of this blog post yesterday, I described the extent to which we are dependent on space technologies for our daily activities, and the role of international law.  But what about military activities? Right from the beginning of the space race between the USSR and the USA in the 1960s military technology has been at the forefront, and until recently it was what drove most innovation in space. Indeed, GPS was a US military invention, and they decided to share it’s benefits for civilian use. Intelligence gathering by remote satellite imaging, as well as communications, GPS for aviation and marine operations, and many drone and weapons technologies are highly dependent on high-tech satellite networks. How does international law apply to this 21st century environment?


The notion of “space warfare” may not be something that belongs to a long time ago in a galaxy far, far away; in fact many people refer to the Iraq war in the 1990s and the US-led “Operation Desert Storm” as the first space-led war. There was a significant reliance on satellite imaging and telecommunications as an integral part of that operation. These days most Western naval, air and army units rely on multiple forms of space technology, as do Russia and China. In the last year the US has increased it’s “big data” reliance , making such satellites very precious assets.  Recently, North Korea has been launching objects which many worry are not just rockets, but rather anti-satellite weapons. Where space used to be considered the ultimate military “high ground”, it is now accessed by many more States, and if these space assets can be targeted by adversaries, dependence can lead to vulnerability during a conflict.

Worryingly, a recent report on 60 Minutes titled “The Battle Above” painted a fairly dire picture of outer space as a “wild west” when it comes to military activities, asserting that there is essentially no law regulating this new potential battlefield and that it is every country for itself. And even when speaking to people who specialise in “space security”, I have heard many express the concern that military activities in outer space take place in a legal vacuum.

I would beg to differ, and thankfully I am not alone.

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