international humanitarian law

draftpolicyIt is my great honor to note today’s release for public comment of the draft Policy on Children of the International Criminal Court Office of the Prosecutor.

Since my December 2012 appointment as Prosecutor Fatou Bensouda’s Special Adviser on Children in and affected by Armed Conflict, I’ve had the privilege of helping to convene consultations and taking part in the construction of this draft Policy. As part of that process, as noted on page 11 of the draft, we at the Dean Rusk International Law Center, University of Georgia School of Law, were honored in October 2014 to host the Prosecutor, members of her staff, and nearly 2 dozen other experts from academic, nongovernmental groups, and intergovernmental organizations. Our “Children & International Criminal Justice” conference featured a morning public plenary and Prosecutor’s keynote (pictured below), followed by an afternoon of closed-door breakout sessions. (Proceedings from that event, to appear in our Georgia Journal of International & Comparative Law, are nearing publication.)

Addressed in the draft Policy, which spans 37 pages, are:

► Overarching concerns, such as the nature of a child and childhood, the experiences of children in armed conflict and other contexts within the jurisdiction of the ICC, and how the Rome Statute of the ICC and other documents treat crimes against and affecting children; and

► Practical concerns, such as how the Office of the Prosecutor engages with children, in all aspects of its work, including preliminary examination, investigation, charging, prosecution, sentencing, reparations, and external relations.

As stated in the press release accompanying today’s publication:

In highlighting the importance of the Policy, Prosecutor Bensouda stated: “when I assumed 8_events2the role of Prosecutor in June 2012, one of the principal goals I set for the Office was to ensure that we pay particular attention not only to ‘children with arms’, but also ‘children affected by arms.’ This Policy demonstrates our firm commitment to closing the impunity gap for crimes against or affecting children, and adopting a child-sensitive approach in all aspects of our work bearing in mind their rights and best interests. It is also our hope that the Policy, once adopted, will serve as a useful guide to national authorities in their efforts to address crimes against children.”

The Office welcomes public comment on the draft. Such comments should be e-mailed to OTPLegalAdvisorySection@icc-cpi.int, no later than Friday, August 5, 2016.

Following revisions based on the comments, the Office of the Prosecutor expects to publish the final Policy on Children in November of this year.

davisetal

Alumna Tess Davis, 2d from left, met with Georgia Law 1Ls after her lecture; from left, Hannah Williams, Ava Goble & Karen Hays. Hannah will work on cultural heritage issues this summer through a Global Externship Overseas (GEO) at the Cambodia Ministry of Culture & Fine Arts, Department of Intangible Cultural Heritage.

“As long as there have been tombs, there have been tomb raiders.”

So began the terrific talk on trafficking that Tess Davis, Executive Director of the D.C.-based Antiquities Coalition, delivered to a rapt University of Georgia audience a few days ago.

Having conceded the point quoted at top, Davis stressed that today the problem is much different and much greater. On the list of lucrative transnational organized crime, she asserted, antiquities trafficking places 3d, right behind arms trafficking and drug trafficking.

The threat is not simply one of criminal behavior, she continued. Rather, Davis stressed that profits from antiquities trafficking – profits believed to be in the millions of dollars – provide revenue vital for the nonstate actor waging armed conflict in Syria and Iraq. That entity calls itself “Islamic State” and is often labeled “ISIS” or “ISIL” in the media; taking a lead from diplomats in France and, recently, the United States, Davis preferred “Daesh,” the group’s Arabic acronym, for the simple reason that “they hate to be called that.”

Initially trained as an archeologist, Davis began to focus on legal means to combat antiquities trafficking while still a student at Georgia Law. Since earning her J.D. in 2009, she’s been a leader at the Lawyers’ Committee for Cultural Heritage and in the American Society of International Law Cultural Heritage & the Arts Interest Group, a researcher at Scotland’s University of Glasgow, a member of Georgia Law’s Dean Rusk International Law Center Council, and, as the photo above demonstrates, a mentor to Georgia Law students and other young lawyers interested in working in the field. Her efforts to help repatriate antiquities stolen from Cambodia earned multiple mentions in The New York Times.

Her talk drew links between the looting of cultural heritage during and after the 1970s Khmer Rouge reign of terror and current looting in the Middle East today. In both instances, she said, “cultural cleansing” – in the contemporary case, the destruction and thievery of monuments sacred to moderate Muslims and others – precedes and parallels efforts to erase and subjugate the humans who venerate those monuments. It’s a state of affairs documented in her Coalition’s new report, “Culture Under Threat.”

“The world failed Cambodia,”

Davis said, then expressed optimism at growing political will to do something about the Middle East. She advocated enactment of S. 1887, the Protect and Preserve International Cultural Property Act now working its way through Congress. The legislation, whose cosponsors include a Georgia U.S. Senator, David Perdue, is urgent: Davis estimated that U.S. buyers represent 43% of the current demand for looted Syrian antiquities.

(Cross-posted from Exchange of Notes blog)

Delighted to announce that among the accomplished international criminal law experts keynoting the International Humanitarian Law Dialogs, set for  August 31-September 1, 2015, will be 3 exceptionally accomplished women: Patricia Sellers, Patricia Wald, and Claudia Paz y Paz.

This year will be the 9th that international prosecutors and other experts gather at the lovely lakeside Athenaeum Hotel, located at the Chautauqua Institution in upstate New York, in order to take stock of developments in international criminal law. As its title indicates, this year’s theme commemorates two milestones: “‘The Wrongs We Seek…’ The Srebrenica Massacre 20 Years On — and in Commemoration of the Opening of the International Military Tribunal at Nuremberg 1945.”

And it’s the 5th that IntLawGrrls blog has had the honor of selecting the person who will deliver the lecture in honor of Katherine B. Fite, the State Department lawyer who helped Chief U.S. Prosecutor Robert H. Jackson with the drafting of the London Charter and other duties in preparation for the 1st postwar trial at Nuremberg. (My own 2011 Fite Lecture, which describes Fite’s career, is here.)

sellers► This year’s Fite Lecture, scheduled for the morning of Monday, August 31, promises to be a great conference-opening keynote. Sellers (right) serves as International Criminal Court Prosecutor Fatou Bensouda’s Special Adviser for Prosecution Strategies, having been appointed in December 2012 (at the same time that yours truly began similar service on issues related to children in and affected by armed conflict, and IntLawGrrl and Washington University-St. Louis Law Professor Leila Nadya Sadat on issues related to crimes against humanity). That role succeeds prior service as a legal advisor and trial attorney at the International Criminal Tribunals for Rwanda and for the former Yugoslavia, as well as expert consultancies to UN bodies, on matters related to children, gender, women, and investigations. Sellers, who is a Visiting Fellow at Kellogg College, Oxford University, has received multiple honors, including the American Society of International Law Prominent Women in Law award. (photo credit)

Introducing her will be IntLawGrrl Beth Van Schaack, whose titles include Leah Kaplan Visiting Professor in Human Rights, Stanford Law School, and Senior Adviser, Office of Global Criminal Justice, U.S. Department of State.

Claudia-Paz-y-Paz-Bailey► At lunchtime on the same day, Dr. Claudia Paz y Paz (left) is scheduled to deliver the Dialogs’ annual Clara Barton Lecture. (photo credit) As we’ve detailed in prior posts here and here, Paz y Paz is the former Attorney General of Guatemala who pursued a genocide prosecution, in national court, against Efraín Ríos Montt, the dictatorial President of Guatemala during the early 1980s. (Just last month, he was ruled mentally unfit to stand retrial on the charges.)

Introducing Paz y Paz will be Federico Barsillas Schwank, Legal Advisor, American Red Cross, Washington, D.C.

wald► The closing keynoter, after lunch on Tuesday, September 1, will be the Honorable Patricia Wald (right), who served as an ICTY judge at that tribunal’s first Srebrenica genocide trial. (photo credit) Her tenure at the ICTY followed a long career of service in the U.S. government, most notably as the 1st woman to serve as Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit. She continues to serve as an expert and advisor on numerous panels related to security and international criminal law. She honored IntLawGrrls in 2009 by contributing a series of 3 superb posts, available here, here, and here.

Yours truly will have the honor of introducing Judge Wald.

In addition to these headliners, the Dialogs will feature breakout porch sessions, led by us experts-in-residence (on subjects such as “The legacy of the International Military Tribunal at Nuremberg,” “Legacy of the ICTY,” and “Role of the ICC in the Middle East”), as well as many other events. Of particular note:

truthSunday, August 30

► Screening of Seeking Truth in the Balkans, a 2014 documentary on the work and legacy of the ICTY, by Erin Lovall and June Vutrano.

Monday, August 31

► Reflections by current and former international prosecutors, always a Dialogs highlight. Expected to take part this year are James Stewart (Deputy Prosecutor, International Criminal Court), Serge Brammertz (Prosecutor, ICTY), Andrew Cayley (Director of Service Prosecutions, United Kingdom), Hassan Jallow (Prosecutor, Mechanism for International Criminal Tribunals and International Criminal Tribunal for Rwanda), Nicholas Koumjian (Co-Prosecutor, Extraordinary Chambers in the Courts of Cambodia), Brenda Hollis (Prosecutor, Residual Special Court for Sierra Leone), David Crane (former Prosecutor, Special Court for Sierra Leone), Richard Goldstone (former Prosecutor, ICTY and ICTR), Desmond de Silva (former Prosecutor, SCSL), and Mark Harmon (formerly at ICTY).  Case Western Law Interim Dean Michael Scharf will moderate.

► Roundtable on the July 1995 “Srebrenica Massacre,” in which upwards of 8,000 Bosniak boys and men perished. Sadat will moderate a discussion among Judge Wald, former U.N. Legal Counsel Hans Corell, Professor William A. Schabas, and Mark Harmon, who resigned just weeks ago from his post as a judge at the Extraordinary Chambers in the Courts of Cambodia, the hybrid tribunal set up to try persons accused of criminal responsibility for the 1970s Khmer Rouge reign of terror.

► Keynote address by a representative of the Mayor of Nuremberg, the German city where the post-World War II Trial of the Major War Criminals opened 70 years ago, on November 20, 1945.

Tuesday, September 1

► Reflections by M. Cherif Bassiouni, Emeritus Law Professor, DePaul University.

► International criminal law year in review, by Washington & Lee Law Professor Mark A. Drumbl.

► Issuance of the 9th Chautauqua Declaration.

More information, including a registration form, may be found at the website of the Robert H. Jackson Center, a primary sponsor, here.

torturereportThis week has marked the 66th anniversaries of 2 watersheds: on Tuesday, the U.N. General Assembly’s adoption of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide, and on Wednesday, the same assembly’s adoption of the 1948 Universal Declaration of Human Rights. Together, they form 2 essential pillars of post-World War II human rights and human security.

This week also marked the release, on Tuesday, of the 524-page executive summary of the Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency’s Detention and Interrogation Programa study that, in full, spans 6,000 pages.

I was honored by an invitation to contribute my thoughts on the release of this so-called Torture Report to The New York Times‘ online Room for Debate forum, and so on Tuesday published an op-ed entitled “Officials Must Be Held Responsible for Torture.” Joining me in this forum were Hina Shamsi of the American Civil Liberties Union, Danielle Pletka of the American Enterprise Institute, Georgetown Law Professor David Luban, and Texas Law Professor Robert Chesney.

My own op-ed referred to structures of accountability common in the international arena; that is, truth commissions or commissions of inquiry. In this context, I saw the committee report as a step toward establishment of an historical record, yet advocated the pursuit of two additional pillars of accountability: a comprehensive analysis of aimed at reforming laws and institutions that permitted torture to occur, and Department of Justice investigation of the matter, with prosecutions to follow as appropriate. With regard to the latter, I wrote:

‘And those prosecutions must occur in courts of the United States. If they do not, indictments of Americans by other countries, or by international tribunals, must be expected.’

As a consequence of that op-ed, yesterday I joined American University Law Professor Steve Vladeck and Security Studies Professor Sebastian Gorka of the National Defense University, on a live segment of the Al Jazeera English program “Inside Story,” hosted by Ray Suarez. No public link’s available; suffice it to say that the spirited discussion included my reiteration of the need for 3-pillar accountability, as indicated below:

droneWhat once was a rather loud drone of debate over the use of armed, remote-controlled, aerial attack vehicles seems recently to have receded into background noise. Perhaps that’s in part because of newly perceived threats like ISIS — threats that many Americans, tired of U.S. ground-troop casualties, would rather see addressed by Reaper and Predator drones. (photo credit) Perhaps it’s because criticism of U.S. counterterrorism practices has muted since the days of the Bush Administration, or because reports of any such criticism now are relegated to the back pages of a few national newspapers.

A recent New Yorker article deserves to break through this complacent fog: “The Unblinking Stare: The drone war in Pakistan,” by Steve Coll, a Pulitzer Prizewinning reporter on national security issues and dean of the Columbia Journalism School. It’s a great synthesis of reportage on the origins and evolution of the program, coupled with commentary that raises questions all ought to be asking.

Of particular note:

► The recognition that the practice of “‘signature strikes'” — drone-killings of “armed military-aged males engaged in or associated with suspicious activity even if their identities were unknown” — stands at odds with settled law. Coll cites a 2013 report by Christof Heyns, U.N. Special Rapporteur on extrajudicial, summary, or arbitrary executions, for the proposition that such strikes do not fall under either “proper standard for attacking a person under the laws of war … ‘continuous combat function’ or … ‘directly participating in hostilities.'” (Coll might’ve gone a step further, and acknowledged that “continuous combat function” is a concept not established in written international humanitarian law, and thus itself still subject to challenge.)  Concern over legality seems to have contributed to President Barack Obama’s tightening of drone-killing standards a year or so ago. The result? Since that time, “there has not been a single documented civilian casualty, child or adult, as a result of a drone strike in Waziristan.

► The role that children play in the story. Coll reports that a Pakistani documenter of human rights violations soon realized that data on drone-killings of adults stirred little interest; “if a drone missile killed an innocent adult male civilian, such as a vegetable vend[o]r or a fruit seller, the victim’s long hair and beard would be enough to stereotype him as a militant.” The documenter’s solution? “[F]ocus on children.” Thus were recorded, via photographs, the harm done to children in the course of drone attacks. Such photos helped fuel “a social-media contest,” Coll wrote, a contest that includes widely varying statistics about just how many civilians, of any age, have perished in U.S. strikes. The disparity makes it hard to evaluate — and thus hard to challenge — U.S. administration claims that drones are more humane, more precise than other sorts of aerial attacks.

Even if the claims are true, Coll questions whether that matters in the end. He cites a recent Foreign Affairs essay in which scholars Micah Zenko and Sarah Kreps argued that the promise of precision “may create more war.” And he writes of meeting in Islamabad with young men who acknowledged the upside of more precision, then added: “But they also talked about the suffering their families had endured — kidnappings, homes under pressure — and their own struggles to obtain an education. In their telling, the relative precision of the aircraft that assailed them wasn’t the point.”

In honor of the 150th anniversary today of the very first Geneva Convention on the laws of war, the International Committee of the Red Cross issued the brilliant video above: Rules of War in 4 very informative minutes. Through simple yet compelling drawings, it covers founding principles of international humanitarian law, such as humanity, distinction, necessity, and proportionality.

As an international story, it focuses on the men who were delegates to the 1863 Geneva Conference and their handiwork, the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field adopted on August 22, 1864.

It thus omits the vc007053U.S. after-story of this treaty; that is, the 1882 U.S. ratification that was the handiwork of a remarkable woman: Massachusetts-born Clara Barton (left), a pioneer nurse during America’s Civil War and, at age 60, a founder of the American Red Cross. (photo credit) For that after-story, see the 2012 IntLawGrrls post entitled Clara Barton, ICRC & crimes v. humanity, peace, by Washington University-St. Louis Law Professor Leila Nadya Sadat.

AAA_howethom_47898Suppose it’s like aiming at fish in a barrel to name the many flaws in The Monuments Men, now playing in cinemas. There’s the failed Oceans 1944 sense of it – it’s a buddy movie with no true friends. There’s the cinematography that looks like a green-screen loop of some field in the San Fernando Valley, accented by some surprisingly flat Paris street scenes. There’s the absence of any love interest; indeed, so little love is lavished on the artworks recovered by the “Men” (with the essential help of one woman) that the viewer is left wondering what the fuss was about.

This lawyer feels compelled to focus on a different flaw, on how the film squandered an opportunity to raise awareness about the laws of cultural heritage and armed conflict.

At one point in “Monuments,” the leader of the American search team questions a German colonel. Captured while destroying medieval and Renaissance masterpieces that the Nazis had seized from churches, private collections, and public museums, this POW refuses to talk: “I have done nothing wrong, and pursuant to the Geneva Convention, soon I will be repatriated.” The American’s oh-no-you-won’t retort turns on the colonel’s earlier actions at a concentration camp. It is an odd turn, given the film’s ostensible concern with looted art.

Well before World War II, international injunctions against such destruction already were in place. Armies were bound to distinguish between combatants and civilians, and only permitted to attack the person and property of the former. Article 23(g) of the Regulations concerning the Laws and Customs of War on Land, annexed to the 1899 Hague Convention (II) with Respect to the Laws and Customs of War on Land and to its 1907 reiteration, deemed it

‘especially prohibited … [t]o destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.’

Articles 25 and 28, dealing with attacks and pillage, reinforced this prohibition.

In short, the colonel’s actions respecting art were not just immoral. They were illegal, even then, a decade before the proscriptions were spelled out in detail via the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. Given the continued violations of such proscriptions – Syria and Mali jump to mind – one wishes the movie had stressed this fact.

(credit for 1946 photo of Belgian Lt. Raymond Lemaire and Capt. Edith Standen, U.S. Women’s Army Corps (neither mentioned in the film), holding a portrait by Peter Paul Rubens, part of Smithsonian Institution online exhibit on the “Monuments” recoveries)

fatouTwelve years ago today, a treaty aimed at removing anyone under 18 from combat entered into force – a milestone marked annually as Red Hand Day, also known as the International Day against the Use of Child Soldiers. A significant commemoration has been taking place all this week at The Hague, where International Criminal Court Prosecutor Fatou Bensouda and her staff have sought confirmation of child-soldiering charges brought against Bosco Ntaganda, the Congolese ex-militia leader who surrendered 11 months ago, after years as an ICC fugitive. (credit for photo, from video clip of Bensouda delivering opening statement at Monday’s session)

Ntaganda had been charged back in 2006 along with a colleague: Thomas Lubanga, the former leader whose trial led to the 1st ICC verdict, a 2012 conviction for the crimes of conscripting and enlisting children under 15 and of using them to take active part in hostilities in a non-international armed conflict, the 2002-2003 civil war in Ituri, a region in the eastern part of the Democratic Republic of the Congo. An ICC Trial Chamber ruled that the conduct occurred in violation of Article 8(2)(e)(vii) of the 1998 Rome Statute of the ICC.

At this week’s confirmation hearing, ICC Pre-Trial Chamber II – composed of Presiding Judge Ekaterina Trendafilova and Judges Hans-Peter Kaul and Cuno Tarfusser – has been considering the same charges against Ntaganda. The Prosecutor’s January 2014 submission to the chamber thus states (p. 5 ¶ 4):

‘… Bosco NTAGANDA is charged with the war crimes of enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities within the region of Ituri during the entire period of the charges.’

Most notably, prosecutors have lodged additional charges, charges not presented in Lubanga, of crimes committed against children while they were in Ntaganda’s militia. (An NGO statement on this development is here.) The same paragraph of the Prosecutor’s submission thus concludes:

‘He is also charged with rape and sexual slavery of child soldiers within his own group during this same geographic and temporal scope.’

The charges point toward a broader presentation of the ways that children are affected by armed conflict (an approach I discussed in this newly published article, “Children and the First Verdict of the International Criminal Court”; note that although I am honored to serve as the ICC Prosecutor’s Special Adviser on Children in and affected by Armed Conflict, I contribute this and all blog posts in my personal capacity).

The week-long confirmation hearing in Ntaganda is set to conclude tomorrow. Further information, including links to documents and webstreaming, available here.

nwc_leftCan the laws of war constrain robot warriors? Is international humanitarian law adaptable to the use of weapons that possess artificial intelligence? To what extent can such weapon systems determine who is, and who is not, a combatant? To what extent must humans control the decision to kill the enemy?

These questions and others fostered a fascinating discussion at “Legal Implications of Autonomous Weapon Systems,” a workshop at the Naval War College in Newport, Rhode Island, this past Thursday and Friday. We four dozen or so attendees were drawn from the armed forces of the United States, Australia, Britain, Canada, and Israel, from the International Committee of the Red Cross, and from a global array of academic institutions.

As one who reserves just a couple days for the topic in my Laws of War course, I came to the workshop with more questions than answers about the actual and potential uses in armed conflict of robots, the shorthand term I’ll use here for “autonomous weapons systems.” The military, characteristically, prefers an acronym: AWS.

The actual use of such weapons already is significant. Smart missiles called JDAMs deliver munitions to a target, while a WALL·E-looking machine called SWORDS has, as the U.S. Department of Defense wrote in 2004, “march[ed] into battle” alongside troops.

In fact, such machines tend not to be used in a fully independent manner (though with a little reprogramming, some could be). They are, we were told, semi-autonomous – humans are kept “in” or “on” the loop leading to choice of target and other decisions.

This mention of human supervision, like the WALL·E-on-the-march metaphor above, pointed to a pivotal workshop topic:

nwc_right►  Is it appropriate, as a matter of law or of ethics, to indulge in the human tendency to anthropomorphize these machines?

Apparently, some lab robots can recognize – or at least can mimic the act of recognizing – themselves in a mirror. Does this mean they are, or soon will be, sufficiently human-like to conduct operations wholly without oversight by actual humans? Might human-like robots evolve an ability to refuse programmed orders – orders that limited action to the boundaries of international humanitarian law? The answers to these questions, like many at the workshop, seemed to be “perhaps yes, perhaps no.”

At one end of the spectrum, this uncertainty has spurred a call for an outright ban. Emblematic is the headline of a notice about the November 2012 release of the Human Rights Watch report, Losing Humanity:

‘Ban ‘Killer Robots’ Before It’s Too Late: Fully Autonomous Weapons Would Increase Danger to Civilians’

At the other end of the spectrum, some would prefer to let the technology develop before the onset of any new legal regulation.

Many seem to fall in between. Acknowledged were some challenges; for instance:

► Does compliance with the precautions requirement of Article 57 of the Additional Protocol I (1977) to the four Geneva Conventions (1949) preclude the use of a fully autonomous weapon?

► Would the robotic commission of a war crime be susceptible to sanctions by global justice mechanisms like the International Criminal Court, and if not, what effective sanctions and deterrents would there be?

Persons falling in the vast middle of the regulatory spectrum harbored concerns about such questions, yet seemed to lean toward the view that if due care is taken, international humanitarian law can – and should – be applied. Documents discussed in this vein included the:

► U.S. Department of Defense Directive 3000.09, ¶ 4(a) (November 12, 2012), which states as “DoD policy” the following:

‘Autonomous and semi-autonomous weapons systems shall be designed to allow commanders and operators to exercise appropriate levels of human judgement over the use of force.’

heyns► April 9, 2013 report to the U.N. Human Rights Council by University of Pretoria Law Professor Christof Heyns, who’s served since 2010 as the Special Rapporteur on extrajudicial, summary or arbitrary executions. At ¶ 108 of his report, Heyns termed the 2012 Defense Directive as “imposing a form of moratorium” with respect to what he termed “lethal autonomous robotics,” or LARs. Heyns’ 2013 U.N. report (¶ 35) favored a broader scope for delay:

‘The present report … calls on States to impose national moratoria on certain activities related to LARs.’

A reprise of such issues likely will occur at the Meeting of Experts on Lethal Autonomous Weapons Systems set for May 13 to 16 in Geneva under the auspices of the 1980 Convention on Certain Conventional Weapons. Named in full the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects as amended on 21 December 2001, this treaty has 117 states parties, including the United States.

The Naval War College International Law Department workshop’s vital and timely discussion exposed many avenues for study – study sooner rather than later, so that the legal regulatory framework may be determined before fully autonomous robots are fully deployed.