use of force

logo2“The Gendered Imaginaries of Crisis in International Law” is the provocative title of a panel for which the Feminism and International Law Interest Group of the European Society of International Law is seeking papers. Papers selected will form part of the Interest Group’s proposal for a panel at the next ESIL annual meeting, set for Sept. 8-10, 2016, in Riga, Latvia. Organizers Loveday Hodson (Leicester Law), Troy Lavers (Surrey Law), Gina Heathcote (SOAS), Emily Jones, and Bérénice K. Schramm (SOAS) describe the panel as follows:

Set up as a roundtable rather than a traditional panel, the agora aims at providing an interactive platform for feminist and/or gender-related engagement with the past, present and future of international law within and without its recurrent crises.

Full call for papers here. Deadline for submissions is Jan. 31, 2016.

refugeechildrenww1Seldom do we see footage made during the 20th C.’s 1st global conflict. That fact makes especially valuable these images, from a 3-minute video of scenes from World War I, which began 100 years ago this summer and continued for another 4 years thereafter.medalgirlww1

As one might expect, the video includes battle scenes, trench warfare, aerial combat, and torpedoes fired at sea. There are images of bombed-out homes and bereft refugees, evidence of war’s effects refugeecoldww1on civilians. And as these screenshots indicate, there are scenes of children and war: Children made to play the part of soldiers. Children stunted by starvation. Child refugees, shivering in an unsheltered winter. childrenww1

Kudos to European Film Gateway and the United Nations for this sad reminder of how little some things change.

Following a raft of ratifications this week, the Arms Trade Treaty is 4/5 of the way toward entry into force.

Paying-the-priceDepositing their instruments of ratification on Tuesday were Australia, Austria, Belgium, Burkina Faso, Jamaica, Luxembourg, Saint Vincent and the Grenadines, and Samoa. They join 30 other countries that’ve become full members of the treaty since its adoption by the U.N. General Assembly on April 2, 2013. Ten more joinders are needed for the treaty to take effect.

In its 28 articles, the Arms Trade Treaty provides for states parties’ regulation of traffic in a range of arms, from battle tanks to light weapons. (Prior posts available here.) As indicated by the Control Arms poster above, regulating the latter is a principal aim of treaty proponents. (image credit)

Among the 5 permanent members of the U.N. Security Council (among them major arms-exporting states), Britain and France have ratified. The United States signed last September, but the treaty has not been presented to the Senate for consideration. China has not signed; Deutsche Welle reported this week:

‘China has indicated that it would consider signing if the US ratified, which is unlikely to happen.’

And in late May, the Voice of Russia reported that the Russian Federation would not sign, for the following reasons:

‘Russia considers this document to be not completely thought through. It also discriminates against the Russian military-industrial complex.’

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)

PortraitAmid an agenda chockablock with briefings on global crises, there will be an open U.N. Security Council debate on children and armed conflict this Friday morning.

The debate will occur during the month that Luxembourg presides over the Security Council. (Though just 5 days old, Luxembourg’s Presidency already has been busy, with its U.N. Permanent Representative, Ambassador Sylvie Lucas (left), chairing multiple emergency Council sessions concerning Russia’s intervention in Ukraine.)

Since 2013 Luxembourg also has held the Presidency of the Security Council Working Group on Children and Armed Conflict, the entity that administers initiatives begun in Security Council Resolution 1612 (2005) and reinforced by many subsequent resolutions. Indeed, Friday’s Security Council open debate is expected to end in the adoption of a new resolution on children and armed conflict.

According to a post at What’s in Blue, an online publication of the independent nonprofit organization Security Council Report, Luxembourg’s Foreign Minister, lzJean Asselborn, will chair the debate. Scheduled speakers include: U.N. Secretary-General Ban Ki-moon; Under-Secretary-General Leila Zerrougui (right; prior posts), the Special Representative to the Secretary-General for Children and Armed Conflict; UNICEF Executive Director Anthony Lake; Under-Secretary-General Hervé Ladsous, Director of Peacekeeping; and a former child soldier, Alhaji Babah Sawaneh of Sierra Leone.

The afternoon before the debate, the Luxembourg U.N. Mission and UNICEF will launch a “Children Not Soldiers” campaign.

mjidTo be held at U.N. headquarters in New York, the campaign launch and debate will occur just days before other key U.N. events. According to the schedule available here, children will be the focus of March 12 and 13 meetings of the U.N. Human Rights Council, meeting this month in Geneva, Switzerland. The schedule includes a daylong session on children’s rights, as well as presentations by: Under-Secretary-General Zerrougui; Najat Maalla M’jid (above), the Special Rapporteur on the Sale of Children, Child Prostitution and Child santosPornography; and Marta Santos Pais (right), the Special Representative to the Secretary-General on Violence against Children.

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.

ihlybkAccountability for child soldiering figures prominently in the just-published 2012 Yearbook on International Humanitarian Law. Part II of volume 15, titled “Child Soldiers and the Lubanga Case,” comprises 3 articles:

Between Consolidation and Innovation: The International Criminal Court’s Trial Chamber Judgment in the Lubanga Case. This article focuses on aspects of the 2012 International Criminal Court judgment in Lubanga; specifically, the Trial Chamber’s: definition of the war crimes of conscription, enlistment, and use of child soldiers, as well as its determination that the underlying conflict was not of international character. The author is Dr. Sylvain Vité, now at Bilkent University in Ankara, Turkey.

The Effects of the Lubanga Case on Understanding and Preventing Child Soldiering. The author of this survey of the Lubanga judgment is Washington & Lee University Law Professor Mark A. Drumbl, whose most recent book, Reimagining Child Soldiers, I reviewed in the American Journal of International Law.

Sexual Violence Against Children on the Battlefield as a Crime of Using Child Soldiers: Square Pegs in Round Holes and Missed Opportunities in Lubanga. This article takes the ICC Office of the Prosecutor to task for “[m]isconceptions … which saw the crime of use conflated with conscription/enlistment,” in a way that the author, Joe Tan, an attorney at the British NGO Human Dignity Trust, maintains undercut the prosecution of sexual violence.

(credit for photo of new IHL Yearbook, which also discusses cyberwarfare and the Tallinn Manual)

Animated-Flag-BelgiumThe global push to make the aggressive use of armed force a crime punishable by the International Criminal Court picked up another supporter this week.

Belgium deposited its ratification of the Kampala amendments to the ICC Statute on Tuesday, thus becoming the 12th ICC state party to support the amendments, which, as previously posted here, here, and here, define the crime and set out the paths by which persons suspected of responsibility for aggression may be called to account before the ICC.

Pursuant to the compromise reached at the 2010 ICC Review Conference in Kampala, Uganda, the amendments may not take effect before 2017, and then only after a further vote and the ratification by at least 30 states. Belgium’s joinder this week means the ratifications halfway point is near. Indeed, a tally of pledges made by other states both before and during this month’s annual meeting of the ICC Assembly of States Parties reveals that it is quite likely that the 30-ratification threshold will be reached well before 2017. (See my October post and the recent statements in the Crime of Aggression Twitter feed.)

usflagBut that was not the only crime-of-aggression news this month. Also at the Assembly meeting, just five days before Belgium deposited its joinder, the most vocal of ICC nonparty states weighed in: the United States’ top international criminal justice diplomat urged states not to make the crime of aggression punishable. That diplomat – Ambassador Stephen J. Rapp, head of the State Department’s Office of Global Criminal Justice – concluded his November 21 address to the Assembly by stating:

‘Another challenge with which the international community needs to grapple involves the crime of aggression.’

He made clear that U.S. statements against the amendments, made just after the end of the Kampala conference, still held:

‘The United States continues to have many concerns about the amendments adopted in Kampala, including the risk of these amendments working at cross-purposes with efforts to prevent or punish genocide, crimes against humanity, and war crimes—which provide the very raison d’être for the Court.’

And he urged a rethinking of the endeavor:

‘The States Parties were wise to create breathing space by subjecting the Court’s jurisdiction to a decision to be taken after January 1, 2017. The international community should use that breathing space to ensure that efforts to ensure accountability for genocide, crimes against humanity, and war crimes can be consolidated and that measures regarding the amendments requiring attention can be properly considered; …’

With that, Rapp concluded:

‘… and it is our view that States should not move forward with ratifications pending the resolution of such issues.’

His exhortation appears not to have moved some states, including some of the United States’ NATO partners – among them, Belgium, Estonia, Germany, Luxembourg, and Slovenia, which already have ratified, as well as Croatia, the Czech Republic, Romania, Slovakia, and Spain, which reportedly are working toward ratification.

Rather quiet in this debate are 2 states parties that belong to NATO and also hold permanent seats at the U.N. Security Council. How Britain and France proceed remains to be seen.

p5Rather muted in the U.S. press is France’s recent call for “self-restraint” on its part and that of its veto-friendly partners in the P-5.

The P-5, of course, are the 5 countries with permanent membership on the U.N. Security Council. By U.N. Charter mandate, each of the 5 enjoys the right to veto a resolution authorizing intervention – even if the rest of the 15-member Council finds harm to international peace and security. As has been evident in the 2-plus years of Syria’s civil war, by exercising its veto a P-5 member can leave a matter run its course without international intervention no matter what the casualty count.

France has suggested a way out of this predicament. As stated in an op-ed that Foreign Minister Laurent Fabius published October 4 in Le Monde, in French, and in the International Herald-Tribune, in English, here’s the idea:

‘[T]he five permanent members of the Security Council – China, France, Russia, Britain and the United States – themselves could voluntarily regulate their right to exercise their veto. The Charter would not be amended and the change would be implemented through a mutual commitment from the permanent members. In concrete terms, if the Security Council were required to make a decision with regard to a mass crime, the permanent members would agree to suspend their right to veto.’

How to determine when the commitment is in play? It’s “simple,” Fabius wrote:

‘[A]t the request of at least 50 member states, the United Nations secretary general would be called upon to determine the nature of the crime. Once he had delivered his opinion, the code of conduct would immediately apply.’

Fabius recognized “that objections of all kinds can be made,” and sought to deflect some of them with this caveat:

‘[T]his code would exclude cases where the vital national interests of a permanent member of the Council were at stake.’

It is not a new idea. As pointed out in an October 3 lecture at Georgia Law by Lee A. Feinstein, the former U.S. Ambassador to Poland who’s teaching here this semester, a similar idea appeared as Principle 3(D) of The Responsibility to Protect, the 2001 Report of the Independent Commission on Intervention and State Sovereignty, which launched the responsibility to protect concept.

What is new is that the show of support comes from a P-5 state itself. Yet it must be mentioned that France has vetoed far fewer times than most of its peers on the P-5. And those peers likely will be far less enamored of France’s idea, as Mark Goldberg posted at UN Dispatch.

What could draw those peers toward France’s idea? Perhaps an understanding that a P-5 member’s “vital national interests” are “at stake” whenever a resolution implicates the member’s client state. But then adoption would be hollow, for such a proviso would sap the proposal of its strength.

(credit for September 2013 U.N. photo by Mark Garten of, from left, British Foreign Secretary William Hague, French Foreign Minister Laurent Fabius, Russian Foreign Minister Sergey Lavrov, U.N. Secretary-General Ban Ki-moon, U.S. Secretary of State John Kerry, and Chinese Foreign Minister Wang Yi)

UN_Members_FlagsEven before yesterday’s news that Israel might follow Syria in joining the Convention on the Prohibition of Chemical Weapons, worth noting was recent state action on treaties intended to increase international peace and security, for children and adults alike.

In the course of last week’s U.N. Treaty Event, lots of press was given to the United States’ lone show of support in this area; that is, Thursday’s signing of the 2013 Arms Trade Treaty. Yet at least as significant as that tentative show of support – also made by more than a score of other states – were countries’ full joinders of various pacts. (photo credit) Here’s what happened with regard to some other treaties of interest:

Peace, security, accountability

► 2010 Amendments on the crime of aggression to the Rome Statute of the International Criminal Court: Andorra, Cyprus, Slovenia, and Uruguay ratified or accepted, bringing the total number of adherents to 11. The United States is not among them. As detailed in posts here and here, these amendments cannot take effect any earlier than 2017, and then only if 30 states have accepted and a further vote has been taken. According to tweets from the Crime of Aggression project, countries working toward ratification include Argentina, Australia, Austria, Belgium, Brazil, Chile, the Czech Republic, Finland, New Zealand, Romania, Slovakia, Spain, Switzerland. If all join, the amendments would be 6 short of the minimum required.

► 2010 Amendment to Article 8 of the Rome Statute of the International Criminal Court: Andorra, Cyprus, Slovenia, and Uruguay ratified or accepted this treaty, which would enumerate as crimes in non-international armed conflict certain acts now prohibited only with respect to international armed conflict. The total number of adherent now stands at 14. The United States has not approved these amendments, which cannot take effect any earlier than 2017, and then only if 30 states have accepted and a further vote has been taken.

► 1996 Comprehensive Nuclear Test-Ban Treaty: Guinea-Bissau ratified, bringing the total number of parties to 161. Despite the high level of participation, this treaty cannot enter into force unless certain countries have joined. Among those is the United States, which signed in 1996 but has not ratified, the Senate having rejected the treaty in 1999.

► 1984 Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment: Guinea-Bissau ratified, bringing to 154 the total number of parties – the United States among them. Angola signed; the treaty has 80 signatories.

► 1948 Convention on the Prevention and Punishment of Genocide: Guinea-Bissau acceded, bringing to 143 the total number of parties – the United States among them.

► 2006 International Convention for the Protection of All Persons from Enforced Disappearance: Guinea-Bissau signed this treaty, which entered into force in 2010. It now has 93 signatories and 40 parties. The United States has neither signed nor ratified.

Children’s rightsUnicef_Children

► 2011 Optional Protocol to the Convention on the Rights of the Child on a communications procedure: Montenegro and Portugal ratified this treaty, which would allow children to bring complaints to the U.N. Committee on the Rights of the Child. That brings the total number of adherents to 8; the treaty cannot enter into force until after the deposit of 10 instruments of ratification or accession. Benin, Côte d’Ivoire, Ghana, Guinea-Bissau, and Seychelles signed, bringing the total number of signatories to 42. The United States has neither signed nor ratified this treaty.

► 2000 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography: the Russian Federation ratified this treaty, which entered into force in 2002. That brings to 165 the total number of parties. The United States is among them.

Complete record of Treaty Event activities here.