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)